C. Ledbetter v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Calvin Ledbetter, :
Petitioner :
:
v. : No. 1209 C.D. 2015
: Submitted: June 3, 2016
Pennsylvania Board of Probation and :
Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: October 24, 2016
Calvin Ledbetter (Ledbetter) petitions for review of a July 13, 2015 Decision
of the Pennsylvania Board of Probation and Parole (Board) that denied Ledbetter’s
Administrative Appeal and affirmed its April 17, 2015 Order recommitting him as
a technical parole violator (TPV) and convicted parole violator (CPV) and
recalculating his maximum sentence date to September 8, 2018. Ledbetter is
represented in this matter by court-appointed counsel Harry J. Cancelmi, Jr.,
Esquire (Counsel). Presently before this Court for disposition is Counsel’s
Application for Leave to Withdraw Appearance (Application to Withdraw), with
an “Anders Brief”1 attached, which is based on his conclusions that Ledbetter’s
appeal lacks a basis in law or fact and is therefore without merit. For the reasons
that follow, we deny Counsel’s Application to Withdraw.
On January 31, 2006, Ledbetter was sentenced to serve 2 years, 6 months to
10 years in a State Correctional Institution (SCI) after pleading guilty to the
manufacture, sale, delivery, or possession with intent to deliver a controlled
substance. Ledbetter’s original minimum release date was May 26, 2008, and his
maximum release date was November 26, 2015. (Sentence Status Summary, C.R.
at 1.) The Board granted Ledbetter parole on January 29, 2008, and he was
released on May 28, 2008. (C.R. at 8-9.)
On January 7, 2010, Ledbetter was arrested for continued drug use and
failure to respond to sanctions, and was transported to SCI-Pittsburgh.
(Supervision History, C.R. at 37.) On February 23, 2010, the Board recommitted
Ledbetter to a SCI as a TPV for violation of condition #5A, use of drugs. (Board
1
In probation and parole cases where no constitutional right to counsel is involved, an
attorney wishing to withdraw from representing a prisoner is permitted to file a no-merit letter
instead of a brief in accordance with Anders v. State of California, 386 U.S. 738 (1967).
Seilhamer v. Pa. Bd. of Prob. and Parole, 996 A.2d 40, 42 n.4 (Pa. Cmwlth. 2010). A
constitutional right to counsel exists where a parolee presents:
[a] colorable claim (i) that he has not committed the alleged violation of the
conditions upon which he is at liberty; or (ii) that, even if the violation is a matter
of public record or is uncontested, there are substantial reasons which justified or
mitigated the violation and make revocation inappropriate, and that the reasons
are complex or otherwise difficult to develop or present.
Id. (quoting Hughes v. Pa. Bd. of Prob. and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009)). Here,
Ledbetter has no constitutional right to counsel, but does have a statutory right to counsel under
Section 6(a)(10) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended,
16 P.S. § 9960.6(a)(10). Therefore, Counsel could have filed a no-merit letter instead of an
Anders brief. We will thus treat Counsel’s Anders Brief as if it were filed as a no-merit letter.
2
Decision, mailed Feb. 24, 2010, C.R. at 10-11.) In its recommitment decision, the
Board indicated that Ledbetter would be reparoled to an approved plan upon
successful completion of the parole violator therapeutic community program. (Id.)
Ledbetter was reparoled and released on July 22, 2010. (C.R. at 14.) On July 30,
2010, Ledbetter was arrested by the Butler City Police after being observed selling
heroin to an individual. Ledbetter’s case was continued pending disposition of the
outstanding charges. By decision mailed November 29, 2011, the Board
recommitted Ledbetter to serve 9 months backtime as a TPV for multiple technical
parole violations. (C.R. at 17-18.) On October 12, 2012, the Board reparoled
Ledbetter, and he was released to his mother’s home on November 20, 2012.
(Board Decision, C.R. at 21.)
On April 12, 2014, Ledbetter was arrested by the Pennsylvania State Police
for driving under the influence of alcohol or controlled substance (DUI)-1st
offense, driving while operating privilege is suspended or revoked, and exceeding
the maximum speed limit, and detained in Allegheny County Prison. (Criminal
Arrest and Disposition Report, C.R. at 28; Police Criminal Complaint, C.R. at 31-
32.) The Board issued a warrant to commit and detain Ledbetter the same day.
(C.R. at 27.) At the prison, it was discovered that Ledbetter was concealing “two
eight balls of cocaine, 47 stamp bags of heroin, and a small amount of marijuana”
in his rectum, and additional charges were filed later. (C.R. at 28, 70.) Ledbetter
posted bail the next day. (C.R. at 57.) Ledbetter was also found to have
committed technical parole violations of #5a, use of drugs, as a result of the new
criminal charges. (Notice of Charges and Hearing, C.R. at 40.) On April 22, 2014,
Ledbetter signed a Waiver of Violation Hearing and Counsel/Admission Form, and
admitted to violating the terms and conditions of his parole. (C.R. at 42-43.)
3
On May 12, 2014, the Board rendered a decision to detain Ledbetter pending
disposition of the April 12, 2014 criminal charges, to recommit Ledbetter as a TPV
to a SCI/Contracted County Jail for six months, and to reparole Ledbetter upon
successful completion of prescribed programs if no misconducts, but not later than
six months. (Board Decision, C.R. at 54.) The Board Decision also indicated that
Ledbetter would be reparoled automatically without further action of the Board
upon completion of prescribed programs and subject to certain conditions. (Id. at
55.)
On January 12, 2015, Ledbetter pled guilty to possession with intent to
deliver a controlled substance, DUI-1st offense, and driving while operating
privilege is suspended or revoked, and the other charges were withdrawn.
(Criminal Arrest and Disposition Report, C.R. at 70.) In the Court of Common
Pleas of Allegheny County, Ledbetter was sentenced to 1 to 2 years confinement in
SCI-Greene plus 72 hours time served, 3 years of state-supervised probation plus
an additional 6 months of county regular probation, also state-supervised, to be
served concurrent with the 3 years of probation. (Order of Sentence, C.R. at 71-
72.)2 Ledbetter received 20 days credit for time served. (C.R. at 72.) The Board
received official verification of Ledbetter’s convictions on February 4, 2015. (C.R.
at 70.)
Ledbetter signed a Waiver of Revocation Hearing and Counsel/Admission
Form on February 11, 2015, and admitted to pleading guilty to the new criminal
charges. By Board Decision mailed on April 17, 2015, the Board modified its May
2
Ledbetter was also required to complete certain DUI-related conditions, including
receive a drug and alcohol evaluation, receive a drug screening, and attend Safe Driving School.
(C.R. at 72.)
4
12, 2014 decision, by deleting the reparole provision, reaffirming its prior action to
recommit Ledbetter as a TPV to serve 6 months backtime, and recommitting
Ledbetter to a SCI to serve a total of 36 months backtime as a CPV. (Board
Decision, Apr. 17, 2015, C.R. at 116.) The Board determined that Ledbetter had
1,101 days left on his original sentence. However, prior to his reparole, Ledbetter
was at liberty on parole for 589 days, from May 28, 2008 to January 7, 2010, and 8
days, from July 22, 2010 to July 30, 2010, for a total of 597 days. The Board
denied Ledbetter credit for this time at liberty on parole based on his new criminal
conviction. Ledbetter was given credit for 88 days, from November 3, 2008 to
January 30, 2009, and 275 days, from April 12, 2014 to January 12, 2015, which
left Ledbetter with 1,335 days of backtime remaining and yielded a new maximum
date of September 8, 2018, based on a return to custody date of January 12, 2015.
(Order to Recommit, C.R. at 114.)
Ledbetter filed a timely Administrative Appeal and Petition for
Administrative Review, pro se, on May 2, 2015, challenging the recalculation of
his maximum sentence date, which caused him to serve more than the balance of
his original unexpired sentence, and the Board’s imposition of “34 months”
backtime, in violation of 37 Pa. Code §§ 75.1 and 75.2 and Davenport v.
Pennsylvania Board of Probation and Parole, 656 A.2d 581 (Pa. Cmwlth. 1995).
(Administrative Appeal, C.R. at 118.) Ledbetter also alleged unspecified
constitutional violations and requested that an attorney be appointed to represent
him.
The Board denied Ledbetter’s Administrative Appeal and Petition for
Administrative Review and reaffirmed its prior decision, reasoning that it had the
statutory authority to recalculate Ledbetter’s maximum sentence date to September
5
8, 2018, based on his recommitment as a CPV and indicating that he received no
credit for all of the periods of time he spent at liberty on parole pursuant to Section
6138(a)(2) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. § 6138(a)(2).
(Board Decision, July 13, 2015, C.R. at 128.) The Board also indicated that
Ledbetter does have the right to counsel, but that it could not appoint counsel for
him, and that Ledbetter’s due process rights were satisfied. On July 16, 2015,
Ledbetter filed a Petition for Review, pro se, with this Court seeking review of the
Board’s July 13, 2015 Decision.3 By Order dated July 29, 2015, this Court
appointed the Public Defender of Greene County to represent Ledbetter. Counsel
entered his appearance on behalf of Ledbetter on August 10, 2015. (Entry of
Appearance, filed August 17, 2015.) Counsel subsequently filed the Application to
Withdraw, along with his No-Merit Letter, on March 21, 2016.
This Court has held that in order to withdraw, appointed counsel must file a
“no-merit” letter/Turner letter, which must detail: “‘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.’” Zerby v. Shanon, 964
A.2d 956, 961 (Pa. Cmwlth. 2009) (quoting Commonwealth v. Turner, 544 A.2d
927, 928 (Pa. 1988)). “[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. and Parole, 680 A.2d 47, 48 (Pa. Cmwlth.
1996) (citations omitted). Counsel is also required to “notify the parolee of his
3
Our Court’s review in parole revocation cases “is limited to a determination of whether
necessary findings are supported by substantial evidence, [whether] an error of law was
committed, or whether constitutional rights of the parolee were violated.” Johnson v. Pa. Bd. of
Prob. and Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998).
6
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. and
Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006) (internal citations omitted). If these
requirements are satisfied, 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 (citation omitted).
Therefore, before considering the merits of Ledbetter’s appeal, we must first
evaluate Counsel’s No-Merit Letter and determine whether it complies with
Turner.
We begin by noting that Counsel has complied with the notice requirements
for no-merit letters. Counsel served Ledbetter with a copy of the No-Merit Letter,
his Application to Withdraw, and this Court’s March 23, 2016 Order, notifying
Ledbetter that he may either obtain substitute counsel or file a brief on his own
behalf. (Application to Withdraw at 2, 4; No-Merit Letter at 24; Certificate of
Service, filed Apr. 13, 2016.) In his No-Merit Letter, Counsel sets forth the
extensive facts and procedural history of Ledbetter’s case, thus, satisfying his
obligation to thoroughly review the certified record in this matter. Zerby, 964
A.2d at 960. It appears, however, that Counsel did not address all of the issues
Ledbetter seeks to raise in his appeal.
Turning to the substance of Counsel’s No-Merit Letter, Counsel identifies
Ledbetter’s argument on appeal to this Court as:
Did the Board err in recommitting the offender to serve beyond the
balance of his original unexpired term of November 26, 2015
computing his maximum date to September 8, 2018 in violation of 37
7
Pa. Code 75.1 and 2 and Davenport v. Pennsylvania Board of
Probation and Parole, 656 A.2d 581 (Pa. Cmwlth. 1995)?
(No-Merit Letter at 17.) In the Argument section of Counsel’s No-Merit Letter,
Counsel identifies Ledbetter’s issue on appeal as “Was [the Board]’s decision in
imposing a new maximum parole violation date of March 4, 2023 [Counsel
identifies March 4, 2023 as Ledbetter’s new maximum parole violation date,
however, Ledbetter’s new maximum date is actually September 18, 2018],
prohibited as an alteration of a judicially made sentence?” (No-Merit Letter at 20.)
Counsel also characterizes Ledbetter’s argument a third way as that
the Board did not have the authority to recalculate his maximum
sentence date by removing his street time because, pursuant to
Davenport . . . and McCauley v. Pennsylvania Board of Probation and
Parole, 510 A.2d 877, 879 n.8 (Pa. Cmwlth. 1986), the Board “does
not have the power to alter a judicially-imposed sentence.”
(Id.) Counsel analyzes this third issue as being without merit because the Board
correctly recalculated Ledbetter’s sentence by withdrawing credit for the time
Ledbetter spent at liberty on parole, in accordance with Section 6138(a)(2) of the
Parole Code. (Id. at 21.) Counsel cites to Davidson v. Pennsylvania Board of
Probation and Parole, 33 A.3d 682 (Pa. Cmwlth. 2011) (rejecting a petitioner’s
argument that application of Section 6138(a) of the Parole Code is a violation of
the constitutional separation of powers doctrine), as support for his contention that
Ledbetter’s appeal is without merit. (Id. at 20.) Counsel thereafter performed
calculations to determine whether Ledbetter’s new maximum date was correct, and
concluding that it was, asserts that any challenge to that date is “frivolous.” (No-
Merit Letter at 22.)
8
However, Counsel does not address Ledbetter’s argument that the Board
imposed a term of recommitment, i.e., backtime, following his conviction that
unlawfully extended his judicially-imposed sentence by exceeding, in the
aggregate, the time he had remaining on his original sentence. In his
Administrative Appeal and Petition for Administrative Review, Ledbetter states
that adding 34 months of backtime onto his original maximum date of November
26, 2015, for a new maximum date of September 8, 2018, violates 37 Pa. Code §§
75.1 and 75.2 (relating to presumptive ranges) and Davenport. (C.R. at 118.) In
his Petition for Review, Ledbetter acknowledges that, as a CPV, he can be
recommitted to serve the additional part of his term that he would have been
compelled to serve in accordance with the presumptive ranges listed in the
regulation, citing 37 Pa. Code § 75.2.4 (Petition for Review at 2.) Nevertheless,
Ledbetter asserts that:
[t]he Board cannot recommit a [CPV] to serve more than the balance
of his or her unexpired term, so much the aggregate of time served
prior to parole, [and] the backtime imposed does not exceed the
maximum sentence first imposed by the trial court. Merritt v.
Pennsylvania Board of Probation, . . . 574 A.2d 597 ([Pa.] 1990).
4
Section 75.2 of the Board’s regulations provides, in pertinent part, as follows:
If the Board orders the recommitment of a parolee as a [CPV], the parolee shall be
recommitted to serve an additional part of the term which the parolee would have
been compelled to serve had he not been paroled, in accordance with the . . .
presumptive ranges [set forth below.]
37 Pa. Code § 75.2. Various crimes have a presumptive range of backtime, with Driving Under
the Influence having a range of 3 months to 6 months and certain felony violations of The
Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as
amended, 35 P.S. §§ 780-101 – 780-144, having a range of 24 months to 36 months. 37 Pa.
Code § 75.2.
9
(Petition for Review ¶ 12.) While Counsel cites to Davenport and 37 Pa. Code §§
75.1 and 75.2 in his No-Merit Letter within his quote of Ledbetter’s issue, he does
not do so in the context of what it appears that Ledbetter is arguing: that even if
the backtime imposed is within the presumptive ranges, the Board cannot require
him to serve all of the backtime if it exceeds, in the aggregate, the time remaining
on his original sentence. Counsel makes no other reference to the regulations and
does not include any discussion regarding presumptive ranges. Counsel likewise
does not mention Merritt, which addresses the “aggregate” time issue. While this
issue may ultimately prove to be without merit, Counsel is required to address it in
his No-Merit Letter to satisfy the requirements of Zerby. Accordingly, we deny
Counsel’s Application to Withdraw.
________________________________
RENÉE COHN JUBELIRER, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Calvin Ledbetter, :
Petitioner :
:
v. : No. 1209 C.D. 2015
:
Pennsylvania Board of Probation and :
Parole, :
Respondent :
ORDER
NOW, October 24, 2016, the Application for Leave to Withdraw
Appearance filed by Harry J. Cancelmi, Jr., Esquire (Counsel) is hereby DENIED,
without prejudice. Counsel is granted 30 days from the date of this Order to either
file a renewed application to withdraw, along with an amended no-merit letter, or
submit a brief on the merits of Calvin Ledbetter’s Petition for Review.
________________________________
RENÉE COHN JUBELIRER, Judge