E.J. Miller v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Emmanuel J. Miller, :
:
Petitioner :
:
v. : No. 370 C.D. 2022
: Submitted: November 23, 2022
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: September 22, 2023
Presently before this Court is the application of Meghann E. Mikluscak,
Esquire (Counsel) for leave to withdraw as counsel for Emmanuel J. Miller
(Parolee). Parolee has filed a petition for review of the decision of the Pennsylvania
Parole Board (Board) affirming its prior decision recommitting him as a convicted
parole violator (CPV) and recalculating his parole violation maximum date. Counsel
seeks leave to withdraw on the grounds that Parolee’s petition for review is without
merit. For the following reasons, we grant Counsel’s application for leave to
withdraw and affirm the Board’s decision.
I. Background
On January 30, 2018, Parolee was initially sentenced to a one- to three-
year term of imprisonment based on his guilty plea to a charge of driving under the
influence of alcohol and a controlled substance in the Crawford County Court of
Common Pleas. Certified Record (CR) at 1-2. With an effective date of January 30,
2018, Parolee had a minimum sentence date of January 30, 2019, and a maximum
sentence date of January 30, 2021. Id. at 2. On March 8, 2019, the Board issued a
decision granting Parolee parole, and he was released on parole on April 23, 2019,
with 648 days (1 year, 9 months, and 7 days) remaining on his original sentence. Id.
at 6-8, 111.
On July 30, 2019, the Erie Police Department charged Parolee with one
count each of possession of a controlled substance with the intent to deliver (PWID),
possession of a controlled substance, and possession with the intent to use drug
paraphernalia. CR at 46-48.1 On January 3, 2020, Parolee pleaded guilty to the
PWID charge in the Erie County Court of Common Pleas (trial court). Id. at 49-51,
54, 71. On March 3, 2020, the trial court sentenced Parolee to a 2- to 4- year term
of imprisonment with credit for 218 days. Id. at 71.
On February 4, 2020, the Board issued a Notice of Charges and Hearing
to revoke Parolee’s parole based on the new criminal conviction. CR at 38. That
same day, Parolee executed a Waiver of Revocation Hearing and
Counsel/Admission Form in which he knowingly, intelligently, and voluntarily
waived his right to a parole revocation hearing and his right to counsel at that
hearing, and admitted that he pleaded guilty to the new criminal charges. Id. at 39-
1
That same day, the Board issued a Warrant to Commit and Detain Parolee based on the
new criminal charges. CR at 20. On August 14, 2019, Parolee executed a Waiver of
Representation by Counsel and a Waiver of Detention Hearing. Id. at 24. On September 16, 2019,
the Board detained Parolee pending disposition of the new criminal charges. Id. at 37.
2
40.2 As a result, by decision dated June 1, 2020, the Board recommitted Parolee as
a CPV to serve 18 months’ backtime3 for his new PWID conviction, and the
unexpired term of 648 days (1 year, 9 months, and 7 days) remaining on his original
sentence. Id. at 80-81. The Board denied Parolee credit for the time that he spent at
liberty on parole4 and recalculated his parole violation maximum date to be
November 17, 2021. Id. at 80-81. However, by decision dated January 25, 2022,
the Board recalculated Parolee’s maximum date to be December 11, 2021. Id. at
111-12.5
On February 10, 2022, Parolee submitted a timely pro se
Administrative Remedies Form to the Board. CR at 103-14. In his appeal, Parolee
claimed that the Board illegally altered the original maximum date of his original
one- to three-year sentence, that was imposed by the trial court. Id.
2
The forms signed by Parolee on that date advised him of his right to counsel at a hearing
before the Board and his right to appointed counsel if he cannot afford counsel of his choice. CR
at 40.
3
Backtime is “[t]he unserved part of a prison sentence which a convict would have been
compelled to serve if the convict had not been paroled.” 37 Pa. Code §61.1.
4
Specifically, in its decision, the Board noted:
-- [PAROLEE] WAS ONLY ON PAROLE 3 MONTHS WHEN
ARRESTED FOR PWID-COCAINE.
CR at 80; see also id. at 43-45 (outlining Parolee’s Supervision History and Sanction History).
5
Although the petition for review was filed after Parolee had completed the service of his
entire original sentence, the instant matter is not moot because our disposition may affect the
service of the two- to four-year sentence imposed on his new PWID conviction. See, e.g.,
Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42 n.2 (Pa. Cmwlth.
2010) (“[B]ecause any error in the recalculation of the maximum date on [the parolee’s] original
sentence could impact the timing of [his] new state sentence, and because the Commonwealth
continues to exercise custody and control over [him] such that this Court could award him relief,
the present matter is not moot.”).
3
On March 29, 2022, the Board mailed Parolee a decision affirming its
January 25, 2022 recalculation decision in which it stated, in pertinent part:
The Board paroled you from a state correctional institution
(“SCI”) on April 23, 2019[,] with a max date of January
30, 2021. This left you with a total of 648 days remaining
on your sentence at the time of parole. The Board’s
decision to recommit you as a [CPV] authorized the
recalculation of your sentence to reflect that you received
no credit for the time you were at liberty on parole.
[Section 6138(a)(2) of the Prisons and Parole Code
(Code),] 61 Pa. C.S. §6138(a)(2). In this case, the Board
did not award credit for time at liberty on parole. This
means there were 648 days still remaining on your
sentence, based on your recommitment.
On July 30, 2019 you were arrested for new criminal
charges . . . in the [trial court]. You did not post bail. You
were sentenced on March 3, 2020[,] to [two] to [four]
years to be served in an SCI. The Board lodged its detainer
against you on July 30, 2019. There were 648 still
remaining on your sentence.
[Section 6138(a)(5) of the Code] provides that [CPVs]
who are paroled from a[n SCI] and then receive an SCI
sentence must serve the original sentence first[.] 61
Pa. C.S. §6138(a)(5). However, that provision does not
take effect until the parolee is recommitted as a [CPV]. In
this case[,] March 3, 2020 is your effective date because
you were sentenced on the new charges and that is when
you were available to the Board to serve your back time.
Adding 648 days to that date yields a new maximum date
of December 11, 2021.
The Department of Corrections applied credit towards
your new sentence from July 30, 2019[,] to March 3, 2020.
CR at 115-16. On April 18, 2022, Parolee filed the instant pro se petition for review.
4
On May 3, 2022, Counsel was appointed to represent Parolee in this
appeal. Shortly thereafter, Counsel filed an application for leave to withdraw as
counsel along with a no-merit letter based on her belief that Parolee’s appeal is
without merit. This matter is now before us for disposition.
II. Application to Withdraw
Counsel seeking to withdraw as appointed counsel must conduct a
zealous review of the case and submit a no-merit letter to this Court detailing the
nature and extent of counsel’s diligent review of the case, listing the issues the
petitioner seeks to have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw.6 Commonwealth v. Turner, 544 A.2d 927,
928 (Pa. 1988); Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d
19, 24-26 (Pa. Cmwlth. 2009); Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth.
2009). The no-merit letter must include “‘substantial reasons for concluding that a
petitioner’s arguments are meritless.’” Zerby, 964 A.2d at 962 (quoting Jefferson v.
Pennsylvania Board of Probation and Parole, 705 A.2d 513, 514 (Pa. Cmwlth.
1998)).
In addition, court-appointed counsel who seeks to withdraw
representation must: (1) notify the petitioner of the request to withdraw; (2) furnish
6
Where there is a constitutional right to counsel, court-appointed counsel seeking to
withdraw must submit a brief in accord with Anders v. California, 386 U.S. 738 (1967), referred
to as an Anders brief, that (i) provides a summary of the procedural history and facts, with citations
to the record; (ii) refers to anything in the record that counsel believes arguably supports the appeal;
(iii) sets forth counsel’s conclusion that the appeal is frivolous; and (iv) states counsel’s reasons
for concluding that the appeal is frivolous. Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009); Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth.
2009). Where, as here, the petitioner has only a statutory, rather than a constitutional, right to
counsel, appointed counsel may submit a no-merit letter instead of an Anders brief. Hughes,
977 A.2d at 25-26.
5
the petitioner with a copy of a brief or no-merit letter; and (3) advise the petitioner
of his right to retain new counsel or raise any new points that he might deem worthy
of consideration. Turner, 544 A.2d at 928; Hughes, 977 A.2d at 22. If counsel
satisfies these technical requirements, this Court must then conduct an independent
review of the merits of the case. Turner, 544 A.2d at 928; Hughes, 977 A.2d at 25.
If this Court determines the petitioner’s claims are without merit, counsel will be
permitted to withdraw, and the petitioner will be denied relief. Turner, 544 A.2d at
928; Hughes, 977 A.2d at 27.
Upon review, Counsel’s no-merit letter satisfies the technical
requirements of Turner. Counsel states that she has conducted a review of the
record, applicable statutes, and case law. She sets forth the issue that Parolee wishes
to have reviewed, specifically that the Board lacks the constitutional or statutory
authority to alter Parolee’s judicially-imposed maximum sentence date. Counsel
provides a thorough analysis as to why this issue lacks merit.
Counsel has reviewed the Board’s recalculation of Parolee’s maximum
sentence date, verifies that it is not an alteration of a judicially imposed sentence,
and concludes that it was correctly calculated. Counsel further explains that a
parolee who is convicted of a crime while on parole may be recommitted to serve
the unserved portion of his original maximum sentence and may be denied credit for
the time spent at liberty on parole.
Based on her review, Counsel concludes that Parolee’s appeal to this
Court lacks merit, and she requests permission for leave to withdraw. Counsel
provided Parolee with a copy of the no-merit letter and her request to withdraw. She
advised Parolee of his right to retain new counsel or proceed pro se. As we are
satisfied that Counsel has discharged her responsibility in complying with the
6
technical requirements to withdraw from representation, we shall conduct an
independent review to determine whether Parolee’s claim in the petition for review
lacks merit.7
III. Independent Review
Parolee asserts that the Board lacks the constitutional or statutory
authority to alter his judicially imposed sentence by recalculating his original
maximum sentence date following the revocation of his parole as a CPV. It is clear
that this argument rests entirely on Parolee’s mistaken belief that the maximum date
of his sentence, rather than the maximum length of his sentence, is controlling for
purposes of recalculating his parole violation maximum sentence date. See, e.g.,
Commonwealth ex rel. Banks v. Cain, 28 A.2d 897, 901 (Pa. 1942) (holding that the
Board cannot extend the “duration of the sentence” because “[t]he fixing of the term
of the sentence is exclusively a judicial function”).
However, Section 6138(a)(1) of the Code provides that any parolee
who, during the period of parole, commits a crime punishable by imprisonment and
is convicted or found guilty of that crime may be recommitted as a CPV. 61 Pa. C.S.
§6138(a)(1). In addition, Section 6138(a)(2) of the Code states:
If the offender’s parole is revoked, the offender shall be
recommitted to serve the remainder of the term which the
offender would have been compelled to serve had the
parole not been granted and, except as provided under
paragraph (2.1), shall be given no credit for the time at
liberty on parole.
7
Our scope of review is limited to determining whether constitutional rights were violated,
whether the Board’s adjudication was in accordance with law, and whether necessary findings
were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2
Pa. C.S. §704; Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa.
Cmwlth. 2013).
7
61 Pa. C.S. §6138(a)(2) (emphasis added).
Thus, because Parolee was recommitted as a CPV, he must serve the
remainder of the term that he would have been compelled to serve had parole not
been granted, with no time for liberty on parole, unless the Board, in the exercise of
its sole discretion, chooses to award him credit. Hughes v. Pennsylvania Board of
Probation and Parole, 179 A.3d 117, 120 (Pa. Cmwlth. 2018); see also Young v.
Pennsylvania Board of Probation and Parole, 409 A.2d 843, 848 (Pa. 1979) (“[The]
Board’s power to deny credit for ‘street time’ . . . is not an encroachment upon the
judicial sentencing power.”). Where the Board denies credit for the time served at
liberty on parole, that time is applied to the original maximum sentence date to create
a new maximum sentence date. Armbruster v. Pennsylvania Board of Probation
and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007).
As indicated, when Parolee was paroled on April 23, 2019, 648 days (1
year, 9 months, and 7 days) remained on his original sentence. He returned to the
Board’s custody on March 3, 2020, and he was recommitted as a CPV on June 1,
2020. As a result, the Board’s recommitment decision properly added the remainder
of his original sentence to the date of his return to the Board’s custody, as did the
Board’s January 25, 2022 decision recalculating his new original sentence maximum
date to be December 11, 2021. Parolee’s claims to the contrary are without merit.
Accordingly, we grant Counsel’s application for leave to withdraw as
counsel, and we affirm the Board’s March 29, 2022 decision affirming its January
25, 2022 recalculation decision.
MICHAEL H. WOJCIK, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Emmanuel J. Miller, :
:
Petitioner :
:
v. : No. 370 C.D. 2022
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 22nd day of September, 2023, Meghann E. Mikluscak,
Esquire’s application for leave to withdraw as counsel is GRANTED, and the
decision of the Pennsylvania Parole Board dated March 29, 2022, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge