R.J. Smith v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard J. Smith, :
Petitioner :
:
v. : No. 10 C.D. 2020
: SUBMITTED: May 22, 2020
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 16, 2020
Petitioner Richard J. Smith (Smith) petitions for review of Respondent
Pennsylvania Board of Probation and Parole’s (Board) December 13, 2019 ruling.1
Therein, the Board dismissed as untimely Smith’s administrative challenges to two
Board-issued decisions, respectively dated April 6 and May 1, 2018. Because the
maximum date on Smith’s original sentence has already passed, we dismiss his
Petition for Review as moot. In addition, we grant Kent D. Watkins, Esquire’s
(Counsel) Application to Withdraw as Counsel (Application to Withdraw).
I. Facts and Procedural History
On February 13, 2017, Smith was paroled from three carceral sentences that
had been imposed by the Court of Common Pleas of York County. Certified Record
(C.R.) at 1. At that point, the maximum date on these sentences was March 29, 2019.
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§ 6101, 6111(a).
Id. On October 2, 2017, the Board declared Smith delinquent. Id. On December 30,
2017, Smith was arrested by the Pennsylvania State Police in Gettysburg,
Pennsylvania. Id. at 3. On April 6, 2018, the Board ordered Smith to be detained
pending resolution of the charges stemming from this arrest. The Board also ordered
Smith to serve 12 months of backtime as a technical parole violator (TPV). Id. at 3-
5.2
As a result of this arrest, Smith was convicted in the Court of Common Pleas
of Adams County of one count of unauthorized use of a motor or other vehicle. Id.
at 8. On March 22, 2018, the Court of Common Pleas of Adams County sentenced
Smith to serve one to six months in state prison for this crime. Id. at 7.3 On May 1,
2018, the Board ordered Smith to serve 12 months of backtime as a convicted parole
violator (CPV), concurrent with his TPV backtime. The Board declined to award
sentence credit for Smith’s time spent at liberty on parole, and recalculated the
maximum date on his original sentence as March 3, 2020. Id. at 8-9.
On July 8, 2019, Smith faxed an administrative remedies form to the Board,
asserting that the Board miscalculated the amount of backtime remaining on his
York County sentences. Id. at 10. On July 16, 2019, Smith mailed a second,
substantially similar administrative remedies form to the Board. Id. at 11-12. On
December 13, 2019, the Board dismissed Smith’s administrative appeals as
untimely. Id. at 13.
2
The Board rendered this decision on February 13, 2018, but did not mail it to Smith until
April 6, 2018. C.R. at 3-5.
3
The Certified Record does not shed light on why this sentence was served in state prison,
rather than a county-level facility. However, as this omission has no bearing on the outcome of
this appeal, we need not address it further.
2
On January 6, 2020, Counsel filed a Petition for Review with this Court on
Smith’s behalf, contending therein that the Board had failed to award the proper
amount of time credit towards Smith’s York County sentences. Petition for Review,
¶5. On February 11, 2020, the Board filed a “Motion To Limit The Issue Of
[Smith’s] Appeal Of His Recommitment/Recalculation Decisions To The Issue Of
Timeliness/Application For Stay” (Timeliness Motion). The Board asserted that
Smith failed to submit his administrative remedies forms within the legally
authorized time window. Accordingly, the Board sought a stay of its obligation to
file this matter’s Certified Record. Timeliness Motion, ¶¶5-10. Smith did not
respond to the Timeliness Motion. On February 27, 2020, this Court deemed the
Timeliness Motion unopposed and granted it.
On March 26, 2020, Counsel filed an Application to Withdraw and a Turner
letter.4 Counsel seeks leave to withdraw from representing Smith, because Smith’s
administrative remedies forms were untimely. Turner Letter at 2-3. Counsel explains
that, by law, the Board does not have jurisdiction to consider an administrative
4
In a Turner letter, an attorney seeks leave of court to withdraw from representing 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., Commonwealth 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, 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))];
Commonwealth 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).
3
remedies form that is submitted more than 30 days after the Board mails the decision
being challenged. Id. Because Smith submitted his administrative remedies forms
well beyond this 30-day window, Counsel concludes that the Board properly
dismissed them as untimely and that Smith’s Petition for Review “has no basis in
law or in fact and is, therefore, frivolous.” Id. at 2-4.
II. Discussion
Normally, we would embark upon a review of the relevant facts and law in
order to determine whether Counsel’s Application to Withdraw is technically
sufficient, as well as whether Smith’s arguments are meritorious. See Zerby v.
Shanon, 964 A.2d 956, 958-60 (Pa. Cmwlth. 2009). Here, however, such a review is
not necessary because the maximum date for Smith’s York County sentences has
already passed. “[T]he expiration of a parolee’s maximum term renders an appeal of
a Board revocation order moot. It is well settled that an appeal will be dismissed
when the occurrence of an event renders it impossible for the court to grant the
requested relief.” Taylor v. Pa. Bd. of Prob. & Parole, 746 A.2d 671, 674 (Pa.
Cmwlth. 2000) (citations omitted). We will refuse to dismiss a moot appeal “only if
the issues involved are capable of repetition yet likely to evade review and of
important public interest, or where a party will suffer some detriment without [our]
court’s decision.” Id.
Here, the maximum date on Smith’s York County sentence was March 3,
2020, and he has already completed the full term of that sentence at this point.
Though the issues raised by Smith, relating to the Board’s backtime calculations, are
capable of repetition by other petitioners in other matters, they are unlikely to escape
review in the future, as shown through numerous other appeals from Board decisions
which this Court has substantively addressed over the years. Nor will Smith suffer
4
without our assistance because, as we have already noted, he has finished serving
the sentence that gave rise to these issues.
III. Conclusion
Therefore, on the basis of the foregoing discussion, we dismiss Petitioner’s
Petition for Review as moot and grant Counsel’s Application to Withdraw.5
__________________________________
ELLEN CEISLER, Judge
5
We would have ruled against Smith even in the absence of mootness, due to his
untimeliness of his administrative remedies forms. See 37 Pa. Code § 73.1(a)(1), (b)(1)
(administrative appeals and petitions for administrative review pertaining to a Board decision must
be submitted to the Board within 30 days of the challenged decision’s mailing date).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard J. Smith, :
Petitioner :
:
v. : No. 10 C.D. 2020
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 16th day of July, 2020, Petitioner Richard J. Smith’s Petition
for Review is DISMISSED AS MOOT. Furthermore, Kent D. Watkins, Esquire’s
Application to Withdraw as Counsel is GRANTED.
__________________________________
ELLEN CEISLER, Judge