S.C. Morrison v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven C. Morrison, :
Petitioner :
:
v. : No. 655 C.D. 2020
: SUBMITTED: November 20, 2020
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: March 1, 2021
Petitioner Steven C. Morrison (Morrison) petitions for review of Respondent
Pennsylvania Parole Board’s (Board) June 22, 2020 order. Therein, the Board
affirmed its recalculation of Morrison’s maximum sentence date based on his parole
violations. Morrison’s counsel, David Crowley, Esquire (Counsel), has submitted an
Application to Withdraw as Counsel (Application to Withdraw), along with a Turner
letter.2 Counsel contends the arguments raised by Morrison are frivolous and
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
The term “Turner letter” refers to the seminal case Commonwealth v. Turner, in which our
Supreme Court “set forth the appropriate procedures for the withdrawal of court-appointed counsel
in collateral attacks on criminal convictions.” 544 A.2d 927, 927-29 (Pa. 1988). In a Turner letter
pertaining to a parole violation matter, an attorney seeks leave of court to withdraw representation
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”
without merit. Upon review, we grant Counsel’s Application to Withdraw and affirm
the Board’s order.
I. Facts and Procedural History
In April 2012, Morrison was arrested in Berks County and was charged with
a number of drug-related offenses.3 Morrison subsequently pled guilty in the Court
of Common Pleas of Berks County (Common Pleas) to one count of possession with
intent to deliver and, on April 25, 2013, Common Pleas sentenced him to 21 to 60
months in state prison, while also giving him credit for 434 days he spent in pre-
sentence detainment.
On February 1, 2017, Morrison was paroled on this sentence from State
Correctional Institution – Mahanoy. Certified Record (C.R.) at 6. At that time, he
had a maximum sentence date of June 30, 2018, leaving him with 514 days
remaining on his original sentence. Id. On September 5, 2017, Morrison was
arrested by the Wyomissing Police Department and charged with four counts of
promoting prostitution and one count of possession of a controlled substance. Id. at
11-16. Morrison was detained in lieu of $50,000 bail for those charges. Id. at 18.
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[, 573] ([Pa. Super.] 1984)); Zerby v.
Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (“Turner letter”);
Com[.] v. Blackwell, 936 A.2d 497[, 499 n.5] (Pa. Super.[] 2007)
(“Turner/Finley letter”).
Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 24 n.2 (Pa. Cmwlth. 2009).
3
Some of the facts pertaining to Morrison’s April 2012 arrest, subsequent plea, and sentencing are
drawn from relevant criminal records, which can be found under Court of Common Pleas of Berks
County docket number CP-06-CR-0002610-2012. We are permitted to take judicial notice of this
information. See, e.g., Pa. R.E. 201(b)(2); Doxsey v. Pa. Bureau of Corr., 674 A.2d 1173, 1174
(Pa. Cmwlth. 1996).
2
The Board issued a warrant to commit and detain Morrison on the same day. Id. at
10. The Board’s September 5, 2017 detainer was lifted on June 30, 2018, when
Morrison reached his original maximum date.4 Id. at 33. Morrison posted bail on
his new criminal charges on July 3, 2018. Id. at 52.
On February 5, 2019, Morrison was found guilty on the new criminal charges
in Common Pleas, and his bail was revoked. Id. at 38. The Board re-lodged its
detainer on February 8, 2019. Id. at 39. On March 21, 2019, Common Pleas
sentenced Morrison to an aggregate carceral term of 18 months to 36 months in state
prison for 2 of the prostitution counts, with 347 days of credit for time served. Id. at
40-41. Common Pleas also sentenced Morrison to an aggregate term of 12 to 24
months’ incarceration for the remaining prostitution counts, to be served
concurrently after the expiration of the longer sentences. Id. at 42, 44. Finally,
Common Pleas sentenced Morrison to two years of probation for the possession
count. Id. at 43.
By decision recorded on April 17, 2019, the Board recommitted Morrison as
a convicted parole violator. Id. at 91. The Board did not award Morrison credit for
the time spent at liberty on parole because of his “prior history of supervision
failures.” Id. at 92. The Board recalculated Morrison’s maximum sentence date as
September 4, 2020, reasoning that Morrison had 514 unserved days when he was
paroled and was not able to serve any of this time until April 9, 2019. Id. at 91-93.
There is no proof in the record that Morrison administratively challenged this
4
On July 2, 2018, the Board declared Morrison delinquent for control purposes effective July 7,
2017. C.R. at 34.
3
decision. On July 9, 2019,5 the Board modified its April 17, 2019 decision to correct
a typographical error, in order to reflect that Morrison’s correct recommitment
period was 1 year, 4 months, and 29 days, rather than 1 year, 4 days, and 29 days, as
had been previously stated by the Board. Id. at 100.
On July 15, 2019,6 Morrison, through Counsel, filed a petition for
administrative review, in which he contended that the Board had failed to award the
proper amount of time credit and, consequently, miscalculated his maximum date.
Id. at 103-04. Morrison also claimed that the Board, through this allegedly improper
calculation, unconstitutionally enlarged the carceral sentence that had been imposed
upon him in April 2013. Id. In this petition, Morrison checked the box for “Sentence
Credit Challenge.” See id. The Board denied this petition on June 22, 2020,
explaining that Morrison was not entitled to credit for the time spent at liberty on
parole or pre-sentence credit because he had not been detained solely on the Board’s
warrant before sentencing. Id. at 109.
On July 10, 2020, Counsel filed a Petition for Review with this Court on
Morrison’s behalf. Therein, Morrison challenges the Board’s Order dated June 22,
5
The Board’s April 17, 2019 and July 9, 2019 decisions are substantively identical in all other
ways. C.R. at 91-93, 100. It is well settled that “administrative agencies have the inherent authority
to correct obvious typographical and clerical errors.” Bruno v. Zoning Bd. of Adjustment of Phila.,
664 A.2d 1077, 1079 (Pa. Cmwlth. 1995). Because the only real difference between the Board’s
two decisions was the correction of a typographical error, the alteration did not materially change
the terms of the Board’s recommitment of Morrison.
6
The record reflects that the Board’s April 17, 2019 decision was not delivered to Morrison until
July 3, 2019. C.R. at 91, 109. Thus, although Morrison’s July 15, 2019 appeal was not filed within
30 days of the Board’s decision, it was filed within 30 days from the day Morrison actually
received notice of the decision. Based on the principles outlined in Lewis v. Pennsylvania Board
of Probation and Parole, 508 A.2d 644 (Pa. Cmwlth. 1986) and Moore v. Pennsylvania Board of
Probation and Parole, 503 A.2d 1099 (Pa. Cmwlth. 1986), we conclude that Morrison’s
administrative appeal was timely and will address this matter on the merits.
4
2020, arguing that the Board lacked sufficient evidence for its factual findings,
violated its own regulations, and violated his due process rights under the United
States and Pennsylvania Constitutions, because “the Board failed to credit
[Morrison’s April 2013] sentence with all the time to which he is entitled.” Pet. for
Review, ¶¶ 5-6.
On September 24, 2020, Counsel filed an Application to Withdraw and a
Turner letter. Counsel seeks leave to withdraw from representing Morrison because
Morrison’s appeal is without merit. Counsel explains that, after review, he has
determined that the Board did not err in recalculating Morrison’s maximum sentence
date as September 4, 2020. Turner Letter at 4-7. Counsel further concludes that there
is no factual or legal basis to support Morrison’s argument that this recalculated
maximum date would cause Morrison to serve more time than originally imposed
by the sentencing court. Turner Letter at 8.
II. Discussion
Preliminarily, we again note that the recalculated maximum date on
Morrison’s April 2013 sentence was September 4, 2020. Therefore, it appears that
Morrison has already completed the full term of that sentence. As this Court has
held, “the 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.
5
 Currently, Morrison is still incarcerated within our Commonwealth’s prison
system at State Correctional Institution – Benner Township. See Inmate Locator, PA.
DEP’T OF CORR., http://inmatelocator.cor.pa.gov (last visited February 18, 2021). By
law, Morrison was required to complete the backtime imposed by the Board
pertaining to his original April 2013 sentence before starting to serve his more recent
March 2019 sentence. See 61 Pa. C.S. § 6138(a)(5)(i). However, if Morrison’s
claims are true (i.e., the Board failed to credit the correct amount of time towards his
April 2013 sentence and unconstitutionally extended his judicially imposed
sentence), then it is possible that the Board may have erroneously impeded his ability
to start serving his March 2019 sentence and, thus, improperly delayed his ultimate
release from state custody. Consequently, we find that Morrison may “suffer some
detriment without [our] court’s decision.” Taylor, 746 A.2d at 674. For this reason,
we find that Morrison’s arguments would thus, under other circumstances, be
reviewable under an exception to the mootness doctrine.
Before addressing the validity of Morrison’s substantive arguments, we must
assess the adequacy of Counsel’s Turner letter. Throughout this process, Morrison
has only sought to challenge the Board’s recalculation of his maximum date. For this
reason, Counsel appropriately elected to file a Turner letter.7 A Turner 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.’” Seilhamer, 996 A.2d at 43 (quoting Turner, 544 A.2d at
7
Pursuant to Anders v. California, 386 U.S. 738 (1967), counsel must file what is known as an
Anders brief when seeking to withdraw from representation in certain circumstances. See Com. v.
Santiago, 978 A.2d 349, 353-55 (Pa. 2009). An Anders brief was unnecessary in this matter,
however, because none of Morrison’s claims implicated his constitutional right to counsel. See
Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 n.4 (Pa. Cmwlth. 2010).
6
928). As long as counsel’s Turner letter satisfies these basic requirements, we may
then review the soundness of a petitioner’s request for relief. Zerby, 964 A.2d at 960.
If, however, 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 Turner letter satisfies these technical requirements. It contains a
recitation of the relevant factual and procedural history, discussions of each
argument raised by Morrison, and a thorough explanation, backed by case and
statutory law, regarding Counsel’s conclusion that none of these arguments afford
Morrison a valid basis for relief. Further, Counsel has appropriately provided
Morrison with copies of these documents, notified Morrison about Counsel’s
intentions, and informed Morrison of his right to hire another lawyer to represent
him in this matter or to represent himself pro se. Consequently, we will proceed to
an independent examination of the Petition for Review, in order to determine
whether any of Morrison’s claims are meritorious.8
Morrison’s first argument, that the Board erred in recalculating his maximum
date, is without merit. As already noted, Morrison was reparoled on February 1,
2017. At that point, the maximum date on his sentence was June 30, 2018. The
remaining unserved time on Morrison’s original sentence when he was paroled was
thus 514 days. The Board revoked Morrison’s parole and recommitted him as a
convicted parole violator on April 9, 2019. It is well settled that where the Board
8
Under Section 704 of the Administrative Agency Law, our standard of review in this
matter is limited to determining whether the Board violated Morrison’s constitutional rights,
committed an error of law, or made findings of fact that were not supported by substantial
evidence. 2 Pa. C.S. § 704.
7
recommits a convicted parole violator to serve the balance of his original sentence,
the backtime must be computed from the revocation date. Campbell v. Pa. Bd. of
Prob. & Parole, 409 A.2d 980, 982 (Pa. Cmwlth. 1980). Adding 514 days to April
9, 2019, results in a new maximum date of September 4, 2020. We agree with
Counsel that the Board did not err in making this calculation.
Next, Counsel concludes that Morrison was not entitled to credit towards his
new sentence for pre-sentence confinement time. When a parole violator is held
solely on the Board’s detainer, credit for that time must be applied to the individual’s
original sentence, but when that individual is held both on the Board’s detainer and
pending disposition of new charges, credit for that time must be applied towards any
sentence stemming from those newer charges. Gaito v. Pa. Bd. of Prob. & Parole,
412 A.2d 568, 571 (Pa. 1980).9 Here, Morrison was never held solely on the Board’s
detainer and, therefore, was not entitled to pre-sentence credit.
Finally, Counsel notes that the Board explicitly declined to award Morrison
credit for street time and explained its reasons for doing so. We agree with Counsel
that Morrison was not entitled to credit for time spent at liberty on parole. Pursuant
to Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2.1),
the Board has the discretion to grant credit to a convicted parole violator for time
spent at liberty on parole, except in a handful of circumstances that do not apply
here. Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466 (Pa. 2017). However, the
9
The only exceptions to this rule are where the individual is acquitted of the new charges
or no new sentence is imposed, and where the time spent in pre-sentence custody exceeds the
length of the new sentence. Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299, 306 (Pa. 2003);
Gaito. In the former situation, all credit for time held in pre-sentence detention must be applied
towards the individual’s original sentence, while in the latter situation, only the excess time may
be credited towards his original sentence. Martin; Gaito. These exceptions are not relevant to this
matter.
8
Board must provide an adequate explanation when it declines to make such an
award.
Here, the Board gave its reasons for denying Morrison street time. In its April
9, 2019 hearing report, the Board recommended that credit not be given, citing “the
serious nature of [Morrison’s parole] [v]iolation” and his “poor supervision
history[.]” C.R. at 68. In its April 17, 2019 decision, the Board stated it was denying
credit, in its discretion, for the time spent at liberty on parole, because of Morrison’s
“prior history of supervision failures.” Id. at 92. These statements satisfied the
Board’s Pittman duties. See Hughes v. Pa. Bd. of Prob. & Parole, 179 A.3d 117 (Pa.
Cmwlth. 2018).
III. Conclusion
In accordance with the foregoing analysis, we grant Counsel’s Application to
Withdraw and affirm the Board’s June 22, 2020 order.
__________________________________
ELLEN CEISLER, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven C. Morrison, :
Petitioner :
:
v. : No. 655 C.D. 2020
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 1st day of March, 2021, David Crowley, Esquire’s
Application to Withdraw Appearance is GRANTED, and the June 22, 2020 order of
the Pennsylvania Parole Board is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge