M. Smith v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Smith, :
Petitioner :
:
v. : No. 1320 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent : Submitted: July 22, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: September 21, 2022
Petitioner Mark Smith (Smith) petitions for review of Respondent
Pennsylvania Parole Board’s (Board) October 20, 2021 order, in which the Board
dismissed as untimely Smith’s administrative challenge regarding the Board’s May
12, 2017 decision to revoke Smith’s parole and recommit him as a convicted parole
violator (CPV). In addition, Meghann E. Mikluscak, Esquire, Smith’s court-
appointed counsel (Counsel), has submitted an Application for Leave to Withdraw
Appearance (Application), along with a no-merit letter,1 through which Counsel
1
Through this type of letter, an attorney seeks to withdraw from representation of a parole
violator because “the [violator’s] case lacks merit, even if it is not so anemic as to be deemed
wholly frivolous.” Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).
Such letters are referred to by various names by courts of this
Commonwealth. See, e.g., Com[.] v. Porter, . . . 728 A.2d 890, 893
& n.2 ([Pa.] 1999) (referring to such a letter as a “‘no[-]merit’ letter”
and noting that such a letter is also commonly referred to as a
“Finley letter,” referring to the Superior Court case Commonwealth
v. Finley, . . . 479 A.2d 568 ([Pa. Super.] 1984)); Zerby v. Shanon,
(Footnote continued on next page…)
asserts that Smith’s administrative challenge was both untimely and substantively
without merit. After thorough consideration, we grant Counsel’s Application and
affirm the Board’s order.
I. Background
On March 24, 2004, after Smith was found guilty of one count each of robbery
and carrying a firearm without a license, the Court of Common Pleas of Philadelphia
County (Common Pleas) sentenced him to an aggregate carceral term of 69 to 138
months in state prison. Certified Record (C.R.) at 1-2. Smith was subsequently
paroled on September 21, 2009, at which point the maximum date on his March 2004
sentence was November 6, 2014. Id. at 6-9. Smith subsequently committed multiple
violations of his parole terms, which resulted in the Board recommitting him as a
technical parole violator on September 12, 2011, to serve 9 months of backtime and
recalculating the maximum date on his March 2004 sentence as July 11, 2016. Id. at
51-54. On May 21, 2012, Smith was again released on parole. Id. at 55-57.
Thereafter on April 18, 2014, Smith was arrested in Philadelphia,
Pennsylvania, and was charged with burglary, criminal trespass, knowing and
intentional possession of a controlled substance, possession of an instrument of
crime, recklessly endangering another person, robbery, terroristic threats, theft by
receiving stolen property, theft by unlawful taking, and simple assault. Id. at 63. On
February 14, 2017, Smith pled guilty to criminal trespass, possession of an
instrument of crime, and robbery, and was sentenced by Common Pleas to an
964 A.2d 956, 960 (Pa. Cmwlth. 2009) (“Turner letter”)[, referring
to the Pennsylvania Supreme Court case Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988)]; Com[.] v. Blackwell, 936 A.2d 497, 499
(Pa. Super. 2007) (“Turner/Finley letter”).
Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 n.2 (Pa. Cmwlth. 2009).
2
aggregate carceral term of 78 to 180 months in state prison. Id. at 130, 148-49. Smith
subsequently waived his right to have a parole revocation hearing before the Board,
as well as to counsel at that hearing, and admitted to the veracity of these convictions.
Id. at 130-34. In response, the Board issued its May 12, 2017 decision, through which
it ordered Smith to be committed as a CPV to serve the remaining balance of his
March 2004 sentence, which the Board stated was 2 years, 2 months, and 16 days,2
and recalculated his maximum date as July 4, 2019. Id. at 190-91.
Smith did not respond to this decision until September 10, 2020, when he
mailed a letter to the Board.3 Therein, Smith stated that he believed there was a
“discrepancy” regarding how the time he had served since 2014 had been divvied up
between his two sentences and asked the Board to send him a detailed breakdown of
precisely how this time had been allocated. Id. at 193. On October 20, 2021, the
Board replied by providing Smith with a copy of the order to recommit that pertained
to its May 12, 2017 decision and informing him that he would need to request his
sentence status summary from the Department of Corrections. Id. at 197. In addition,
the Board dismissed Smith’s September 10, 2020 letter as untimely, to the extent
this letter constituted an administrative challenge to the Board’s May 12, 2017
decision. Id. at 197-98.
2
The Board arrived at this number by revoking Smith’s credit for 64 days of street time,
from September 21, 2009, through November 24, 2009, and giving him 769 days of credit, from
June 3, 2014, through July 11, 2016, for a period during which he was held pending disposition of
the charges that had prompted his April 2014 arrest. See C.R. at 189.
3
“Under the prisoner mailbox rule, a legal document is deemed ‘filed’ on the date it is
delivered to the proper prison authority or deposited in the prison mailbox.” Kittrell v. Watson, 88
A.3d 1091, 1097 (Pa. Cmwlth. 2014). Here, the Certified Record reflects that Smith’s letter to the
Board was postmarked on September 10, 2020. See C.R. at 196.
3
On November 22, 2021, Smith sent his pro se Petition for Review to our
Court, along with an application to proceed in forma pauperis. In his Petition for
Review, Smith argued that the Board had erroneously concluded that his September
10, 2020 letter was untimely, as well as that the Board had improperly recalculated
the maximum date on his March 2004 sentence. Pet. for Review ¶¶5-16.
Thereafter, on December 6, 2021, we appointed the Public Defender of
Fayette County to represent Smith in this matter and, on January 14, 2022, directed
the parties to address whether Smith had filed his Petition for Review in a timely
manner. Counsel then entered her appearance on February 11, 2022, and followed
on February 22, 2022, with her Application and no-merit letter, through which she
requested leave to withdraw from representing Smith in this matter. Therein,
Counsel stated that she “ha[d] conducted a full and conscientious examination of the
record certified to this Honorable Court by the . . . Board and ha[d] concluded that
there is no factual or legal basis for . . . Smith’s appeal, and that said appeal is
frivolous[.]” Application ¶5; see No-Merit Letter at 1-2. Counsel explained that this
was so because she agreed with the Board that Smith’s September 10, 2020 letter
was untimely, insofar as it constituted an administrative challenge to the Board’s
May 12, 2017 decision, and had determined that the Board had properly recalculated
the maximum date on Smith’s March 2004 sentence. Application ¶5.k-.1; No Merit
Letter at 1-2. Counsel also advised Smith, in writing, that she believed Smith’s
arguments to be without merit and directed him to retain another attorney, or file a
pro se brief with our Court, in the event he disagreed with Counsel’s conclusions.
No-Merit Letter at 2.
4
II. Discussion
Before we can address the validity of Smith’s arguments, we must assess the
adequacy of Counsel’s no-merit letter. Throughout this process, Smith has only
sought to challenge the Board’s determination that his September 10, 2020 letter was
an untimely administrative challenge to its May 12, 2017 decision, as well as the
Board’s calculation of the maximum date for his March 2004 sentence. For this
reason, Counsel appropriately elected to file a no-merit letter in this matter. See
Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 n.4 (Pa. Cmwlth. 2010).
“A no-merit letter must include an explanation of ‘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.’” Id. at 43 (quoting Turner, 544 A.2d
at 928) (brackets omitted).4 As long as a no-merit letter satisfies these basic
requirements, we may then review the soundness of a petitioner's request for relief.
Zerby, 964 A.2d at 960. However, in the event the letter fails on technical grounds,
we must deny the request for leave to withdraw, without delving into the substance
of the underlying petition for review, and may direct counsel to file either an
amended request for leave to withdraw or a brief on behalf of their client. Id.Counsel’s no-merit letter satisfies the aforementioned technical requirements.
It contains a recitation of the relevant factual and procedural history, a discussion of
the arguments raised by Smith, and a thorough explanation, backed with legal
analysis, regarding Counsel’s conclusion that none of Smith’s arguments establish a
legally valid basis for relief. No-Merit Letter at 1-2. Furthermore, Counsel has
4
Counsel must also “notify the parolee of his 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.” Stroud v. Pa. Bd. of Prob. &
Parole, 196 A.3d 667, 670 (Pa. Cmwlth. 2018).
5
appropriately provided Smith with copies of her Application and no-merit letter,
notified him of her intention to withdraw from this matter, and informed Smith of
his right to hire another lawyer to represent him in this matter or to represent himself
pro se. Id. at 2, Certificate of Service; Motion to Withdraw ¶9, Certificate of Service.
Under normal circumstances, we would now move on to considering the
substantive merits of Smith’s Petition for Review. However, we need not do so here,
due to the jurisdictional problem created by the untimeliness of Smith’s September
10, 2020 letter to the Board.5 By law, a prisoner who wishes to challenge a parole
revocation decision must do so by filing their administrative remedies form with the
Board no later than 30 days after that decision’s mailing date. See 61 Pa. C.S. §
6113(d); 37 Pa. Code § 73.1(a)(1), (b)(1). “This time period is jurisdictional and
cannot be extended absent a showing of fraud or a breakdown of the administrative
process.” Smith v. Pa. Bd. of Prob. & Parole, 81 A.3d 1091, 1094 (Pa. Cmwlth.
2013). “Where a prisoner fails to meet this deadline, this court has held that the
Board has no jurisdiction to entertain the appeal and should dismiss it as untimely.”
McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993).
Here, Smith sent his letter to the Board nearly 41 months after it had issued its May
12, 2017 decision, well after the administrative appeal window had closed. In doing
so, Smith provided no explanation to the Board for why he had waited so long to
respond to its decision; rather, he merely indicated that he believed that a
“discrepancy” existed with regard to how his credit for time served since 2014 had
5
We note that Counsel neglected to address whether Smith’s Petition for Review was filed
with this Court in a timely manner, despite the fact that we expressly directed her to do so through
our January 14, 2022 order. Nevertheless, Counsel’s failure to comply does not impede us from
disposing of this appeal on the above-mentioned basis, as the question of whether Smith’s Petition
for Review was filed within the 30-day appeal window has no bearing on whether Smith’s
September 10, 2020 letter to the Board was itself timely.
6
been treated and asked the Board for information regarding how that credit had been
allocated between his March 2004 and February 2017 sentences. See id. at 193. As
such, the Board properly deemed Smith’s September 10, 2020 letter to be untimely,
to the extent this letter could be considered an administrative challenge to its May
12, 2017 decision, and correctly dismissed the letter on that basis.
III. Conclusion
In accordance with the foregoing analysis, we affirm the Board’s October 20,
2021 order and, in addition, grant Counsel’s Application.6
____________________________
ELLEN CEISLER, Judge
6
Despite this outcome, we are compelled to point out that the Board, through its May 12,
2017 decision, unlawfully revoked 64 days of street time credit that the Board had previously given
Smith when it recommitted him as a technical parole violator in 2011. See C.R. at 51-53, 189. This
was improper, because the Board cannot reach back into previous parole periods to retroactively
strip an individual of such time credit. See Penjuke v. Pa. Bd. of Prob. & Parole, 203 A.3d 401(Pa. Cmwlth. 2019). We have no jurisdiction to remedy the Board’s mistake, because Smith failed
to administratively challenge the Board’s May 12, 2017 decision in a timely way.
We note, however, that the Board has inherent authority to “correct typographical, clerical,
and mechanical errors obviated and supported by the record. It may likewise correct factual errors
which are not in dispute, and indeed even factual misconceptions.” Kentucky Fried Chicken of
Altoona, Inc. v. Unemployment Comp. Bd. of Rev., 309 A.2d 165, 167 (Pa. Cmwlth. 1973). As
such, the Board can, and should, act on its own motion to correct obvious errors that exist in a
decision it has issued, even if, as in Smith’s situation, the affected inmate did not file a timely
administrative remedies form and, thus, gave up their ability to challenge that decision.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Smith, :
Petitioner :
:
v. : No. 1320 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 21st day of September, 2022, it is hereby ORDERED that
Respondent Pennsylvania Parole Board’s October 20, 2021 order is AFFIRMED. It
is FURTHER ORDERED that Meghann E. Mikluscak, Esquire’s Application for
Leave to Withdraw Appearance is GRANTED.
____________________________
ELLEN CEISLER, Judge