M. Sharpe v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Sharpe, :
Petitioner :
:
v. : No. 885 C.D. 2014
: Submitted: June 5, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: September 14, 2015
Michael Sharpe petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal. Sharpe’s appointed counsel, Somerset County Special Assistant Public
Defender Marc T. Valentine (Counsel), has filed an application for leave to
withdraw as counsel. Finding no error in the Board’s decision, we affirm and also
grant Counsel leave to withdraw.
On December 8, 1992, Sharpe was convicted of robbery, witness
intimidation, terroristic threats and simple assault in the Philadelphia County Court
of Common Pleas. He was sentenced to 5 to 15 years in state prison, with a
maximum sentence date of December 16, 2008.
On April 26, 1999, Sharpe was paroled. He remained on parole until
November 20, 2002, when he was taken into federal custody and charged with the
crimes of conspiracy to commit offenses against the United States, receipt of stolen
firearms, possession of a firearm by a convicted felon, and assault on a United
States employee. On November 25, 2002, while Sharpe was in federal custody, the
Board issued a detainer warrant. Thereafter, in 2003, Sharpe was found guilty of
the federal conspiracy and stolen firearms offenses. In 2004, he pleaded guilty to
the federal charges of possession of a firearm by a felon and assault. Sharpe was
sentenced to an aggregate term of 144 months by the United States District Court
for the Eastern District of Pennsylvania on the new criminal convictions.
On April 8, 2013, the Federal Bureau of Prisons notified the Board
that Sharpe would become available “for pick up” on the Board’s detainer on May
24, 2013. Certified Record at 33. Sharpe was released to the Board and returned
to SCI-Graterford on that day as scheduled. A parole revocation hearing was held
on July 10, 2013.
At the hearing, Sharpe was represented by John L. Hekking, Esquire.
The Hearing Examiner explained the purpose of the hearing was to determine
whether Sharpe had a new criminal conviction. Parole Agent Grove1 introduced
Sharpe’s state and federal criminal records into evidence. Sharpe verified the
accuracy of his state and federal convictions.
At Sharpe’s request, Attorney Hekking asked the Board to review
documentation regarding Sharpe’s hypertrophic cardiomyopathy, a potentially fatal
heart condition. Sharpe complained that he was not receiving proper treatment for
his condition from the medical staff at SCI-Graterford. Sharpe acknowledged,
1
Grove’s first name is not provided in the hearing transcript.
2
however, that he receives daily prescription medication for his condition, which is
equivalent to the medication he received while he was in federal custody.
Attorney Hekking introduced into evidence 13 certificates of
accomplishment Sharpe received in federal prison.2 Sharpe asked the Board to
consider his positive behavior in federal prison. Sharpe also discussed his family.
He informed the Board that his wife has breast cancer and he has a 10-year-old
daughter he has had little contact with because of his incarceration. Sharpe
expressed his desire to become a good parent.
The Board recommitted Sharpe as a convicted parole violator to serve
24 months backtime based on his new federal convictions. Accordingly, the Board
recalculated his maximum sentence date to be January 14, 2023.
Sharpe filed a request for administrative relief, asserting that a
preliminary hearing must be held within 14 days of detention and a parole
revocation hearing held within 120 days of detention. Sharpe argued that the
Board violated his right to due process by not giving him a hearing during the two
years he was detained by federal authorities in Philadelphia, and by improperly
extending his parole violation maximum date after taking him into custody ten
years later. Sharpe further claimed that the Board violated his right to equal
protection because, while he was housed at the federal detention center, other
inmates were returned to state institutions to deal with their parole situations,
including parolees from out-of-state. Finally, Sharpe contended that Attorney
Hekking was intoxicated at the revocation hearing and provided ineffective
representation.
2
Sharpe completed courses in, inter alia, culinary arts, mentoring, parenting, cultural awareness
and literacy.
3
The Board Secretary denied the request for administrative relief,
explaining that a preliminary hearing is required only when a parolee is charged as
a technical parole violator. Sharpe was charged as a convicted parole violator.
The Secretary further explained that when a parolee is confined in a federal
correctional facility, his parole revocation hearing must be held within 120 days of
his return to a Pennsylvania correctional facility. Because Sharpe was not returned
to the Board’s custody until May 24, 2013, the July 10, 2013, revocation hearing
was timely and there was no violation of due process.
As to the equal protection claim, the Secretary held that Sharpe
presented no supporting facts. That federal authorities may have released other
prisoners to the Board did not establish an equal protection violation. Finally, the
Secretary rejected Sharpe’s claim of ineffective assistance of counsel because
Sharpe offered no evidence to support his claim that Attorney Hekking was
inebriated at the hearing. Sharpe also offered no evidence that Attorney Hekking
prejudiced Sharpe’s defense by making errors or rendering a deficient
performance.
Sharpe now petitions for this Court’s review.3 He claims: (1) the
Board violated his right to due process by failing to hold his parole revocation
hearing within 120 days of his return to State custody; (2) the Board violated his
right to due process by not providing him with a preliminary hearing within 14
days of his arrest on the federal charges; (3) the Board violated his equal protection
3
Our review is to determine whether substantial evidence supports the Board’s decision, whether
the Board erred as a matter of law, and whether the parolee’s constitutional rights were violated.
Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth.
2009).
4
rights by failing to hold his revocation hearing in a timely manner; and (4)
Attorney Hekking rendered ineffective assistance.
Counsel seeks to withdraw from his representation of Sharpe on the
basis that all of Sharpe’s issues lack merit. On October 17, 2014, this Court
ordered Counsel to advise Sharpe of his request to withdraw and of Sharpe’s right
to obtain counsel at his own expense or file a pro se brief to this Court. Counsel
complied with this order on October 31, 2014. New counsel has not entered an
appearance and Sharpe has not filed a pro se brief to this Court.
We begin with the technical requirements for a petition to withdraw
legal representation. When counsel believes an appeal lacks merit, he may file a
petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988). This Court has summarized the requirements established by Turner as
follows:
[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 list[s] 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 Turner, 544
A.2d at 928). “Counsel must also send to the petitioner: (1) a copy of the ‘no-
merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement
advising petitioner of the right to proceed pro se or by new counsel.” Zerby, 964
A.2d at 960. This Court then reviews the contents of the no-merit letter to
determine whether it meets the requirements of Turner. Id. If it does, this Court
conducts its own review of the merits of the parolee’s appeal. If we agree with
5
counsel that the issues lack merit, then we will permit counsel to withdraw and
deny relief. Id.
Here, Counsel’s no-merit letter details his review of Sharpe’s criminal
record, addresses the issues raised by Sharpe and explains why the issues lack
merit. Additionally, the record establishes that Sharpe received a copy of the no-
merit letter and Counsel’s petition to withdraw, and was advised of his right to
proceed pro se or by new counsel. Thus, because Counsel has fulfilled the
technical requirements for withdrawing his representation, we turn to the merits of
Sharpe’s appeal.
Sharpe’s first contention is that the parole revocation hearing was
untimely because it was not held within 120 days of his return to a State
correctional facility pursuant to 37 Pa. Code §71.4(l)(i). Sharpe contends that the
Board violated this regulation and his right to due process by waiting ten years to
hold his hearing. The Board counters that Sharpe was in federal custody and
outside the jurisdiction of the Department of Corrections from 2002 through 2013.
His July 10, 2013, revocation hearing was timely because it was held within 120
days of his release from federal custody to SCI-Graterford on May 24, 2013.
The Board’s regulations provide, in relevant part, as follows:
The following procedures shall be followed before a parolee is
recommitted as a convicted violator:
(1) A revocation hearing shall be held within 120
days from the date the Board received official
verification of the plea of guilty or nolo contendere
or of the guilty verdict at the highest trial court
level except as follows:
(i) If a parolee is confined outside
the jurisdiction of the Department of
6
Corrections, such as confinement out-
of-State, confinement in a Federal
correctional institution or
confinement in a county correctional
institution where the parolee has not
waived the right to a revocation
hearing by a panel in accordance with
Commonwealth ex rel. Rambeau v.
Rundle, 455 Pa. 8, 314 A.2d 842
(1973), the revocation hearing shall
be held within 120 days of the official
verification of the return of the
parolee to a State correctional
facility.
37 Pa. Code §71.4(1)(i) (emphasis added). Sharpe acknowledges he was in federal
custody from the time of his arrest in 2002 until May 24, 2013, when he was
transported to SCI-Graterford. Therefore, the Board is correct that his revocation
hearing, which occurred on July 10, 2013, was timely. As such, Sharpe’s first
claim is meritless.
Sharpe’s second claim is that the Board failed to provide him with a
preliminary hearing within 14 days of his arrest on the federal charges. The Board
responds that Sharpe was not entitled to a preliminary hearing in this case. We
agree with the Board.
Pursuant to the Board’s regulations, a parolee arrested on new
criminal charges who is not being detained on those new charges, but is being
detained solely on the Board’s warrant, may be entitled to a preliminary hearing.
See 37 Pa. Code §71.3 (setting forth procedures to “be followed if a parolee, not
already detained after appropriate hearings for other criminal charges or
technical violations, has been charged with a new criminal offense[.]”) (emphasis
added). Here, because Sharpe was detained by federal authorities on new criminal
7
charges, Section 71.3 is not applicable. Instead, Section 71.5(a) of the regulations
applies:
If the parolee is in custody in another state, or in Federal
custody, the Board may lodge its detainer but other matters may
be deferred until the parolee has been returned to a State
correctional facility in this Commonwealth.
37 Pa. Code §71.5(a).
When Sharpe was returned to SCI-Graterford, the new charges were
no longer “pending” because Sharpe had been convicted of them. He was returned
to SCI-Graterford as a convicted parole violator. When “a parolee is recommitted
as a convicted violator,” he is entitled to only a revocation hearing. 37 Pa. Code
§71.4, supra (requiring revocation hearing within 120 days of parolee’s return to a
State facility, along with right to notice of the hearing, right to counsel and right to
present evidence). Therefore, Sharpe’s claim that he was entitled to a preliminary
hearing lacks merit.
Sharpe’s third claim is that the Board’s failure to hold his revocation
hearing in a timely manner violated his right to equal protection under the law. In
support, Sharpe contends that while he was in custody at the federal detention
center in Philadelphia, other inmates were visited by their Pennsylvania parole
agents and received revocation hearings. Sharpe’s equal protection claim is
grounded on this allegation of disparate treatment.
The right to equal protection under the law is guaranteed under the
Fourteenth Amendment to the United States Constitution, and Article I, Sections 1
and 26 of the Pennsylvania Constitution.4 Notably, this fundamental right does not
4
Section 1 of the Fourteenth Amendment to the United States Constitution states:
(Footnote continued on the next page . . .)
8
prohibit the Commonwealth from classifying individuals and treating them
differently based upon their differing circumstances. Curtis v. Kline, 666 A.2d
265, 267-68 (Pa. 1995). For example, this Court has held that the Board is not
required to treat every parolee in an identical manner. Jamieson v. Pennsylvania
Board of Probation and Parole, 495 A.2d 623, 629 (Pa. Cmwlth. 1985)
(individuals who commit multiple offenses within a single jurisdiction could be
treated differently for parole purposes than those whose offenses span multiple
jurisdictions).
In reviewing equal protection claims, courts have identified three
types of classifications of individuals: (1) classifications which implicate a
“suspect” class or a fundamental right; (2) “sensitive” classifications implicating
(continued . . .)
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV, § 1. Article I, Section 1 of the Pennsylvania Constitution provides:
All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
PA. CONST. art. I, § 1. Article I, Section 26 of the Pennsylvania Constitution provides:
Neither the Commonwealth nor any political subdivision thereof shall deny to any
person the enjoyment of any civil right, nor discriminate against any person in the
exercise of any civil right.
PA. CONST. art. I, § 26. Together, the above Pennsylvania constitutional provisions establish a
right to equal protection under the laws equivalent to that established in the United States
Constitution. Kramer v. Workers’ Compensation Appeal Board (Rite Aid Corp.), 883 A.2d 518,
532 (Pa. 2005).
9
an “important” but not a fundamental right; and (3) classifications that fall into
neither category. Classifications involving suspect classes, “such as race [and]
national origin,” are reviewed under a standard of strict scrutiny. Larsen v. Senate
of the Commonwealth of Pennsylvania, 154 F.3d 82, 93 n.16 (3d Cir. 1998).
“Sensitive” classifications, such as those based on gender and illegitimacy, receive
heightened review. Clark v. Jeter, 486 U.S. 456, 461 (1988). Classifications that
do not burden a fundamental or important right, or that do not involve a suspect or
sensitive classification, are permissible so long as they are rationally related to a
legitimate governmental interest. Small v. Horn, 722 A.2d 664, 672 (Pa. 1998).
As noted, Sharpe claims that he was treated differently than other
inmates in federal custody who were released to attend their state parole hearings.
Sharpe does not identify these other inmates or allege that they were similarly
situated to him in terms of the charges or sentences they were facing. Sharpe does
not allege that disparate treatment occurred based on race, national origin or any
other suspect classification. Simply, Sharpe offers no evidence that his right to
equal protection under the law was violated, and this claim lacks merit.
Sharpe’s final claim is that Attorney Hekking was ineffective because
he did not meet with Sharpe prior to the revocation hearing and was inebriated at
the hearing. In order to establish a right to relief due to ineffective assistance of
counsel, a parolee must show that: (1) counsel made errors of such a serious nature
that the parolee was denied the representation guaranteed by law; and (2) counsel’s
errors were so serious that it is reasonably probable that, but for those errors, the
outcome of the proceeding would have been different. Vereen v. Pennsylvania
Board of Probation and Parole, 515 A.2d 637, 640 (Pa. Cmwlth. 1986). Sharpe
fails to establish either element.
10
The transcript of the revocation hearing in no way suggests that
Attorney Hekking was inebriated or incapacitated. Sharpe voiced no concerns
about Hekking’s representation during the hearing. Rather, Sharpe spoke in detail
about his health, his family and the courses he completed in federal custody. There
is simply nothing on this record to support Sharpe’s charge. It is unfounded.
Sharpe’s claim of ineffective assistance of counsel lacks merit.
In sum, Counsel has fulfilled the technical requirements for
withdrawing his representation, and our independent review of the record before
the Board reveals that Sharpe’s issues on appeal all lack merit. Accordingly, we
grant Counsel’s application for leave to withdraw and affirm the Board’s decision.
______________________________
MARY HANNAH LEAVITT, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Sharpe, :
Petitioner :
:
v. : No. 885 C.D. 2014
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 14th day of September, 2015, the order of the
Pennsylvania Board of Probation and Parole, dated May 9, 2014, is AFFIRMED
and the application of Marc T. Valentine, Esquire, for leave to withdraw as counsel
is GRANTED.
______________________________
MARY HANNAH LEAVITT, Judge