D.N. Etheridge v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Damel Nareef Etheridge, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation and :
Parole, : No. 885 C.D. 2015
Respondent : Submitted: December 24, 2015
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: January 8, 2016
Pending before this Court is the motion to withdraw as counsel filed by
James L. Best, Esquire (Counsel) and the petition for review Damel Nareef Etheridge
(Petitioner) filed pro se from an order of the Pennsylvania Board of Probation and
Parole (Board) recommitting Petitioner as a convicted parole violator (CPV) and
recalculating his parole violation maximum sentence date. Counsel seeks permission
to withdraw from representing Petitioner on the basis that his appeal is without merit.
1
This case was assigned to the opinion writer before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
For the reasons that follow, we affirm the Board’s order and grant Counsel leave to
withdraw.
I.
In 2000, Petitioner was sentenced to serve 3.5 to 7 years of
imprisonment as a result of his conviction for aggravated indecent assault, with a
minimum release date of January 10, 2004, and a maximum date of July 10, 2007.
Following multiple paroles and revocations, he was re-arrested for the
manufacture/sale/delivery of drugs with intent to distribute, and on May 4, 2009, was
sentenced to a term of between 2.75 years and 5.5 years, yielding a minimum release
date of December 20, 2011, and a maximum date of September 20, 2014. Petitioner
was again paroled on April 1, 2012, and was subsequently re-arrested for driving
under the influence (DUI) on February 9, 2014, but was permitted to remain on
parole subject to his agreement to undergo out-patient drug and alcohol counseling.
On June 19, 2014, Petitioner was arrested for possessing with the intent
to distribute 39 bags of crack cocaine (a felony) and for possessing 10 bags of
synthetic marijuana (a misdemeanor), and the following day he was detained as a
technical parole violator (TPV). A hearing on his status as a TPV was held on June
24, 2014, at which time he waived his rights to a preliminary hearing, a violation
hearing and counsel and admitted his technical parole violation. By Board order
dated August 5, 2014, Petitioner was recommitted as a TPV to serve his unexpired 3-
month term of his maximum sentence and was ordered detained pending disposition
of the criminal charges.
2
Subsequently, on October 2 and 3, 2014, Petitioner was found guilty on
one felony count of possession with intent to deliver a controlled substance and DUI
in the Court of Common Pleas of Berks County, Criminal Division. With regard to
the DUI charge, he was recommitted for a period ranging from 72 consecutive hours
to 6 months, with credit for 3 days of time served. He was also sentenced to 12
years for possession of a controlled substance with intent to deliver and given credit
for 106 days of time served with respect to his drug charge. Following the new
convictions, the Board issued a warrant dated November 10, 2014, to commit and
detain Petitioner for violation of parole, and Petitioner again waived his right to a
revocation hearing and to counsel, admitting that he was a CPV. Consequently, the
Board recommitted him as a CPV to serve 218 months and recalculated his
maximum release date to April 30, 2017, declining to credit the time he served at
liberty on parole. Specifically, the Board calculated that Petitioner owed 902 days of
back time and returned to custody on November 10, 2014, yielding a maximum date
of April 30, 2017.
Petitioner filed pro se a timely request for administrative relief,
asserting, inter alia, that the Board improperly altered his judicially-imposed sentence
because it extended his maximum violation date beyond the initial date of September
20, 2014, after that date passed in violation of his due process rights. He further
contended that the Board erred in ignoring Section 6138(a)(2.1) of the Prison and
Parole Code, 61 Pa. C.S. §6138(a)(2.1), by summarily denying him credit for the time
he spent at liberty on parole.
3
By order dated May 5, 2015, the Board denied Petitioner’s request,
reasoning that the maximum term of imprisonment for possessing crack cocaine with
the intent to distribute is 10 years as per Section 13(f)(1.1) of the Controlled
Substance, Drug, Device and Cosmetic Act (Controlled Substance Act), Act of April
14, 1972, P.L. 233, as amended, 35 P.S. §780-113(f)(1.1),2 with a presumptive
recommitment range of 18 to 24 months, and that the applicable range for DUI is 3 to
6 months. See 37 Pa. Code §75.2. Because these terms total a maximum of 30
months, the Board determined that its order recommitting Petitioner to serve 18
months is not subject to challenge. Further, the Board explained that it was
authorized to recommit Petitioner as a CPV and to recalculate his sentence without
providing him credit for the time spent at liberty on parole as per Section 6138(a)(2)
of the Prison and Parole Code, 61 Pa. C.S. §6138(a)(2). To the extent due process
was implicated, the Board held that “the ability to challenge the recalculation
decision after it is imposed satisfies your due process rights. Therefore, the Board’s
recalculation of your maximum sentence date did not violate any constitutional
provisions.” (Certified Record at 128a.) Accordingly, the Board affirmed its order,
and this appeal followed.
II.
On appeal, Petitioner asserted that the Board improperly altered his
judicially-imposed maximum term after its expiration on September 20, 2014, in
2
Individuals convicted of possessing “coca leaves and any salt, compound, derivative or
preparation of coca leaves[, or] any salt, compound, derivative or preparation of the preceding
which is chemically equivalent or identical with any of these substances” with the intent to
distribute are subject to a maximum imprisonment term of 10 years. 35 P.S. §780-113(f)(1.1).
4
violation of his due process rights. Petitioner also contended that his conviction on
the drug charge was not pursuant to Section 13(f)(1.1) of the Controlled Substances
Act, 35 P.S. §780-113(f)(1.1), upon which the Board relied for establishing the
presumptive sentencing range. Finally, Petitioner challenged the Board’s decision
not to credit him for the time spent at liberty on parole.
After Petitioner filed his petition for review, we issued a per curiam
order appointing the Public Defender of Northumberland County to represent him in
this action. Subsequently, Counsel filed a motion to withdraw, claiming that he “can
find no basis to challenge the decision,” “believes this appeal is frivolous,” and
recognizes “no basis in law or fact for the appeal.” (Motion for Leave to Withdraw
as Counsel ¶¶2, 3.) Specifically, in Counsel’s no-merit letter3 dated September 16,
2015, he advised the Court that because Petitioner waived his right to a revocation
hearing on November 10, 2014, admitted that he was a CPV, and did not present any
mitigating evidence upon which the Board could have exercised its discretion to
credit Petitioner for the time he spent at liberty on parole, Petitioner was not entitled
to relief.
Counsel continued:
The plain language of Section 6138[a](2) [of the
Prison and Parole Code] required that the Board forfeit
[Petitioner]’s street time unless it choose [sic] to exercise its
discretion not to do so. While the exercise of this discretion
cannot be arbitrary or capricious, the Board can hardly be
3
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
5
accused of abusing this discretion when [Petitioner] gave it
no information upon which to exercise this right of
leniency.
(Turner Letter from Counsel (September 16, 2015) at 4.)
Counsel also included a copy of the September 16, 2015 letter which he
provided Petitioner in which Counsel advised Petitioner that after reviewing the full
record, Counsel found that the case lacked merit and filed a motion to withdraw.
Specifically, the letter states:
[T]he law is clear that the Board shall forfeit the street time
of a convicted parole violator unless it exercises its
discretion not to. In your case, you waived your revocation
hearing, waived your right to counsel, and did not provide
the Board with any mitigating evidence. The Board hearing
was the critical time in the case to do this and you waived
that opportunity.
You are advised that you have the right to submit
your own Brief to the Commonwealth Court if you disagree
and wish to argue your points and you would also have the
right to hire private counsel to represent you further. [sic]
(Motion to Withdraw as Counsel, Ex. A, at 12.) A copy of Counsel’s motion to
withdraw was also served upon Petitioner.
6
III.
A.
Upon review,4 we first inquire whether Counsel complied with the
technical requirements governing the withdrawal of counsel appointed to represent
petitioners seeking review of Board determinations. These requirements differ
depending on whether a petitioner’s right to counsel is constitutional in nature.
Because appeals alleging that the Board did not properly calculate a petitioner’s
maximum date do not implicate a constitutional right to counsel, see Hughes v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19, 2526 (Pa. Cmwlth.
2009) (en banc), counsel need only comply with the requirements set forth in
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
Pursuant to this standard:
[C]ounsel seeking to withdraw from representation of a
petitioner seeking review of a determination of the Board
must provide a “no-merit” letter which details the nature
and extent of the attorney’s review and lists each issue the
petitioner wished to have raised, with counsel’s explanation
of why those issues are meritless….
Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (internal quotation marks
and citations omitted) (original alternations omitted). Additionally, counsel must
4
Our scope of review is limited to determining whether the 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; Moroz v. Pennsylvania Board of Probation & Parole, 660 A.2d 131, 132 (Pa. Cmwlth.
1995).
7
provide to the petitioner a copy of the “no-merit” letter, a copy of the petition to
withdraw, and a statement advising the petitioner of his right to proceed pro se or via
new counsel. Id. at 960. Where these technical prerequisites are satisfied, the Court
will perform its own review of the merits of the case, and if we find that the claims
lack merit, we will allow counsel to withdraw. Id.
Here, Counsel has complied with the technical requirements of the no-
merit letter. First, Counsel’s motion to withdraw asserts that he has notified
Petitioner of his request to withdraw, provided him a copy of the no-merit letter he
filed with the Court as well as a separate no-merit letter addressed specifically to
Petitioner, and advised Petitioner of his right to proceed pro se or through new
counsel. Additionally, as per the motion to withdraw’s certificate of service, a copy
of the same was served upon Petitioner.
Moreover, Counsel’s letter to Petitioner, which is attached to his motion,
explains that his conclusion is based upon a full review of the certified record. As
detailed above, Counsel’s Turner letter discusses the Board’s authority to recommit a
parolee as a CPV, to recalculate a maximum violation date, and to decline to provide
credit for time served pursuant to Section 6138(a) of the Prison and Parole Code, 61
Pa. C.S. §6138(a). Because, facially, Counsel has set forth substantial reasons for
concluding that Petitioner’s arguments are meritless, Counsel complied with the
standard governing no-merit letters, and we will conduct an independent review to
determine whether the appeal is indeed meritless.
8
Barb.
1.
Insofar as Petitioner contends that he is entitled to credit for the time he
spent at liberty on parole from April 1, 2012, through his recommitment in 2014, we
find no merit in his argument.
Pursuant to the Prison and Parole Code:
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the board
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
board 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 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 board 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).
9
(ii) The parolee was recommitted under section
6143 (relating to early parole of inmates subject to Federal
removal order).
***
(c) Technical violators.--
(1) A parolee under the jurisdiction of the board who
violates the terms and conditions of his parole, other than
by the commission of a new crime of which the parolee is
convicted or found guilty by a judge or jury or to which the
parolee pleads guilty or nolo contendere in a court of
record, may be detained pending a hearing before the board
or waiver of the hearing or recommitted after a hearing
before the board or a waiver of the hearing.
(2) If the parolee is recommitted under this
subsection, the parolee shall be given credit for the time
served on parole in good standing but with no credit for
delinquent time and may be reentered to serve the
remainder of the original sentence or sentences.
61 Pa. C.S. §6138 (emphasis added).
This provision makes clear that CPVs “are not entitled to any credit for
street-time.” Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596,
599 (Pa. Cmwlth.) (en banc), appeal denied, 29 A.3d 374 (Pa. 2011). As such,
“when a parolee is recommitted due to criminal conviction, his maximum sentence
date may be extended to account for all street-time, regardless of good or delinquent
standing.” Id.; see also id. (“[T]ime spent in good standing prior to recommitment
for technical violations is not shielded from forfeiture where the parolee subsequently
commits a new crime and is recommitted as a convicted parole violator.” (emphasis
in original)); Young v. Board of Probation and Parole, 409 A.2d 843, 847 n.8 (Pa.
10
1979) (explaining that our courts have “rejected the concept that the denial of credit
for ‘street time’ represented an enhancement of the sentence originally imposed”).
Because the decision to credit the time a parolee spent at liberty on parole lies within
the sound discretion of the Board, and because Petitioner has presented no evidence
to suggest that the Board abused its discretion in denying him credit, we affirm the
Board’s order in this regard.
2.
Regarding Petitioner’s claim that the Board erred in recalculating his
maximum violation date to a date after his initial date of September 20, 2014 expired
and thereby enhanced his sentence beyond that judicially imposed, we disagree.
Section 6138(a)(1) of the Prison and Parole Code enables the Board, in its discretion,
to recommit as a parole violator a parolee “released from a correctional facility who,
during the period of 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…at any time thereafter in a court of record.” 61 Pa. C.S. §6138(a)(1)
(emphasis added). For purposes of recommitting, the Board does not lose jurisdiction
over a parolee simply because the initial violation maximum date expires, if, prior to
the expiration of that date, a parolee commits another crime for which he is arrested.
Indeed, the operative date is not the date on which an initial violation maximum date
expires, but rather, the date on which the crime for which a parolee is recommitted
occurred. Stated differently, if the crime occurred before the expiration of the
maximum date but the parolee is convicted of it after the maximum date, the Board
nonetheless has the authority to recommit the parolee as a CPV. Id.
11
3.
To the extent Petitioner claims that his due process rights were violated,
Petitioner was entitled to a hearing at which he could have challenged the accuracy of
any facts used to recalculate his sentence. See Pierce v. Pennsylvania Board of
Probation and Parole, 500 A.2d 181, 183 (Pa. Cmwlth. 1985). However, in this
instance, Petitioner waived his right to such a hearing.
4.
Finally, Petitioner argues that his conviction on the drug charge was not
pursuant to Section 13(f)(1.1) of the Controlled Substances Act, 35 P.S. §780-
113(f)(1.1), upon which the Board relied for establishing the presumptive sentencing
range. To this end, he directs the Court to his sentencing order. While it appears that
Petitioner argues that he was not convicted of possessing cocaine with intent to
distribute, a review of the sentencing order belies this argument. Indeed, on its face,
the order notes that Petitioner was convicted on a one-count felony charge pursuant to
Section 13(a)(30) of the Controlled Substances Act, which prohibits the
“manufacture, delivery, or possession with intent to manufacture or deliver, a
controlled substance by a person not registered under this act, or a practitioner not
registered or licensed by the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a counterfeit controlled substance.” 35
P.S. §780-113(a)(30).5
5
This charge corresponds with the cocaine charge on the police report, whereas with regard
to marijuana, Petitioner was charged only with possession under Section 13(a)(16) of the Controlled
Substances Act, 35 P.S. §780-113(a)(16).
12
Section (f) proceeds to provide various penalties for this offense based
upon which controlled substance was at issue, with subsection (1.1) pertaining to
cocaine. Section 13(f)(1.1) of the Controlled Substances Act, 35 P.S. §780-
113(f)(1.1) (applying to “coca leaves and any salt, compound, derivative or
preparation of coca leaves; any salt, compound, derivative or preparation of the
preceding which is chemically equivalent or identical with any of these substances,
except decocanized coca leaves or extracts of coca leaves, which extracts do not
contain cocaine or ecgonine”); Commonwealth v. Eicher, 605 A.2d 337, 355 (Pa.
Super.) (noting that the possession of cocaine with the intent to deliver is a felony
punishable by a maximum term of ten years’ imprisonment as per Section 13(f)(1.1)
of the Controlled Substances Act, 35 P.S. §780-113(f)(1.1)), appeal denied, 617 A.2d
1272 (Pa. 1992). Therefore, the Board did not err in relying upon Section 13(f)(1.1)
of the Controlled Substances Act for purposes of establishing Petitioner’s maximum
sentence with respect to his drug conviction.
Accordingly, having found Petitioner’s appeal meritless, we affirm the
Board’s order and grant Counsel leave to withdraw.
DAN PELLEGRINI, President Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Damel Nareef Etheridge, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation and :
Parole, :
Respondent : No. 885 C.D. 2015
ORDER
AND NOW, this 8th day of January, 2016, the order of the
Pennsylvania Board of Probation and Parole bearing a mailing date of May 5,
2015, is affirmed, and James L. Best, Esquire’s motion for leave to withdraw as
counsel is granted.
DAN PELLEGRINI, President Judge