R.A. Midgley v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert A. Midgley, :
Petitioner :
:
v. : No. 59 C.D. 2021
: Submitted: February 18, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: April 1, 2022
Petitioner Robert A. Midgley (Midgley) petitions for review of Respondent
Pennsylvania Parole Board’s (Board) December 30, 2020 order, through which the
Board affirmed its March 15, 2019 decision to recommit him to serve a total of 12
months of backtime, recalculate the maximum date on his carceral sentence, and
award him no credit for time served at liberty on parole. Midgley’s counsel, Sarah
Beth Stigerwalt-Egan, Esquire (Counsel), has submitted an Application to Withdraw
as Counsel (Application to Withdraw) along with an Anders brief,1 through which
she contends that arguments raised by Midgley in his Petition for Review are
frivolous and without merit. After thorough consideration, we deny Counsel’s
Application to Withdraw without prejudice and direct her to file either a proper,
1
Pursuant to Anders v. California, 386 U.S. 738 (1967), court-appointed 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).
amended Application to Withdraw and no-merit letter, or an advocate’s brief in
support of Midgley’s Petition for Review, within 30 days.
I. Background
On August 5, 2015, after pleading guilty to one count of driving under the
influence, Midgley was sentenced in the Court of Common Pleas of the 39th Judicial
District, Franklin County Branch (Trial Court) to a term of one to five years in state
prison. Certified Record (C.R.) at 1. The Board then paroled Midgley on August 8,
2016, at which point the maximum date on his August 2015 sentence was August 5,
2020, reflecting that Midgley had 1,458 unserved days left on that sentence. Id. at 4-
7. Thereafter, on February 15, 2018, Midgley tested positive for THC during a
routine parole supervision drug screening procedure, prompting the Board to issue a
detainer and take him into custody that same day. Id. at 11-12, 22.2 Midgley was
subsequently charged with indecent exposure on February 22, 2018, which stemmed
from an incident in Chambersburg, Pennsylvania, on February 13, 2018, during
which he was discovered while masturbating in public at a local library. Id. at 19-
20, 24-27. On March 28, 2018, Midgley pled guilty to the indecent exposure charge
and was sentenced by the Trial Court to 6 to 12 months in state prison. Id. at 66, 75-
79.
The Board then issued a series of decisions that addressed both Midgley’s
positive drug test and his criminal conviction. On May 16, 2018, the Board
recommitted Midgley as a technical parole violator (TPV) on account of his positive
2
THC, or tetrahydrocannabinol, “is the substance [that is] primarily responsible for the
effects of marijuana on a person’s mental state.” Cannabis (Marijuana) and Cannabinoids: What
You Need To Know, NATIONAL CENTER FOR COMPLEMENTARY AND INTEGRATIVE HEALTH
(November 2019), https://www.nccih.nih.gov/health/cannabis-marijuana-and-cannabinoids-what-
you-need-to-know (last visited March 31, 2022). Tetrahydrocannabinol is a Schedule I controlled
substance under Pennsylvania law. See 28 Pa. Code § 25.72(b)(3)(xvi).
2
drug test and ordered that he serve six months of backtime, with an automatic
reparole date of August 15, 2018. Id. at 38-40. On July 2, 2018, the Board modified
its May 16, 2018 decision by deleting the automatic reparole provision and
recommitting Midgley to serve 12 months of backtime as a convicted parole violator,
due to his guilty plea, to be served concurrently with the previously imposed 6
months of TPV backtime “when available pending parole from (or completion of)
[his March 2018 sentence].” Id. at 70-71. Finally, on March 15, 2019, the Board
reiterated its backtime recommitment determination, declined to award Midgley any
credit for time served at liberty on parole, and recalculated the maximum date on his
August 2015 sentence as March 7, 2022.3 Id. at 82-83. Confusingly, however, the
Board’s Order to Recommit, dated March 14, 2019, states that Midgley’s “prior
parole liberty forfeited” was “0” days and, without explanation, awards him 18 days
of backtime credit for the time period between February 15, 2018, and March 5,
2018. Id. at 80-81.
In response, Midgley challenged two of these decisions before the Board.
First, in July 2018, Midgley administratively appealed the Board’s July 2, 2018
decision, in which he argued that the Board’s parole “hit” exceeded the time
remaining on his August 2015 sentence. Id. at 87-88. The Board denied this
administrative appeal on March 27, 2019. Id. at 90. Subsequently, on April 8, 2019,
Midgley submitted a second administrative appeal, this one regarding the Board’s
March 15, 2019 decision. Therein, he stated that he wished “to request leniency in
the Board’s decision not to award credit . . . for the time served at liberty on parole
due to the mental capacity of offender during commission of crime resulting in
3
The Board arrived at this recalculation by using March 28, 2018, as the date of Midgley’s
“custody for return” and then adding 1,440 days to that date. See C.R. at 80-81.
3
parole violation.” Id. at 91-92. The Board denied Midgley’s second administrative
appeal on December 30, 2020. Id. at 94-95.
Midgley then filed his pro se Petition for Review with our Court on January
12, 2021, regarding the Board’s December 30, 2020 order. In his Petition for
Review, Midgley argued that the Board had unlawfully revoked credit for time
served at liberty on parole that it had previously awarded him and had extended his
August 15, 2015 sentence in violation of the Pennsylvania Constitution’s and United
States Constitution’s prohibitions against double jeopardy and cruel and unusual
punishment. Pet. for Rev. ¶¶10-11. On February 26, 2021, we appointed the
Northumberland County Office of the Public Defender to represent Midgley in this
matter. Order, 2/26/21, at 1-2. Counsel entered her appearance on Midgley’s behalf
on August 10, 2021, and then filed her Application to Withdraw and Anders brief on
October 13, 2021.
II. Discussion
Technical Sufficiency of Counsel’s Anders Brief
Before addressing the validity of Midgley’s substantive arguments, we must
assess the adequacy of Counsel’s Anders brief. Throughout this process, Midgley
has only sought to challenge the Board’s handling of his time served at liberty on
parole, as well as the Board’s alleged violations of his due process rights and the
constitutional prohibition upon cruel and unusual punishment. Counsel therefore did
not need to file an Anders brief in this matter, as none of Midgley’ 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).4 Rather, a no-merit letter would have been more
4
A constitutional right to counsel arises when the petitioner presents
a[] colorable claim (i) that he has not committed the alleged
(Footnote continued on next page…)
4
appropriate. Through a no-merit letter, appointed counsel seeks to withdraw from
representation because “the [petitioner’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). “[W]e will not deny an application to withdraw simply because an attorney
has filed an Anders brief where a no-merit letter would suffice”; instead, we evaluate
the Anders brief as if it was a no-merit letter. Hughes, 977 A.2d at 26 n.4. “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.’” Seilhamer, 996 A.2d at 43 (quoting Com. v.
Turner, 544 A.2d 927, 928 (Pa. 1988)) (some alterations omitted). 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 v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth.
2009). However, if 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. Furthermore, it is of critical import
to this analysis that
[t]he process of a court-appointed attorney seeking leave
to withdraw from [this kind of] case . . . happens after a
petition for review is filed, but before the petitioner
submits an appellate brief. Therefore, given that a court-
appointed attorney must address all issues raised by their
client before a court can determine whether to grant
violation of the conditions upon which he is at liberty; or (ii) that,
even if the violation is a matter of public record or is uncontested,
there are substantial reasons which justified or mitigated the
violation and make revocation inappropriate, and that the reasons
are complex or otherwise difficult to develop or present.
Seilhamer, 996 A.2d at 43 n.4 (quoting Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25-26
(Pa. Cmwlth. 2009)) (some punctuation omitted).
5
permission to withdraw from the case, and the identifiable
issues raised at the administrative level are not waived
until the substantive brief stage, the court-appointed
attorney must analyze all such issues in order to obtain
leave to withdraw, even if those issues were not mentioned
in the petitioner’s petition for review.
Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1207 (Pa. Cmwlth. 2020);
see Pa. R.A.P. 1513(d)(5) (“[T]he omission of an issue from the statement [of
objections in a petition for review] shall not be the basis for a finding of waiver if
the court is able to address the issue based on the certified record.”).
Counsel’s Anders brief falls short of satisfying these requirements. In her
brief, Counsel addresses the question of whether the backtime imposed by the Board
fell within the presumptive ranges for both Midgley’s technical violation and his
conviction, despite the fact that Midgley never challenged the amount of backtime
he received. Anders Br. at 13-15. Additionally, Counsel discusses whether the Board
improperly revoked previously awarded credit for time spent at liberty on parole. Id.
at 15-16. What Counsel has failed to do, however, is analyze the leniency argument
Midgley made in his April 8, 2019 administrative appeal or the constitutional due
process and cruel and unusual punishment claims he presented in his pro se Petition
for Review. As such, Counsel’s Anders brief fails to clear the bar established by the
aforementioned case law and, thus, is technically insufficient.
III. Conclusion
Consequently, we deny Counsel’s Application to Withdraw without prejudice
and direct Counsel to remedy the aforementioned deficiencies by filing either an
6
amended Application to Withdraw and no-merit letter, or an advocate’s brief in
support of Midgley’s Petition for Review, within 30 days.5
____________________________
ELLEN CEISLER, Judge
5
We recognize that the maximum date on Midgley’s August 2015 sentence was March 7,
2022. However, it appears that Midgley is still incarcerated in the Commonwealth’s state prison
system at State Correctional Institution - Coal Township. See Inmate Locator, PA. DEP’T OF CORR.,
http://inmatelocator.cor.pa.gov (last visited March 31, 2022). Therefore, in addition to curing the
aforementioned deficiencies, Counsel shall address whether the passage of the maximum date on
Midgley’s August 2015 sentence renders his Petition for Review moot. See Taylor v. Pa. Bd. of
Prob. & Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000) (citations omitted) (“[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. . . . Dismissal will be refused 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 the court’s decision.”); Morrison v. Pa. Parole Bd. (Pa. Cmwlth., No. 655
C.D. 2020, filed Mar. 1, 2021), slip op. at 6, 2021 WL 772626, at *3 (parolee would suffer some
detriment if court dismissed petition for review on basis of mootness where parolee had presented
arguments that, if correct, raised the “possib[ility] that the Board may have erroneously impeded
his ability to start serving his [new] sentence and, thus, improperly delayed his ultimate release
from state custody”); Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a) (unreported Commonwealth Court opinions issued after January 15, 2008, may
be cited for their persuasive value).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert A. Midgley, :
Petitioner :
:
v. : No. 59 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 1st day of April, 2022, the Application to Withdraw as
Counsel filed by Sarah Beth Stigerwalt-Egan, Esquire (Counsel) is hereby DENIED
WITHOUT PREJUDICE. Counsel shall file either an amended Application to
Withdraw as Counsel and a no-merit letter pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), or an advocate’s brief in support of Petitioner Robert A.
Midgley’s Petition for Review, within 30 days of the date of this order.
____________________________
ELLEN CEISLER, Judge