S. Strawn v. PBPP ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stephen Strawn, :
:
Petitioner :
:
v. : No. 30 C.D. 2020
: Submitted: August 7, 2020
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 16, 2021
Stephen Strawn (Strawn) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board)1 that denied his request for
administrative review challenging the calculation of his maximum sentence date.
Also, before us is a petition to withdraw as counsel filed by Strawn’s court-appointed
attorney, David Crowley, Esquire (Attorney Crowley), on the ground that Strawn’s
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§ 6101, 6111(a).
appeal is without merit. For the reasons that follow, we grant Attorney Crowley’s
petition to withdraw as counsel, and we affirm the Board’s order.
I. Background
In June 2009, Strawn was originally sentenced to a term of 5 to 10 years
in prison after being found guilty of a drug offense. Certified Record (C.R.) at 1.
His maximum sentence date was September 2, 2018. C.R. at 1. Strawn was paroled
from this sentence on September 3, 2013. C.R. at 16, 64.
After his initial release, Strawn was arrested for new offenses and
parole violations, reparoled, and placed in drug and alcohol treatment programs
numerous times. C.R. at 16-18. According to his Supervision History, on October
7, 2014, Strawn was arrested in Dauphin County for driving-related offenses and
was recommitted for parole violations. C.R. at 16, 18, 39. On March 25, 2015,
Strawn was released to a community corrections center. C.R. at 16. On June 8,
2015, Strawn was arrested for possession of marijuana, use/possession of drug
paraphernalia, driving under the influence (DUI), and driving-related offenses. C.R.
at 16. On June 15, 2015, Strawn turned himself into parole authorities and was
subsequently recommitted as a technical parole violator (TPV) and a convicted
parole violator (CPV). C.R. at 1, 16, 39, 64.
On May 10, 2017, Strawn was again released on parole with a
maximum sentence date of April 11, 2020. C.R. at 6-7, 17, 64. At the time of his
release, 1,067 days, the period between May 10, 2017, and April 11, 2020, remained
on his sentence. Strawn acknowledged the following condition of parole: “If you
are convicted of a crime committed while on parole/reparole, the Board has the
authority, after an appropriate hearing, to recommit you to serve the balance of the
2
sentence or sentences which you were serving when paroled/reparoled, with no
credit for time at liberty on parole.” C.R. at 8, 10.
On August 18, 2017, Strawn was arrested again for DUI and driving-
related offenses in Lebanon County. C.R. at 17, 54. On October 26, 2017, Strawn
was detained on the DUI charges in lieu of $2,500 bail. C.R. at 54, 71. On May 11,
2018, the sentencing court reduced Strawn’s bail to release on his own recognizance
(ROR). C.R. at 54, 71.
On August 31, 2017, the Board issued a warrant to commit and detain
Strawn for technical parole violations based on Strawn’s admission to his parole
agent that he smoked marijuana and consumed alcohol in violation of his parole.
C.R. at 12, 21. Following a panel violation hearing, by decision recorded February
6, 2018, the Board recommitted Strawn as a TPV to serve nine months’ backtime.
C.R. at 32, 40-43. At the time of the Board’s August 31, 2017 detainer, Strawn owed
954 days, the period between August 31, 2017, and April 11, 2020, on his original
sentence. Although the Board was aware of the pending DUI charges at the panel
violation hearing, C.R. at 32, the Board did not detain Strawn pending the disposition
of those charges until April 10, 2018. C.R. at 47.
On November 27, 2018, following a jury trial, Strawn was found guilty
of a single DUI offense.2 C.R. at 54, 72. Strawn was sentenced that same day to a
period of incarceration in Lebanon County Prison of 6 to 24 months. C.R. at 55.
Because Strawn had already served the minimum sentence,3 the sentencing court
2
The other DUI charge was withdrawn. See C.R. at 72.
3
Between October 26, 2017, and May 11, 2018, roughly 6.5 months, Strawn was
incarcerated exclusively on the DUI charges emanating from the August 18, 2017 incident. C.R.
at 54. The sentencing court recommended that the Board credit the period of incarceration between
May 11, 2018, and the date of sentencing on November 27, 2018, towards Strawn’s original
sentence. C.R. at 54.
3
ordered Strawn’s immediate return to the Board’s custody pursuant to the Board’s
April 10, 2018 detainer. C.R. at 47, 56, 103.
Upon his return, the Board charged Strawn as a CPV based on the new
DUI conviction and held a revocation hearing. C.R. at 57. A hearing examiner
issued a hearing report determining that Strawn should be recommitted as a CPV
based on the DUI conviction, noting poor adjustment under supervision, early failure
on parole/reparole, and prior parole/probation failure. C.R. at 57-63. The hearing
examiner recommended not to award any credit for time that Strawn spent at liberty
while on parole, citing Strawn’s “unresolved drug and alcohol issues.” C.R. at 59.
The Board revoked Strawn’s parole as indicated by the second signature on the
hearing report. C.R. at 63.
By revocation decision recorded on February 6, 2019, the Board
recommitted Strawn as a CPV to serve six months’ backtime. C.R. at 105. The
Board referred to its prior action recorded on February 6, 2018, to recommit Strawn
as a TPV to serve nine months’ backtime. C.R. at 105. The Board directed that
Strawn’s CPV backtime run concurrently with the TPV backtime for a total of nine
months’ backtime. C.R. at 105. The Board calculated Strawn’s new maximum
sentence date as February 15, 2021.4 C.R. at 105. The Board did not award credit
for time spent at liberty on parole, citing Strawn’s “unresolved drug and alcohol
issues.” C.R. at 106.
Strawn, representing himself, timely requested administrative review
of the Board’s revocation decision challenging the Board’s recalculation of his
4
The Board has filed an Application for Summary Relief asserting that, because this date
has since passed, Strawn’s appeal is moot. However, because we are unable to discern from the
certified record whether this maximum sentence date would affect the service of another state
sentence, we decline to dismiss the appeal as moot.
4
maximum sentence date and denial for the time that he spent at liberty on parole,
also known as “street time.” More particularly, Strawn requested credit against his
original sentence for all street time from May 10, 2017, to the present on the basis
that the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §§101-6309, gives the
Board the discretion to award this time where the CPV’s new conviction is not a sex
offense or a crime of violence. C.R. at 107. Strawn also asserted that the Board’s
extension of his maximum sentence date illegally forfeited street time credit
previously awarded from September 2013 to November 2014. C.R. at 107, 109. By
decision mailed December 11, 2019, the Board denied Strawn’s request for
administrative review upon determining that the Board acted within its discretion to
deny street time credit and properly calculated his maximum sentence date. C.R. at
111-12.
From this decision, Strawn timely filed a pro se petition for review.
Thereafter, Attorney Crowley filed an amended petition for review on Strawn’s
behalf. In the amended petition, Strawn contends that the Board’s calculation of his
maximum sentence date illegally extended his original sentence by failing to apply
all credit to which he was entitled. Shortly thereafter, Attorney Crowley filed a
petition to withdraw as counsel along with a no-merit letter based on his belief that
Strawn’s appeal is without merit. This matter is now before us for disposition.
II. Petition 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 wants to have reviewed, explaining why and how those issues lack merit,
5
and requesting permission to withdraw.5 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) (en banc); 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
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, Attorney Crowley’s no-merit letter satisfies the technical
requirements of Turner. Attorney Crowley states that he conducted a conscientious
5
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) (en banc). 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.
6
and thorough review of his notes from meetings with Strawn and correspondence
with him, the certified record, applicable statutes, and case law. He set forth a
procedural history of the case and the basis for the appeal. Attorney Crowley
summarized the following issues: a) whether the Board may forfeit the street time
of a nonviolent CPV; b) whether the Board illegally extended Strawn’s maximum
sentence date by illegally forfeiting street time between September 2013, and
November 2014, that was previously awarded; and c) whether the Board properly
recalculated Strawn’s maximum sentence date. Attorney Crowley provided a
thorough analysis as to why each issue lacks merit, complete with citations to
relevant case law, statutes, regulations, and the certified record.6
Based on his review, Attorney Crowley concludes that Strawn’s appeal
to this Court is without merit, and he requests permission to withdraw as counsel.
Attorney Crowley provided Strawn with a copy of the no-merit letter and his request
6
In his review, Attorney Crowley noted one error in the Board’s determination, but it did
not implicate the validity of the new maximum sentence date. Specifically, the Board, citing
Section 6138(a)(5) of the Parole Code, 61 Pa. C.S. §6138(a)(5), stated that where a CPV is released
from a state correctional institution on his original sentence and receives a new sentence to be
served in a state correctional institution, he must serve the original sentence first. C.R. at 113. As
the Board explained: “Because the Board previously committed you as a [TPV] by decision
recorded February 6, 2018, you therefore became available to commence service of your original
sentence on November 27, 2018, the day you were sentenced in Lebanon County.” Id. However,
Strawn’s new 6- to 24-month sentence for DUI was not a state sentence, but a county sentence to
be served in county jail. Under Section 6138(a)(5)(iii) of the Parole Code, the service of a new
county sentence “precede[s] commencement of the balance of the [state] term originally imposed.”
61 Pa. C.S. §6138(a)(5)(iii). Notwithstanding, the order to recommit correctly states that Strawn’s
place of confinement was the county and that Strawn was paroled from the county sentence on
November 27, 2018. C.R. at 104. Therefore, Strawn properly began serving backtime on his
original sentence on the custody for return date of November 27, 2018. Because calculating the
new maximum sentence date is simply a matter of adding the unserved sentence balance to the
custody for return date, the Board’s misstatement regarding the sequence of service had no bearing
on the calculation of his maximum sentence date and would not cause Strawn to serve more time
than originally imposed by the sentencing court. Turner Letter, 5/6/20, at 6-7.
7
to withdraw. He advised Strawn of his right to retain new counsel or proceed by
representing himself.7 As we are satisfied that Attorney Crowley has discharged his
responsibility in complying with the technical requirements to withdraw from
representation, we shall conduct an independent review to determine whether
Strawn’s petition for review lacks merit.8
III. Independent Review
A. Forfeiture of Street Time
First, Strawn argues that the Board erred or abused its discretion by
denying him credit for street time following his parole on May 10, 2017. Strawn
maintains that he is entitled to a credit under the Parole Code because he was not
convicted of a crime of violence, did not commit a crime requiring sex offender
registration, and was not subject to a federal removal order. See 61
Pa. C.S. §6138(a)(2.1)(i) and (ii).
Section 6138(a) of the Parole Code governs parole violations for
convicted violators providing, in pertinent part:
(1) A parolee under the jurisdiction of the [B]oard released
from a correctional facility who, during the period of
parole or while delinquent on parole, commits a crime
punishable by imprisonment, for which the parolee is
convicted or found guilty by a judge or jury or to which
the parolee pleads guilty or nolo contendere at any time
thereafter in a court of record, may at the discretion of the
[B]oard be recommitted as a parole violator.
(2) If the parolee’s recommitment is so ordered, the
parolee shall be reentered to serve the remainder of the
7
Strawn did not retain new counsel or file a brief in support of his petition for review.
8
Our review is limited to determining whether constitutional rights were violated, whether
the 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).
8
term which the parolee 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.
(2.1) The [B]oard may, in its discretion, award credit to a
parolee recommitted under paragraph (2) for the time
spent at liberty on parole, unless any of the following
apply:
(i) The crime committed during the period of
parole or while delinquent on parole is a
crime of violence as defined in 42 Pa. C.S. §
9714(g) (relating to sentences for second and
subsequent offenses) or a crime requiring
registration under 42 Pa. C.S. Ch. 97 Subch.
H (relating to registration of sexual
offenders).
(ii) The parolee was recommitted under
section 6143 (relating to early parole of
inmates subject to Federal removal order).
61 Pa. C.S. §6138(a) (emphasis added).
Section 6138(a)(2) of the Parole Code authorizes the Board to recommit
CPVs to serve the remainder of the term they would have been required to serve had
they not been paroled, except as provided under subsection (a)(2.1).
61 Pa. C.S. §6138(a)(2). Subsection (a)(2.1) grants the Board discretion to award
credit to a qualifying CPV recommitted to serve the remainder of his sentence,
except when the CPV is recommitted for the reasons stated in subsections (a)(2.1)(i)
and (ii). 61 Pa. C.S. §6138(a)(2.1); Pittman v. Pennsylvania Board of Probation and
Parole, 159 A.3d 466, 473 (Pa. 2017).
In the exercise of this discretion, the Board must conduct an “individual
assessment of the facts and circumstances surrounding [a parolee’s] parole
revocation.” Pittman, 159 A.3d at 474. Further, the Board must “articulate the basis
9
for its decision to grant or deny a CPV credit for time served at liberty on parole.”
Id. Although the Board has broad discretion to grant or deny such credit, its decision
is subject to appellate review and must be reversed or vacated as an abuse of
discretion where the Board has based its denial of credit on an erroneous premise.
Id. at 474-75 and n.12. Where the Board denies credit for time served at liberty on
parole, this time is applied to the original maximum expiration date to create a new
maximum sentence date. Armbruster v. Pennsylvania Board of Probation and
Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007).
Here, Strawn was not convicted of a crime of violence, did not commit
a crime requiring sex offender registration, and was not subject to a federal removal
order. See 61 Pa. C.S. §6138(a)(2.1)(i) and (ii). Although Strawn qualified for
credit under the Parole Code, it was within the Board’s discretion to grant or deny
credit for street time. 61 Pa. C.S. §6138(a)(2.1); Pittman, 159 A.3d at 473. The
Board chose to deny credit and contemporaneously articulated Strawn’s “unresolved
drug and alcohol issues” as the reason for denial. C.R. at 59, 106. Such constitutes
a valid basis to deny credit. See Smoak v. Talaber, 193 A.3d 1160, 1164
(Pa. Cmwlth. 2018) (upholding “unresolved drug and alcohol issues” as a valid basis
to deny credit under the Pittman standard). Upon review, we discern no error or
abuse of discretion in the Board’s denial of this street time credit.
10
B. Forfeiture of Street Time Previously Awarded
Next, Strawn claims that the Board extended his maximum sentence
date by illegally forfeiting street time between September 2013 and November 20149
that was previously awarded.
The Parole Code does not authorize the Board to withdraw or revoke
street time credit previously granted pursuant to Section 6138(a)(2.1) of the Parole
Code in a subsequent revocation proceeding. Young v. Pennsylvania Board of
Probation and Parole, 225 A.3d 810, 814 (Pa. 2020). Indeed, “[o]nce the Board
grants sentence credit for street time, it is gone. The only extant ‘time spent at liberty
on parole’ will be that time that falls between the parolee’s most recent reparole and
his recommitment.” Penjuke v. Pennsylvania Board of Probation and Parole, 203
A.3d 401, 409 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254 (Pa. 2020) (internal
quotation and citation omitted).
Upon review, there is no factual support for Strawn’s claim that the
revocation decision recorded February 6, 2019, forfeited any prior street time
granted to him. The relevant period in question is between Strawn’s most recent
parole date of May 10, 2017, and his return to custody date of November 27, 2018.
The only extant street time during this period was the three months of liberty
between his May 10, 2017 release on parole and his August 31, 2017 detention. C.R.
at 105-06. The Board forfeited this street time citing Strawn’s “unresolved drug and
alcohol issues.” C.R. at 106. To the extent that the Board awarded Strawn any prior
9
We presume that Strawn is referring to time spent at liberty on parole between his initial
parole release on September 3, 2013, and his subsequent detention for parole violations following
his arrest in Dauphin County for driving-related offenses on October 7, 2014. See C.R. at 16, 18,
39, 64. However, the actual date of the parole detention is not clear from the record.
11
street time credit in its 2016 recommitment decision,10 such time was not forfeited
in the instant recommitment in contravention of Young.
C. Recalculation of Maximum Sentence
Finally, Strawn contends that the Board erred in its recalculation of his
maximum sentence date.
As discussed above, Section 6138(a)(2) of the Parole Code provides
that a parolee who is convicted of committing a crime while on parole may be
recommitted to serve the remainder of his original maximum sentence without credit
for time at liberty on parole. “When computing the time yet to be served on the
original sentence, the convicted parole violator’s street time is added to the original
maximum expiration date to create a new maximum expiry.” Armbruster, 919 A.2d
at 351. The only limitation on the recalculation of a convicted parole violator’s new
maximum sentence date where there has been a forfeiture of street time upon a new
conviction is that the new maximum sentence date may not exceed the total unserved
balance of the original sentence. See Savage v. Pennsylvania Board of Probation
and Parole, 761 A.2d 643, 645 (Pa. Cmwlth. 2000) (“It is well-settled that the Board
is not permitted to impose backtime which exceeds the entire remaining balance of
parolee’s unexpired term.”).
At the time of his last parole release on May 10, 2017, Strawn’s
maximum sentence date was April 11, 2020, leaving 1,067 days remaining on this
sentence. The Board credited Strawn with 256 days that he was incarcerated solely
10
The 2016 recommitment decision is not part of the certified record. Therefore, it is
unclear what, if any, street time was previously awarded. Notwithstanding, the 2016
recommitment decision, as reflected in other documents, set Strawn’s maximum sentence date to
April 11, 2020. See C.R. at 2-7, 12, 15, 40. Insofar as Strawn has any objections regarding the
April 11, 2020 date, the time to challenge the 2016 recommitment decision has long since passed.
12
on the Board’s detainers,11 thereby reducing the amount of backtime owed to 811
days. By adding 811 days to his custody for return date of November 27, 2018, the
Board arrived at a new maximum sentence date of February 15, 2021. This
maximum sentence date does not exceed the entire remaining balance of Strawn’s
unexpired term. We, therefore, discern no error in the Board’s calculation of
Strawn’s maximum sentence date.
IV. Conclusion
Upon review, we agree with Attorney Crowley that Strawn’s claims are
without merit. Accordingly, we grant Attorney Crowley’s petition to withdraw as
counsel, and we affirm the order of the Board denying Strawn’s request for
administrative review. In addition, we deny the Board’s Application for Summary
Relief.
MICHAEL H. WOJCIK, Judge
11
More particularly, the Board credited Strawn with 56 days between August 31, 2017
(date of Board detainer), and October 26, 2017 (date of DUI detention), and 200 days between
May 11, 2018 (date that bail for the DUI charges was reduced to ROR), and November 27, 2018
(date that Strawn completed his DUI sentence and was returned to Board custody). C.R. at 103.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stephen Strawn, :
:
Petitioner :
:
v. : No. 30 C.D. 2020
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 16th day of July, 2021, the order of the Pennsylvania
Board of Probation and Parole (Board), mailed December 11, 2019, is AFFIRMED,
and the petition to withdraw as counsel filed by David Crowley, Esquire, is
GRANTED. The Board’s Application for Summary Relief is DENIED.
__________________________________
MICHAEL H. WOJCIK, Judge