D. Wright-Wilson v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derrick Wright-Wilson, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 1066 C.D. 2022
Respondent : Submitted: May 19, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 25, 2023
Derrick Wright-Wilson (Wright-Wilson) petitions this Court for review
of the Pennsylvania Parole Board’s (Board) September 9, 2022 order denying his
request for administrative relief. Wright-Wilson is represented in this matter by
court-appointed counsel, Kent D. Watkins, Esquire (Counsel), who has filed an
Application to Withdraw Appearance (Application) and submitted a no-merit letter
in support thereof. After review, we grant Counsel’s Application and affirm the
Board’s order.
Wright-Wilson is an inmate at the State Correctional Institution (SCI)
at Frackville.1 On November 11, 2015, the Dauphin County Common Pleas Court
(trial court) sentenced Wright-Wilson to serve three concurrent three- to six-year
sentences for three counts of robbery and one count of criminal conspiracy (Original
Sentence). See Certified Record (C.R.) at 1. His Original Sentence maximum
1
See http://inmatelocator.cor.pa.gov (last visited August 24, 2023).
release date was February 6, 2021. See id. By December 3, 2018 order, the Board
granted Wright-Wilson parole from his Original Sentence. See C.R. at 10. The
Board released him on parole on May 9, 2019. See id.
On August 28, 2020, Swatara Township police arrested Wright-Wilson
and charged him with fleeing and attempting to elude the police, driving under
suspension, failing to have required financial responsibility, and accidents involving
damage to unattended vehicle or property (New Charges). On August 28, 2020, the
Board issued a warrant to commit and detain Wright-Wilson. See C.R. at 38. Also
on August 28, 2020, the trial court set Wright-Wilson’s bail at $25,000.00 which he
did not post. See C.R. at 84. On September 17, 2020, Wright-Wilson waived legal
representation and his detention hearing. See C.R. at 41. On October 5, 2020, the
Board directed that Wright-Wilson be detained pending disposition of the New
Charges. See C.R. at 59. On February 6, 2021, the Board cancelled the August 28,
2020 warrant to commit and detain. See C.R. at 60.
On November 1, 2021, Wright-Wilson pled guilty to the New Charges
and the trial court sentenced him to 18 to 36 months of confinement in an SCI (New
Sentence). See C.R. at 65. The trial court gave Wright-Wilson credit toward his
New Sentence for the 431 days he served between August 28, 2020 and November
1, 2021. On November 10, 2021, the Board issued a warrant to commit and detain.
See C.R. at 61. On January 10, 2022, the Board issued a Notice of Charges based
on Wright-Wilson’s new conviction on the New Charges, see C.R. at 65, and on the
same date, Wright-Wilson waived his revocation hearing and legal representation
and admitted to the new conviction. See C.R. at 67.
On January 24, 2022, the Board recommitted Wright-Wilson to an SCI
as a convicted parole violator (CPV) based on his conviction for the New Charges.
The Board awarded 477 days of credit (or 1 year, 3 months, and 19 days) from May
9, 2019 to August 28, 2020, for the time he spent in good standing at liberty on
2
parole. See C.R. at 121. The Board calculated that Wright-Wilson owed 162 days
(or 5 months and 9 days) of backtime. See id. The Board recomputed Wright-
Wilson’s Original Sentence maximum release date as July 1, 2022. See id.
Wright-Wilson, pro se, filed an administrative remedies form alleging
therein:
I was recommitted to a[n SCI on] November 10[,] 2021[,]
as a parole violat[o]r. My backtime was suppose[d] to
start November 10[,] 2021[,] but instead it started January
24[,] 2022. So that’s 75 days uncounted for towards the
backtime of 162 days that is presumed that I owe. That 75
days of uncounted time will take my [Original Sentence]
maximum [release] date in the system from July 1[,]
2022[,] to April 21[,] 2022. Another correction I will [sic]
like to be made is the additional 14 days that was added on
my [O]riginal [Sentence] maxi[mum release] date. My
[O]riginal [Sentence] maxi[mum release] date is
suppose[d] to be January 23[,] 2021[,] but in the system
it’s February 6[,] 2021. That is an extra 14 days I
shouldn’t be doing. So[,] deduct the 14 days from my
April 21[] date which would be April 7[,] 2022.
C.R. at 126.
On September 9, 2022, construing Wright-Wilson’s request for relief
as a Petition for Administrative Review, the Board affirmed its decision. Wright-
Wilson appealed to this Court.2 On December 21, 2022, Counsel filed the
Application and no-merit letter. On January 4, 2023, this Court ordered that
Counsel’s Application would be considered along with the merits of Wright-
Wilson’s appeal.
This Court must first review Counsel’s no-merit letter.
2
“This Court’s review determines whether the Parole Board’s adjudication is supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704[.]” Smoak
v. Talaber, 193 A.3d 1160, 1163 n.2 (Pa. Cmwlth. 2018).
.
3
“A [no-merit] letter must include an explanation of ‘the
nature and extent of counsel’s review and list each issue
the petitioner wished to have raised, with counsel’s
explanation of why those issues are meritless.’” Seilhamer
[v. Pa. Bd. of Prob. & Parole], 996 A.2d [40,] 43 [(Pa.
Cmwlth. 2010)] (quoting [Commonwealth v.] Turner, 544
A.2d [927,] 928 [(Pa. 1988)]) (some alterations omitted).
As long as a [no-merit] letter satisfies these basic
requirements, we may then review the soundness of a
petitioner’s request for relief. However, if the [no-merit]
letter fails on technical grounds, we must deny the request
for leave to withdraw, without delving into the substance
of the underlying petition for review, and may direct
counsel to file either an amended request for leave to
withdraw or a brief on behalf of [his/her] client.
Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1207 (Pa. Cmwlth. 2020)
(citation omitted). “[C]ounsel must fully comply with the procedures outlined in
Turner to ensure that each of the petitioner’s claims has been considered and that
counsel has [] substantive reason[s] for concluding that those claims are meritless.”
Hont v. Pa. Bd. of Prob. & Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996). Counsel
is also required to “notify the parolee of his request to withdraw, furnish the parolee
with [] a copy of . . . [the] no-merit letter satisfying the requirements of Turner, and
inform the parolee of his right to retain new counsel or submit a brief on his own
behalf.” Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006).
This Court must then “conduct its own independent review of the petition to
withdraw and must concur in counsel’s assessment before [it] may grant counsel
leave to withdraw.” Hont, 680 A.2d at 48.
Here, Counsel’s no-merit letter contains the procedural history of
Wright-Wilson’s case, describes the issues raised in Wright-Wilson’s Petition for
Administrative Review, and provides Counsel’s review of the record and relevant
law. Counsel represents therein that Wright-Wilson’s chief challenge is that the
Board used incorrect dates to calculate his Original Sentence maximum release date.
4
Counsel served Wright-Wilson with the no-merit letter and his Application, and
notified Wright-Wilson that he may either obtain substitute counsel or file a brief on
his own behalf.3 Further, Counsel provides sufficient reasons why Wright-Wilson’s
issues are without merit. See Counsel No-Merit Letter at 6-9. Accordingly, this
Court concludes that Counsel complied with Turner’s technical requirements and
will now independently review the merits of Wright-Wilson’s appeal to determine
whether to grant or deny Counsel’s Application.
In accordance with Section 6138(a)(4) of the Prisons and Parole Code
(Code), 61 Pa.C.S. § 6138(a)(4), “[t]he period for which the offender is required to
serve shall be computed by the board and shall begin on the date that the parole
violator is taken into custody to be returned to the institution as an offender.” In
addition, Section 6138(a)(5) of the Code provides:
If a new sentence is imposed on the offender, the service
of the balance of the term originally imposed by a
Pennsylvania court shall precede the commencement of
the new term imposed in the following cases: (i) If 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).
However, it is well established that the requirement that a
CPV serve the balance of his original sentence is
only operative once “parole has been revoked and the
remainder of the original sentence becomes due and
owing.” Campbell v. P[a.] B[d.] of Prob[. &] Parole, . . .
409 A.2d 980, 982 ([Pa. Cmwlth.] 1980); see also Hill v.
P[a.] B[d.] of Prob[. &] Parole, 683 A.2d 699, 702 (Pa.
Cmwlth. 1996) (holding that where the Board recommits
a CPV to serve the balance of the original sentence before
beginning service of a new term, the prisoner’s service of
3
Wright-Wilson did not obtain substitute counsel or file a brief.
5
backtime on the original sentence must be computed from
the date the Board revokes the prisoner’s parole).
Therefore, “credit for time a CPV spends in custody
between imposition of a new sentence and revocation of
parole must be applied to the new sentence.” Williams v.
P[a.] B[d.] of Prob[. &] Parole, 654 A.2d 235, 237 (Pa.
Cmwlth. 1995). Parole revocation occurs once a hearing
examiner and Board member or two Board members sign
a hearing report recommitting a prisoner as a CPV. Wilson
v. P[a.] B[d.] of Prob[. &] Parole, 124 A.3d 767, 770 (Pa.
Cmwlth. 2015); see also Palmer v. P[a.] B[d.] of Prob[.
&] Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016) (same).
Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d 382, 391-92 (Pa. Cmwlth. 2019).
Here, the trial court credited Wright-Wilson with 431 days on his New
Sentence for the time he served between his arrest on August 28, 2020, and his
November 1, 2021 conviction on the New Charges.
By September 9, 2022 decision, the Board affirmed its January 24, 2022
order, explaining:
The Board paroled Wright-Wilson from a[n SCI] on May
9, 2019[,] with a maximum date of February 6, 2021[,] on
his [O]riginal [S]entence . . . . This means that Wright-
Wilson was left with 639 days remaining on his [O]riginal
[S]entence the day he was released. The Board in its
discretion awarded Wright-Wilson credit for the time
spent at liberty on parole based on his recommitment as a
[CPV]. 61 Pa.C.S. § 6138(a)(2.1). This means the Board
applied credit for 477 days from May 9, 2019, the day
Wright-Wilson was released on parole, to August 28,
2020, the day that he was arrested for [N]ew [Charges] and
the day the Board’s detainer was lodged against him. This
means that Wright-Wilson owed 639 - 477 = 162 days on
his [O]riginal [S]entence based on the recommitment.
Because Wright-Wilson failed to post bail on the [N]ew
[Charges], he is therefore not entitled to any pre-sentence
credit toward his [O]riginal [S]entence, pursuant to Gaito
v. Pennsylvania Board of Probation [&] Parole, 412 A.2d
6568 (Pa. 1980).[4] Because he was sentenced to a new term
of state incarceration, the . . . Code provides that Wright-
Wilson must serve the balance of the [O]riginal [S]entence
first. 61 Pa.C.S. § 6138(a)(5). However, that provision
did not take effect until the Board revoked [Wright-
Wilson’s] parole. [See] Campbell . . . . This means that
Wright-Wilson became available[] to commence service
of his [O]riginal [S]entence on January 20, 2022, because
that is the day the Board obtained enough signatures to
declare him a parole violator. Adding 162 days to January
20, 2022[,] yields a recalculated maximum date of July 1,
2022. Thus, the Board properly recalculated [Wright-
Wilson’s Original Sentence] maximum [release] date.
C.R. at 130-131.
Wright-Wilson’s Original Sentence maximum release date was
February 6, 2021. See C.R. at 2. The Board released Wright-Wilson on parole on
May 9, 2019. See C.R. at 10, 121. The police arrested Wright-Wilson on the New
Charges on August 28, 2020, see C.R. at 39, and the Board’s Warrant to Commit
and Detain was issued on the same date. See C.R. at 38. Because he did not post
bail, his detention time was credited to the New Sentence. Finally, the Board’s
Revocation Hearing Report reflects that the Board executed it on January 20, 2022.
See C.R. at 97-104. Accordingly, the Board properly determined it used the correct
dates to calculate Wright-Wilson’s Original Sentence maximum release date.
Based on the foregoing, this Court concludes that Counsel complied
with Turner’s technical no-merit letter requirements, and confirms based upon an
4
Under Gaito, if a CPV satisfies bail requirements prior to sentencing
and is incarcerated solely on the Board’s detainer, this period of
incarceration is credited to his original sentence. However, when
bail is not posted, the time incarcerated on both the new criminal
charges and the Board’s detainer must apply to the new sentence.
White v. Pa. Parole Bd., 276 A.3d 1247, 1256 (Pa. Cmwlth. 2022) (citation omitted).
7
independent record review, that Wright-Wilson’s appeal lacks merit. Accordingly,
Counsel’s Application is granted, and the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derrick Wright-Wilson, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 1066 C.D. 2022
Respondent :
ORDER
AND NOW, this 25th day of August, 2023, Kent D. Watkins, Esquire’s
Application to Withdraw Appearance is GRANTED, and the Pennsylvania Parole
Board’s September 9, 2022 order is AFFIRMED.
_________________________________
ANNE E. COVEY, Judge