O.A. Barner Jr. v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Oris A. Barner Jr., :
Petitioner :
:
v. : No. 795 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent : Submitted: May 19, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: July 25, 2023
Petitioner Oris A. Barner, Jr., petitions this Court for review of a June 2, 2022
order by Respondent Pennsylvania Parole Board (Board) affirming the Board’s May
5, 2022 decision that recommitted Barner as a convicted parole violator and assigned
him a parole violation maximum date of July 6, 2023. Barner, who has not submitted
a brief to this Court, argues that the Board erred by failing to grant him all due credit
for time spent in custody. Also before this Court is an Application for Withdrawal
of Appearance (Withdrawal Application), submitted by David Crowley, Esq.
(Counsel), Barner’s court-appointed attorney. Therein, Counsel contends that the
issues raised in Barner’s Petition for Review are without merit. After review, we
grant the Withdrawal Application and affirm the Board’s order.
I. Background
Following his conviction of narcotics offenses, Barner was sentenced on
January 17, 2014, to a period of imprisonment not to exceed five years and six
months. Certified Record (C.R.) at 1. Barner was paroled on April 24, 2017, and
informed that, if he was convicted of another crime while on parole, the Board
maintained the authority to recommit him to the balance of the sentence which he
had been serving, with no credit for time at liberty on parole. Id. at 8. Barner
absconded from supervision on April 11, 2018, and was declared delinquent by the
Board as of that date. Id. at 13. On April 24, 2018, Barner was arrested by Easton
Police on suspicion of committing new criminal offenses. Id. at 22.
On March 12, 2019, the Board issued an arrest warrant for Barner, who was
still absconded from supervision. Id. at 14. The record indicates that Barner was
detained on the Board’s warrant from March 12, 2019, until March 28, 2019. Id. at
116. On the latter date, Northampton County authorities continued to detain Barner
in connection to criminal charges stemming from his April 24, 2018 arrest. Id. at
56. Due to the new criminal charges, the Board recommitted Barner as a technical
parole violator on April 11, 2019. Id. at 51. Accordingly, Barner was informed that
his parole violation maximum date was extended to January 16, 2020, subject to
further extension if the latest charges resulted in conviction. Id. at 52. On January
16, 2020, upon the expiration of the Board’s detainer, Barner remained incarcerated
due to the Northampton County charges. Id. at 94.
On August 25, 2021, following guilty pleas, Barner was sentenced in
Northampton County to a period of imprisonment not to exceed seven years and six
months.1 Id. at 111. Accordingly, the Board recommitted Barner as a convicted
parole violator to serve his unexpired term as of September 29, 2021, the date on
which it issued a new detainer warrant for Barner. Id. at 113. In a subsequent
decision, the Board set Barner’s parole violation maximum date to July 6, 2023,
1
Barner was additionally sentenced to 18 to 60 months’ imprisonment for a separate
conviction, to be served consecutively. C.R. at 60.
2
giving Barner just 16 days of confinement credit.2 Barner was informed that he
would not be awarded any credit for time at liberty on parole, because his new
convictions were similar to his original charges, and because he had absconded while
on parole. Id. at 112. Additionally, Barner’s sentence for the Northampton County
convictions would not begin until the July 6, 2023 completion of his prior sentence.3
Barner timely filed an administrative appeal of the Board’s determination on
May 23, 2022. Id. at 114. The Board affirmed its decision in a response mailed on
June 1, 2022. Id. at 116. Therein, the Board explained that, when Barner was
paroled on April 24, 2017, 661 days of his original sentence remained. Id. When
Barner returned to custody on March 12, 2019, he was only detained for the
following 16 days in connection to the Board’s warrant. Id. From March 28, 2019
until April 11, 2019, Barner was incarcerated due to the Northampton County
charges. Id. From April 11, 2019, until January 16, 2020, Barner was incarcerated
in connection with his technical violations, a period which also was not to be credited
to his original sentence. Id. at 116-17. Thus, the Board explained, 645 days of
imprisonment were properly imposed on Barner due to his previous sentence,
resulting in a new maximum date of July 6, 2023.4 Id. at 117.
2
The 16 days of credit correspond to the period of detention following the issuance of the
Board warrant on March 12, 2019, until March 28, 2019, the date on which Barner continued to
be detained in lieu of bail on the charges stemming from his April 24, 2018 arrest. C.R. at 49.
3
Section 6138(a)(5)(i) of the Prisons and Parole Code provides that, if a new sentence is
imposed on an offender, “the service of the balance of the term originally imposed by a
Pennsylvania court shall precede the commencement of the new term imposed . . . [i]f a person is
paroled from a State correctional institution and the new sentence imposed on the person is to be
served in the State correctional institution.” 61 Pa.C.S. § 6138(a)(5)(i).
4
It should be noted that, pursuant to Taylor v. Pennsylvania Board of Probation and
Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000), “the expiration of a parolee’s maximum term
(Footnote continued on next page…)
3
On July 21, 2022, Barner petitioned this Court for review of the Board’s
decision. In an August 12, 2022 order, we appointed Counsel to represent Barner.
Counsel then filed an Amended Petition for Review on Barner’s behalf on
September 12, 2022. Therein, Barner maintained that the Board erred when it “failed
to credit [his] original sentence with all the time to which he was entitled.” Am.
Pet. for Review ¶ 7.
Counsel filed his Withdrawal Application on December 27, 2022. Therein,
Counsel averred that he had reached the “unfortunate conclusion that [Barner’s]
appeal is without merit.” Withdrawal Application (App.) ¶ 2. Counsel also certified
that he informed Barner of his intent to withdraw, and advised him “of his right to
retain new counsel or raise any points that he might deem worthy of consideration.”
Id. ¶ 3. A copy of the Withdrawal Application was served upon Barner via first-
class mail, pursuant to Rule of Appellate Procedure 121(c)(2).5 See Certificate of
Service, 12/29/2022. Alongside the Withdrawal Application, Counsel also
submitted a so-called Turner letter to this Court,6 in which he explained his
conclusion “that there exists no legal basis to challenge the Board determinations.”
renders an appeal of a Board revocation order moot.” However, since Barner is currently
completing his sentence on the Northampton County charges, and the issues raised here may affect
his new maximum date in the future, the passing of Barner’s July 6, 2023 maximum date does not
render the instant matter moot. See Mesko v. Pa. Bd. of Prob. and Parole, 245 A.3d 1174, 1178
n.5 (Pa. Cmwlth. 2021) (explaining that the appeal of a Board order “is not rendered moot” by the
expiration of a parolee’s maximum term, where “the issues raised . . . may affect his new maximum
date on [new] charges in later proceedings”).
5
Rule 121(c)(2) provides that service may be by first class, express, or priority United
States Postal Service mail, and that the service is “complete upon mailing.” Pa.R.A.P. 121(c)(2).
6
Pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), an attorney may seek to
withdraw from representation of a parole violator through the issuance of a letter explaining that
the violator’s case “lacks merit, even if it is not so anemic as to be deemed wholly frivolous.”
Anderson v. Pa. Bd. of Prob. and Parole, 237 A.3d 1203, 1204 (Pa. Cmwlth. 2020).
4
Turner Letter at 1. Counsel certified that a copy of the Turner letter, too, was served
upon Barner via first-class mail. See Certificate of Service, 12/27/2022.
Upon consideration of Counsel’s Withdrawal Application, this Court issued
an order dated January 6, 2023, directing Barner either to obtain substitute counsel
at his own expense or to file a brief on the merits of the Amended Petition for Review
on his own behalf. We also directed Counsel to serve a copy of the order upon
Barner. Accordingly, Counsel filed a certificate of service confirming that he had
served a copy of the order upon Barner via first class mail. We issued an additional
order on May 22, 2023, in which we directed the parties to submit briefs on the
Withdrawal Application as well as on the merits of Barner’s appeal. As of the date
of this opinion, Barner has still not submitted a brief to this Court.7
II. Discussion
A. The Withdrawal Application and Turner Letter
Before addressing the merits of Barner’s arguments,8 we must first determine
the validity of Counsel’s Withdrawal Application. Because Counsel concluded that
the sole issue in Barner’s appeal (that is, whether the Board erred in recalculating
Barner’s maximum date) was without merit, Counsel properly elected to file the
Withdrawal Application along with a Turner letter. In the later document, court-
appointed counsel who seeks to withdraw must detail the nature and extent of
counsel’s review, list each issue that would be raised, and explain why the issues are
7
In addition, the Board has not submitted a brief or other document supporting its
determination.
8
Our standard of review in the context of Board decisions is limited to determining whether
the Board violated a petitioner’s constitutional rights or committed an error of law and whether
the Board’s findings of fact are supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2 Pa.C.S. § 704.
5
lacking in merit. Turner, 544 A.2d at 928-929. Counsel must then comply with the
technical requirements set forth in Craig v. Pennsylvania Board of Probation and
Parole, 502 A.2d 758, 761 (Pa. Cmwlth. 1985): counsel must notify the client of his
request to withdraw, provide the client with a copy of his Turner letter, and advise
the client of his right to retain new counsel or raise any points he may deem worthy
of consideration. Id. If the court agrees with counsel’s assessment of the issues after
its own, independent review, counsel will be permitted to withdraw. Turner, 544
A.2d at 929.
In this case, the Turner letter presented by Counsel to this Court outlines the
issue raised in Barner’s appeal, and explains Counsel’s conclusion that the issue is
without merit. Counsel also certifies that he has notified Barner of his intent to
withdraw, furnished Barner with a copy of his Turner letter, and advised him of the
right to retain new counsel or raise any points he may deem worthy of consideration,
pursuant to Craig. Counsel’s Withdrawal Application and Turner letter therefore
meet the relevant requirements. Thus, before we grant the Withdrawal Application,
it becomes this Court’s responsibility to examine the proceedings and make an
independent judgment as to whether the appeal itself is lacking in merit.
B. The Amended Petition for Review
In Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571
(Pa. 1980), our Supreme Court adopted the rule that, “if a defendant is being held in
custody solely because of a detainer lodged by the Board and has otherwise met the
requirements for bail on the new criminal charges, the time which he spent in custody
shall be credited against his original sentence.” The Gaito rule further provides that,
if the defendant “remains incarcerated because he has failed to satisfy bail
requirements on the new criminal charges, then the time spent in custody shall be
6
credited to his new sentence.” Id. By the same token, the Board may not apply
credit to the defendant’s original sentence if the defendant is in custody because of
his failure to meet bail requirements along with a Board detainer. Smith v. Pa. Bd.
of Prob. and Parole, 171 A.3d 759, 771 (Pa. 2017).
Instantly, Barner was paroled on April 24, 2017, with 661 days remaining of
his prison sentence. C.R. at 8. Having absconded from supervision, Barner was
arrested on a Board detainer on March 12, 2019, and remained in custody solely due
to that detainer until March 28, 2019. Id. at 110. From the latter date until
September 29, 2021, Barner remained in custody because of new criminal charges
issued in Northampton County. Id. The Board then recommitted Barner as a
convicted parole violator to the unserved balance of his original sentence as of
September 29, 2021. Id. at 108. The Board informed Barner that, pursuant to Gaito,
he was given credit for the 16 days in 2019 that he was in custody solely because of
the Board detainer. Id. at 117. Accordingly, as of September 29, 2021, Barner was
required to serve the 645 remaining days of his original sentence, resulting in a
recalculated maximum date of July 6, 2023. Id.
Barner maintains that he is entitled to credit not only for the time spent in
custody solely on the Board detainer, but also for the time spent in custody on the
Northampton County charges.9 Such an argument is baseless. As explained above,
Barner is only entitled to credit for the 16 days he spent in custody solely due to the
Board’s detainer, not when he was also in custody on the Northampton County
charges. Thus, the Board correctly added the unserved balance of Barner’s original
sentence of 645 days to the date on which he was detained on the new Board warrant.
9
To understand the basis of Barner’s appeal in the absence of a brief, we rely in part on
the summary of Barner’s arguments given in Counsel’s Turner letter.
7
III. Conclusion
For the foregoing reasons, we grant Counsel’s Withdrawal Application and
affirm the Board’s June 2, 2022 order.
____________________________
ELLEN CEISLER, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Oris A. Barner Jr., :
Petitioner :
:
v. : No. 795 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 25th day of July, 2023, David Crowley, Esquire’s
Application for Withdrawal of Appearance is hereby GRANTED, and the June 2,
2022, order of the Pennsylvania Parole Board is AFFIRMED.
____________________________
ELLEN CEISLER, Judge