L.D. Gonzalez v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Luis Daniel Gonzalez, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole, : No. 310 C.D. 2016
Respondent : Submitted: July 1, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 23, 2016
Luis Daniel Gonzalez (Gonzalez) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) February 11, 2016 order
denying his request for administrative relief. Gonzalez’s counsel, David Crowley,
Esquire (Counsel), has filed an application to withdraw his representation of
Gonzalez (Application). After review, we grant the Application and affirm the
Board’s order.
Gonzalez is an inmate at the State Correctional Institution (SCI) at Camp
Hill. On July 22, 2013, the Board paroled Gonzalez to the York Community
Corrections Center from a 2½ to 7-year sentence for simple assault, assault by
prisoner and the manufacture, sale, delivery and/or possession of drugs with the intent
to deliver (Original Sentence). At that time, his maximum sentence release date was
June 24, 2017. As a condition of his parole, Gonzalez agreed:
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 sentence or sentences which you were serving when
paroled/reparoled, with no credit for time at liberty on
parole.
Certified Record (C.R.) at 9. Gonzalez did not raise any objections to the above-
quoted parole condition.
On April 2, 2015, Gonzalez was arrested and charged with possession of
a controlled substance (heroin), and possession with the intent to deliver a controlled
substance (heroin) (New Charges). See C.R. at 18-21. On April 3, 2015, the Board
issued a warrant to commit and detain Gonzalez pending disposition of the New
Charges. See C.R. at 14. The trial court set bail in the amount of $50,000.00, but
Gonzalez did not post bail. See C.R. at 23-24. Based upon a negotiated guilty plea
reached August 13, 2015, Gonzalez was sentenced to 2½ to 5 years of incarceration
(New Sentence), but was given credit for the 134 days he served pending disposition
of the New Charges. See C.R. at 37-38.
On August 19, 2015, the Board served Gonzalez with a notice of charges
and notice of the Board’s intent to hold a parole revocation hearing. See C.R. at 30.
That day, Gonzalez admitted to the New Charges, and waived his right to counsel and
a revocation hearing. See C.R. at 31, 41-42. On September 18, 2015, Board panel
member Craig McKay accepted Hearing Examiner Gary Holland’s September 3,
2015 recommendation and provided the second signature needed to recommit
Gonzalez as a convicted parole violator to serve 24 months backtime without credit
for time he spent at liberty on parole. See C.R. at 43-44, 48. By October 2, 2015
decision (issued October 14, 2015), the Board formally recommitted Gonzalez to
serve 24 months backtime, and recalculated his maximum sentence release date as
August 21, 2019. See C.R. at 52-53.
On November 10, 2016, based solely upon his interview with Gonzalez
as Counsel did not have the Board’s record at that time, Counsel timely sought
2
administrative relief on Gonzalez’s behalf challenging the Board’s sentence credit
calculation and its authority to extend Gonzalez’s judicially-imposed sentence. See
C.R. at 55-56. By February 11, 2016 decision, the Board denied Gonzalez
administrative relief. On February 29, 2016, Counsel appealed from the Board’s
decision to this Court on Gonzalez’s behalf.1
Before reviewing whether the Board erred in recalculating Gonzalez’s
maximum sentence release date, this Court must consider Counsel’s Application.
Counsel received the Board’s certified record in this matter on March 24, 2016. After
reviewing the record and his interview notes, Counsel determined that Gonzalez’s
appeal is without merit.
In order to withdraw representation, counsel must review the case
zealously, and:
submit a ‘no-merit’ letter to the trial court, or brief[2] on
appeal to this Court, detailing the nature and extent of
1
“Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
2
A significant portion of Counsel’s brief is dedicated to his explanation of why a brief was
necessary in this case. Formerly, “to protect an indigent criminal defendant’s right to effective
assistance of counsel under the Sixth Amendment of the United States Constitution and to ensure
that the attorney seeking to withdraw is not forced to argue against his client,” counsel were
required to file a petition and a brief pursuant to Anders v. California, 386 U.S. 738 (1967)
“present[ing] the reviewing court with information that will aid it in determining whether the
defendant’s appeal is frivolous.” Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 22 (Pa.
Cmwlth. 2009) (en banc). In the Anders brief, counsel were to “set[] forth issues that might
arguably support the appeal along with any other issues necessary for the effective appellate
presentation thereof.” Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007).
In Commonwealth v. Turner, . . . 544 A.2d 927 ([Pa.] 1988), the
Pennsylvania Supreme Court adopted a less stringent standard for the
withdrawal of appointed counsel from cases in which the right to
counsel does not derive from the United States Constitution, such as
collateral appeals. The Court held that, rather than an Anders brief,
counsel may instead provide a ‘no-merit’ letter which details ‘the
3
counsel’s diligent review of the case, listing the issues
which the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting
permission to withdraw.
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (emphasis added).
Here, Counsel’s Application states: “[Counsel] has notified [Gonzalez]
of [Counsel’s] request to withdraw, furnished [Gonzalez] with a copy of the [b]rief in
support of [the Application], and advised [Gonzalez] of his right to retain new
counsel or raise any points that might deem worthy of consideration as required . . . .”
Counsel’s App. ¶ 4. Counsel’s brief is entitled “Brief for Applicant,” and specifies
therein that it is his “Brief in Support of Application to Withdraw Appearance
[(Brief)].” In the Brief’s conclusion, Counsel again provides: “A copy of this Brief
has been served upon [Gonzalez] with instructions that any additional reasons in
support of his Petition [for Review] be submitted to the Commonwealth Court of
Pennsylvania.” Counsel Br. at 22.
We take notice that the Certifications of Service filed with the
Application and the Brief reflect that Counsel served them upon Gonzalez by first-
class mail on April 26, 2016. On April 28, 2016, this Court ordered that the
Application shall be considered with the merits of Gonzalez’s appeal, and stated that
Gonzalez could obtain new counsel. Counsel was directed therein to serve the April
nature and extent of [the attorney’s] review and list[s] each issue the
petitioner wished to have raised, with counsel’s explanation of why
those issues are meritless,’ at which point the court must conduct its
own review of whether the claim is meritless.
Hughes, 977 A.2d at 24-25 (footnote omitted) (quoting Turner, 544 A.2d at 928). The Hughes
Court recognized that, “[i]n recent years, this Court has shown little concern for whether it receives
an Anders brief or a no-merit letter in a parole revocation matter. This Court has recently drawn
little distinction between whether the case must be ‘frivolous’ or ‘meritless’ before counsel may
withdraw.” Hughes, 977 A.2d at 25 (citation omitted). In maximum sentence release date cases,
“[w]here an Anders brief is filed when a no-merit letter would suffice, the Anders brief must at least
contain the same information that is required to be included in a no-merit letter.” Seilhamer v. Pa.
Bd. of Prob. & Parole, 996 A.2d 40, 42-43 (Pa. Cmwlth. 2010).
4
28, 2016 order upon Gonzalez within 14 days. On May 2, 2016, Counsel filed an
Affidavit of Service wherein he swore that he served the Court’s April 28, 2016 order
upon Gonzalez by first-class mail on May 2, 2016.3
In Counsel’s Brief, despite that Gonzalez’s sole issue on appeal is
whether the Board properly extended his maximum sentence release date, Counsel
also referenced “Other Issues Apparent in Counsel’s Review of the Record,” and
clarified that the Board erred by stating that Gonzalez was ineligible for reparole until
September 18, 2017, when Gonzalez is eligible for reparole as of October 3, 2016.4
Counsel Br. at 21. It is clear that Counsel carefully examined the issues herein, in
particular, whether the Board properly extended Gonzalez’s maximum sentence
release date to August 21, 2019, both in terms of whether the Board was
constitutionally authorized to extend it, and whether the date was properly calculated.
Counsel concluded that he “is unable to raise or argue any available issue which
would entitle [Gonzalez] to relief.” Counsel Br. at 22. Accordingly, we hold that
Counsel’s Brief “set[] forth issues that might arguably support the appeal along with
any other issues necessary for the effective appellate presentation thereof.”
Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007). Finding that
Counsel’s Brief satisfied the Anders/Commonwealth v. Turner, 544 A.2d 927 (Pa.
3
Gonzalez has not responded to the Application, nor has substitute counsel entered an
appearance on Gonzalez’s behalf.
4
Counsel is correct. The Board’s October 2, 2015 decision (issued October 14, 2015)
states: “NOT ELIGIBLE FOR REPAROLE UNTIL [SEPTEMBER 18, 2017].” C.R. at 52. However, because
Gonzalez has the right to apply for reparole one year from the date of the Board’s decision,
Gonzalez was eligible for reparole consideration on or after October 3, 2016. Section 6139(a)(3) of
the Prisons and Parole Code, 61 Pa.C.S. § 6139(a)(3) (“the [B]oard shall not be required to consider
nor dispose of an application by an inmate . . . where a parole decision has been issued by the
[B]oard on that case within one year of the date of the current application for parole.”). Moreover,
since Counsel stated that Gonzalez received his reparole application on or after October 3, 2016, see
Counsel Br. at 21, the issue is moot.
5
1988), requirements, we undertake our own review of the merits of Gonzalez’s
appeal.
Gonzalez argues that the Board was not authorized to extend his
judicially-imposed sentence. Section 6138 of the Prisons and Parole Code (Parole
Code) governs the Board’s maximum sentence release date calculations. Section
6138(a) of the Parole Code states, in pertinent part:
Convicted violators.--
(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 . . . pleads guilty . .
. 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 term
which the parolee would have been compelled to serve
had the parole not been granted . . . .
61 Pa.C.S. § 6138(a) (text emphasis added).
We acknowledge that “[t]he Board can only require that a parolee serve
the remaining balance of his unexpired term since the Board does not have the power
to alter a judicially-imposed sentence.” Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d
496, 502 (Pa. Cmwlth. 2012) (quoting Savage v. Pa. Bd. of Prob. & Parole, 761 A.2d
643, 645 (Pa. Cmwlth. 2000) (citation omitted)). However, “when a parolee is
recommitted due to criminal conviction, his maximum sentence date may be extended
to account for all street-time,[5] regardless of good or delinquent standing.” Richards
v. Pa. Bd. of Prob. & Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011). Moreover, the
Pennsylvania Supreme Court has specifically held that the Board’s authority to
5
“‘Street time’ is a term for the period of time a parolee spends at liberty on parole.”
Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
6
extend maximum term expiration dates under such circumstances does not usurp the
courts’ sentencing functions, or violate a parolee’s due process rights. Gaito v. Pa.
Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).6 Accordingly, the Board did not
extend Gonzalez’s judicially-imposed sentence, but rather, properly extended his
maximum sentence date to account for Gonzalez’s street-time.
In response to Counsel’s request for administrative relief, the Board
stated:
The Board recalculated your client’s max date to August 21,
2019 based on his recommitment as a convicted parole
violator. The decision to recommit [] Gonzalez as a
convicted parole violator gave the Board statutory authority
to recalculate his sentence to reflect that he received no
credit for the period he was at liberty on parole. 61 Pa. C.S.
§ 6138(a)(2). The Board advised [] Gonzalez of this
potential penalty on the parole conditions he signed on July
19, 2013. Additionally, the ability to challenge the
recalculation decision after it is imposed satisfies his due
process rights. Therefore, the Board’s recalculation of your
client’s max date is constitutional. Young v.
Commonwealth, 409 A.2d 843 (Pa. 1979).
6
Gaito was based upon Section 21.1 of what was commonly known as the Parole Act, Act
of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L.
1401, formerly 61 P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Section
21.1(a) of the Parole Act similarly stated:
Any parolee under the jurisdiction of the [Board] released from any
penal institution of the Commonwealth who, during the period of
parole or while delinquent on parole, commits any crime punishable
by imprisonment, for which . . . he pleads guilty . . . in a court of
record, may, at the discretion of the [B]oard, be recommitted as a
parole violator. If his recommitment is so ordered, he shall be
reentered to serve the remainder of the term which said parolee
would have been compelled to serve had he not been paroled, and
he shall be given no credit for the time at liberty on parole . . . .
(Emphasis added).
7
C.R. at 60. Finding no error in the Board’s response, we agree with Counsel and hold
that Gonzalez’s argument that the Board improperly extended his sentence has no
merit.
Gonzalez also claims that the Board improperly calculated his new
parole violation maximum date by failing to credit his Original Sentence with all of
the confinement time to which he was entitled. We disagree.
We acknowledge that, under Section 6138(a)(5)(i) of the Parole Code, a
parolee who is paroled from a state institution and is sentenced on new charges to a
state institution must serve the balance of the original sentence before serving the
new sentence. 61 Pa.C.S. § 6138(a)(5). However, it is well-established that
if a defendant is being held in custody solely because of a
detainer lodged by the Board and has otherwise met the
requirements for bail on the new criminal charges, the time
which he spent in custody shall be credited against his
original sentence. If a defendant, however, remains
incarcerated prior to trial because he has failed to
satisfy bail requirements on the new criminal charges,
then the time spent in custody shall be credited to his
new sentence.
Gaito, 412 A.2d at 571 (bold emphasis added). Further, this Court recently held:
Section 6138(a)(4) of the [Parole] Code provides: ‘The
period of time for which a parole violator is required to
serve shall be computed from and begin on the date that the
parole violator is taken into custody to be returned to the
institution as a parole violator.’ 61 Pa.C.S. § 6138(a)(4). . .
. ‘[O]nce a parolee is sentenced on a new criminal
offense, the period of time between arrest and
sentencing, when bail is not satisfied, must be applied to
the new sentence, and not to the original sentence.’
Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348,
352 (Pa. Cmwlth. 2007).
Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016)
(emphasis added). Moreover, “a parole violator’s new maximum date is calculated
8
from the date on which the Board obtained the second signature needed to recommit
him as a [convicted parole violator].” Id.In this case, the Board stated:
[T]he Board properly recalculated the max[imum] date.
The Board paroled [] Gonzalez from his sentence imposed
to be served at a state correctional institution (‘SCI’) on
July 22, 2013 with a max[imum] date of June 24, 2017.
This means he had a total of 1433 days remaining on his
sentence (from [July 22, 2014] to [June 24, 2017] = 1433
days). As previously stated, the Board did not grant your
client credit for time at liberty on parole[,] so he still had
1433 days remaining.
On April 3, 2015, authorities detained your client for new
criminal charges . . . . There is no indication that he posted
bail from these charges and you do not claim that he posted
bail. The Board lodged its detainer against him that same
day. [] Gonzalez pled guilty to the new criminal charges on
August 13, 2015 and the court sentenced him to a new term
of imprisonment to be served in an SCI that same day. The
Board voted to recommit [] Gonzalez as a parole violator on
September 18, 2015.
Based on these facts, the Board did not give your client any
credit on his [O]riginal [S]entence for the period he was
incarcerated from April 3, 2015 to August 13, 2015 because
he was held on both the [B]oard[’s] detainer and the new
criminal charges during this period. As such, credit for that
time must apply to his new sentence when it is calculated.
Gaito . . . . This means he still had 1433 days to serve on
the sentence.
The [Parole Code] provides that convicted parole violators
who are paroled from an[] SCI and receive a new sentence
to be served in an SCI 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 convicted
parole violator. Thus, your client did not become available
to commence service of his original sentence until
September 18, 2015 because that is when the Board voted
to recommit him as a parole violator. Campbell v. P[a.]
B[d.] of Prob[.] [&] Parole, 409 A.2d 980 (Pa. [Cmwlth.]
9
1980). Credit for the time he was confined from August 13,
2015 to September 18, 2015 should also be applied to []
Gonzalez’s new sentence when it is calculated. Adding the
1433 days he had remaining on the sentence to this
availability date yields a new maximum sentence date of
August 21, 2019.
Accordingly, the appeal panel finds no ground to grant
administrative relief and AFFIRMS the Board decision
mailed October 14, 2015.
C.R. at 60-61. Finding no error in the Board’s response, we agree with Counsel and
hold that Gonzalez’s argument that the Board improperly calculated his maximum
sentence release date has no merit.
Based upon the foregoing, Counsel’s Application is granted and the
Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Luis Daniel Gonzalez, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole, : No. 310 C.D. 2016
Respondent :
ORDER
AND NOW, this 23rd day of September, 2016, David Crowley, Esquire’s
Application to Withdraw Appearance is granted, and the Pennsylvania Board of
Probation and Parole’s February 11, 2016 order is affirmed.
___________________________
ANNE E. COVEY, Judge