D. Parks v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derrick Parks, :
Petitioner :
:
v. : No. 2349 C.D. 2014
: Submitted: September 11, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: October 16, 2015
Before this Court is a Petition for Leave to Withdraw with an attached
“Turner letter”1 by Special Assistant Public Defender for State Parole Matters for
Somerset County Marc T. Valentine (Counsel) as counsel for inmate Derrick Parks
1
A “Turner letter” is named after our Supreme Court’s decision in Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), where the Court held that counsel may instead provide a “no-
merit” letter rather than an Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) brief where
the right to counsel does not derive from the United States Constitution. The Turner letter must
detail “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.” Turner, 544 A.2d
at 928. Once that is done, the court must conduct its own review of whether the claim is
meritless. It was applied to applications to withdraw as counsel in parole cases by Epps v.
Pennsylvania Board of Probation and Parole, 565 A.2d 214 (Pa. Cmwlth. 1989).
(Parks) because his petition for review from an order of the Pennsylvania Board of
Probation and Parole (Board) has no factual or legal basis and is frivolous, along
with the Board’s application for remand to apply credit to Parks’ original sentence
and recalculate his maximum sentence.
On June 23, 1995, Parks was convicted of aggravated assault, with a
minimum sentence of 8.5 years and a maximum sentence of 20 years, and
convicted of criminal conspiracy and aggravated assault, with a minimum sentence
of 2 years to a maximum of 4 years. Parks’ minimum sentence date was set for
May 22, 2005, and his maximum sentence date was set for November 22, 2018.
Parks was also sentenced by the federal court for another crime and
was sentenced to serve 90 months, of which 66 months of that sentence was to run
concurrently with his state sentence and 24 months of the sentence to run
consecutively to that sentence.
On December 5, 2005, the Board determined that Parks should be
paroled on or after that date to a federal sentence detainer. On June 28, 2006,
Parks signed a notice that contained the conditions of parole, including but not
limited to, the conditions pertaining to conviction of a crime, and was released on
parole to the federal sentence detainer to serve in a federal institution the 24
months that had been imposed to run consecutively to his state sentence. On
March 25, 2008, Parks was paroled from the federal correctional institution to the
community.
2
On January 22, 2013, Parks was arrested for possession of a firearm
by a convicted felon. On February 5, 2013, the Board lodged a detainer against
Parks due to the new charges and he was taken into custody on March 14, 2013.
On February 25, 2014, Parks was sentenced to 57 months in a federal correctional
institution for possession of a firearm by a convicted felon. The Board held a
revocation hearing, and based on his federal conviction, did not give him any credit
against his original sentence for the time that he was on parole. The Board
calculated that he had still owed 12 years, 4 months and 25 days to serve against
his original sentence and ordered him to serve 18 months of back time. The Board
also informed Parks that his new minimum sentence date is August 25, 2015, and
the new maximum sentence date is July 22, 2026.
Parks filed a request for administrative relief contending the
imposition of 18 months of back time and the recalculation of the maximum date
were incorrect, alleging that he was not at liberty while on parole and not at liberty
while serving his federal sentence. On November 20, 2014, the Board denied
Parks’ petition for administrative relief, finding there to be sufficient evidence at
his parole violation hearing to recommit him. Furthermore, the Board explained
that it had the discretion to recommit Parks as a convicted parole violator pursuant
to Section 6138(a)(1) of the Prison and Parole Code, 61 Pa. C.S. §6138(a)(1),
because Parks committed the offense while on parole, and it was punishable by
imprisonment and resulted in convictions. Moreover, the Board noted that since it
chose to recommit Parks as a convicted parole violator, his original sentence had to
be recalculated to reflect that he had received no credit for the period he was at
liberty on parole pursuant to 61 Pa. C.S. §6138(a)(2).
3
After the Board denied Parks’ petition for administrative relief, Parks
filed a petition for review of the Board’s order with this Court contending that the
Board erred in calculating his back time owed and we appointed Counsel to
represent him in his appeal.2
After the appeal was filed, the Board filed an application for remand
to recalculate his original sentence because he did not receive credit on his original
sentence for the period that he was incarcerated from February 5, 2013, to April
22, 2013, which will change Parks’ maximum sentence date from July 22, 2026, to
May 7, 2026. On February 3, 2015, we entered an order that the Board’s
application for remand would be decided with the merits of the petition for review.
On May 14, 2015, Counsel filed an application to withdraw with an attached
Turner letter. We denied this request on May 19, 2015, stating that although
counsel's Turner letter covers the issues raised by Parks, it failed to address the
Board's concession in its application for remand that Parks is entitled to credit from
February 5, 2013, to April 22, 2013.
Counsel then filed his second petition for leave to withdraw with the
attendant Turner no-merit letter stating that after his review of the record and the
merits, Parks’ appeal was without merit and lacks legal and factual support.
2
Our scope of review is limited to a determination of whether necessary findings are
supported by substantial evidence, an error of law was committed, or whether constitutional
rights of the parolee were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704; Williams v. Pennsylvania Board of Probation and Parole, 654 A.2d 235 (Pa. Cmwlth.
1995).
4
In that letter, he addressed the Board’s application for remand by
merely stating that “The Respondent has conceded and requested a Remand for
time credit to the Petitioner from February, 2013 to April 22, 2013 and that
Remand should be granted.”
Counsel also sent a copy of the letter to Parks advising him that there
was no merit to his appeal and notifying him of the right to retain new counsel or
to raise any points which he may deem worthy of consideration in a pro se brief
that he could file with this Court.
Before we can allow court-appointed counsel to withdraw because an
appeal is frivolous, we must first examine whether the withdrawing counsel has:
(1) notified parolee of counsel’s request to withdraw; (2) furnished parolee with a
copy of an Anders brief3 or no-merit letter; and (3) advised parolee of his right to
retain new counsel or raise any new points that he might deem worthy of
consideration. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d
423 (Pa. Cmwlth. 1996). We also must insure that withdrawing counsel’s brief or
letter sets forth (1) the nature and extent of counsel’s review of the case; (2) the
issues the petitioner wishes to raise; and (3) counsel’s analysis concluding that the
appeal is frivolous. Jefferson v. Pennsylvania Board of Probation and Parole, 705
A.2d 513 (Pa. Cmwlth. 1998). Once we are satisfied that these technical
requirements are met, only then will we go on to make an independent evaluation
3
See Anders v. California, 386 U.S. 738 (1967). The brief that accompanies court-
appointed appellate counsel’s petition to withdraw from representation is commonly referred to
as an Anders brief.
5
of the proceedings before the Board to determine whether the petitioner’s appeal is
wholly frivolous – one that is completely devoid of points that might arguably
support an appeal – before we will allow counsel to withdraw. Id. Because
Counsel has complied with all of the notice provisions to Parks, the only technical
requirement we need to review is Counsel’s analysis of why the appeal is
frivolous.
We decline to grant Counsel’s application to withdraw because he still
has not adequately dealt with the Board’s application to remand the case to
recalculate Parks’ sentence. In response to our request to address this issue,
Counsel merely states “The Respondent has conceded and requested a Remand for
time credit to the Petitioner from February, 2013 to April 22, 2013 and that
Remand should be granted,” but without taking any action to insure that occurs. A
Turner letter’s purpose is to set forth why the appeal is frivolous and not to, in
effect, act as a motion that goes to the merits of the case. Once a motion is filed
asking for a remand to recalculate Parks’ maximum release date and that matter is
resolved, Counsel may again request to withdraw as counsel.
However, we note that in both Turner letters, Counsel has stated that
the issue raised in the petition for review that the Board failed to give Parks credit
for the “good time” credit he received while he was in federal custody was
frivolous because:
“Although he was not at liberty on parole while in federal
custody, Parks is not owed a good time credit for time
served while in federal custody. Section 9761 of the
Judicial Code, 42 Pa. C.S. §9761 is not included
6
provision [sic] for good time credit for time served while
in federal custody to be applied to a state sentence. In
Fordham v. Department of Corrections, 943 A.2d 1004,
1005 (Pa. Cmwlth. 2008), the Court found that an inmate
could receive 54 days of good time credit per year if a
federal sentence was being served concurrently with a
state sentence. There is no evidence in the record that
shows that Parks’ new federal conviction or his prior
federal conviction was to be served concurrently with his
state conviction. As a result, the Board properly
recalculated the back time owed. (Page 3 of Counsel’s
Turner Letter.)
In Fordham, we did not state that an inmate could receive “good
time” credit against his state sentence if the federal sentence was being served
concurrently with his state conviction. In fact, we held that an inmate could never
receive time credit for federal good time against a state sentence stating:
The United States government utilizes a determinate
sentencing scheme in which an inmate is sentenced to a
set number of years of imprisonment, often referred to as
a “flat” sentence. Commonwealth v. Kleinicke, 895 A.2d
562 (Pa. Super. 2006). Because the duration of an
inmate’s sentence is immediately determinable upon
sentencing, parole is unnecessary; but as a substitute, an
inmate may earn credit for good behavior to reduce the
overall length of his sentence. See 18 U.S.C. §3624(b).
In Pennsylvania, however, an indeterminate
sentencing scheme is employed wherein a sentencing
judge announces a range consisting of a minimum and
maximum sentence, Kleinicke, and only by serving time
may an inmate attain parole, if proper, at the end of his
minimum sentence. Unlike its federal counterpart, the
only statute in Pennsylvania governing the award of
credit for time served by an inmate after his state
sentence is imposed is Section 9761 of the Judicial Code,
42 Pa. C.S. §9761, and there is no mention in this statute
7
regarding the applicability of “good time” credit earned
elsewhere to a Pennsylvania sentence. Consequently, for
Fordham to meet his state minimum sentence, he has to
serve actual time--in this case, 10 years--and his federal
“good time” credit cannot count against his Pennsylvania
minimum sentence.
Fordham, 943 A.2d at 1006, 1007. We deny Counsel’s petition for leave to
withdraw without prejudice.
As mentioned, the Board has filed an application for remand to correct
Parks’ maximum sentence date by applying credit on Parks’ original sentence and
recalculating the maximum sentence. Accordingly, we grant the Board’s motion
and remand the matter to the Board for recalculation of Parks’ maximum sentence.
___________________________________
DAN PELLEGRINI, President Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derrick Parks, :
Petitioner :
:
v. : No. 2349 C.D. 2014
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 16th day of October, 2015, the application filed by
Marc T. Valentine, Esquire, for leave to withdraw as counsel is denied without
prejudice to file an amended petition to withdraw. The Pennsylvania Board of
Probation and Parole’s application for remand is granted and the matter is
remanded to the Board for recalculation of Derrick Parks’ sentence.
Jurisdiction relinquished.
___________________________________
DAN PELLEGRINI, President Judge