B. Green v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bryant Green, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 868 C.D. 2021
Respondent : Submitted: February 18, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 21, 2022
Bryant Green (Green) petitions this Court for review of the
Pennsylvania Parole Board’s (Board) June 29, 2021 order reversing in part and
affirming in part the Board’s decision mailed June 9, 2020.1 Green is represented
by Montgomery County Assistant Public Defender Dana E. Greenspan, Esquire
(Counsel), who has filed an Application for Leave to Withdraw Appearance
(Application) and submitted a no-merit letter pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988) (Turner Letter),2 in support thereof. After review, this
Court grants Counsel’s Application and affirms the Board’s order.
1
The Board recalculated Green’s maximum sentence release date by crediting him 12 days,
from February 21 to March 5, 2017, because that period of confinement on the Board’s warrant
was not previously credited due to a clerical error. The Board affirmed its decision in all other
respects.
2
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[monwealth] v. Wrecks, 931 A.2d 717, 722 (Pa.
Super. 2007).
Green is currently incarcerated at the State Correctional Institution
(SCI) at Phoenix.3 On March 27, 2014, Green pled guilty to Manufacture, Delivery
or Possession with Intent to Manufacture and Deliver a controlled substance
(PWID), and Firearm not to be Carried without a License, and was sentenced to five
to ten years of incarceration (Original Sentence). His Original Sentence maximum
release date was October 27, 2021. On October 31, 2016, the Board paroled Green
from his Original Sentence.
On July 12, 2018, Nether Providence Township police arrested Green
on new criminal charges, and the Board lodged a detainer on July 23, 2018. In
addition to his new arrest, the Board charged Green with two technical parole
violations: change of approved residence without written permission of parole
supervision staff, and failure to maintain regular contact with parole supervision
staff. The Board originally scheduled Green’s preliminary/detention hearing to
address these matters for July 30, 2018, but rescheduled it due to Green being
hospitalized.
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.] 1984)); Zerby v. Shanon,
964 A.2d 956, 960 (Pa. Cmwlth. 2009) (“Turner [L]etter”);
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).
Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1204 n.2 (Pa. Cmwlth. 2020).
3
See http://inmatelocator.cor.pa.gov (last visited Apr. 20, 2022).
2
On August 1, 2018, the Board notified Green that the
preliminary/detention hearing would be conducted on August 6, 2018, and informed
him of his right to counsel. At the August 6, 2018 preliminary/detention hearing,
William Ruane, Esquire, represented Green, and Green signed a request that his
preliminary/detention hearing be conducted before a panel. On September 7, 2018,4
the Board detained Green pending disposition of the criminal charges, and stated
that a parole violation panel hearing would be scheduled.
On October 31, 2018, the Board held the parole violation panel hearing,
at which Counsel represented Green. By decision recorded on November 9, 2018,
the Board referred to the Board’s September 9, 2018 decision5 to detain Green
pending disposition of criminal charges in an SCI-Contracted County Jail, and
recommitted Green as a technical parole violator (TPV) to a Community Correction
Center (CCC)/Community Correction Facility (CCF)/Parole Violators Center for up
to six months for violating the condition to report as instructed. The November 9,
2018 decision further stated that Green was to be automatically reparoled without
further Board action upon successful completion of all recommended programs,
however, that parole release would be subject to detainers. The Board recalculated
Green’s maximum sentence release date to February 20, 2022.
On January 22, 2020, the Delaware County Common Pleas Court
(Common Pleas Court) convicted Green, under the name Joe R. Jenkins, of PWID,
Possession of a Controlled Substance (Heroin), Fleeing or Attempting to Elude
Officers, Recklessly Endangering Another Person (REAP), and Driving Under the
Influence (DUI), and sentenced him to an aggregate term of 72 hours to 96 months
of incarceration, followed by 2 years of probation, and imposed a $1,000.00 fine.
4
September 7, 2018, is the date of the “Board’s action.” Certified Record (C.R.) at 89.
5
September 9, 2018, is the date the “action” was “recorded.” C.R. at 89.
3
After being notified of his parole revocation hearing, on February 5,
2020, Green requested that the parole revocation hearing be conducted by a panel.
On March 5, 2020, the Board held the panel parole revocation hearing, at which
Counsel again represented Green. Parole Agent Walter Spall (Parole Agent Spall)
and Green testified at the hearing. The Certificate of Imposition of Judgment and
Sentence from the Common Pleas Court was entered into evidence and Green
acknowledged the conviction. Green confirmed that he had been in custody since
July 2018, and arrived at SCI-Phoenix on January 31, 2020. Green testified as to his
positive adjustment until his landlord stole all of his personal belongings. He further
explained his frustration with his unsuccessful efforts to obtain any assistance from
his parole agent with his problems. Green asserted that, if he had received help, he
would not have returned to crime.
By decision recorded on June 9, 2020, and mailed on June 19, 2020, the
Board modified the November 9, 2018 Board action by deleting the reparole portion
and recommitted Green as a Convicted Parole Violator (CPV) to serve 30 months of
backtime for the Delaware County convictions. The Board denied Green credit for
his time at liberty on parole because his new conviction was the same or similar to
his original offense. The Board recalculated Green’s Original Sentence maximum
release date to December 9, 2024.
On July 16, 2020, Green filed an administrative remedies form
appealing from the Board’s decision recorded on June 9, 2020, arguing that he
received no credit for the time spent at liberty on parole, and that his due process
rights were violated at his parole revocation hearing. On August 31, 2020, Green
filed another administrative remedies form appealing from the Board’s decision
recorded on June 9, 2020, but re-sent to him on August 10, 2020. By letter received
by the Board on March 15, 2021, Green requested the status of his appeals.
4
On June 29, 2021, the Board reversed the June 9, 2020 action regarding
the Original Sentence maximum release date and modified it to reflect the correct
Original Sentence maximum release date of November 27, 2024, and affirmed it in
all other respects. Green appealed to this Court.
By August 5, 2021 Order, this Court appointed the Montgomery
County Public Defender to represent Green. On August 10, 2021, Counsel entered
her appearance on Green’s behalf. On October 20, 2021, Counsel filed the
Application and the Turner Letter in support thereof. By October 25, 2021 Order
(Order), this Court informed Green that he may, within 30 days after service of the
Order on him by Counsel, either obtain substitute counsel at his own expense and
have new counsel enter an appearance and file a brief in support of the Petition for
Review (Petition), or file a brief on his own behalf.6
Before addressing the validity of Green’s substantive arguments, this
Court must assess the adequacy of Counsel’s Turner Letter. This Court has
explained:
“A [Turner] [L]etter 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[ v. Pa. Bd. of Prob. & Parole], 996 A.2d [40,]
43 [(Pa. Cmwlth. 2010)] (quoting Turner, 544 A.2d at
928) (some alterations omitted). As long as a Turner
[L]etter satisfies these basic requirements, [this Court]
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 Turner [L]etter fails on
technical grounds, [this Court] must deny the request for
leave to withdraw, without delving into the substance of
the underlying petition for review, and may direct counsel
6
Counsel also notified Green regarding the same in her Turner Letter. On October 28,
2021, Counsel served the Order on Green. Green did not obtain substitute counsel or file a brief
with this Court.
5
to file either an amended request for leave to withdraw or
a brief on behalf of their client. Id.
Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1207 (Pa. Cmwlth. 2020).
Here, Counsel stated in her Turner Letter that she reviewed the
Certified Record, examined the relevant case law and statutes, and consulted and
corresponded with Green. Further, Counsel presented the procedural history of
Green’s case, set forth and addressed the issues Green raised in his administrative
appeals, and concluded based on her exhaustive examination of the record and
research that Green’s sentence recalculation and due process violation claims had no
merit. Accordingly, this Court concludes that Counsel complied with the procedural
requirements for withdrawing from representation.
This Court will now conduct an independent review to determine the
validity of Green’s substantive arguments. Green presents three issues for this
Court’s review: (1) whether the Board violated Green’s due process rights at his
revocation hearing; (2) whether the Board violated the law by refusing to consider
Green’s mitigation evidence; and (3) whether the Board’s reasons and rationale for
its backtime assessment were false.7
Green argues that the Board violated his due process rights at his March
5, 2020 parole revocation hearing because Parole Agent Spall testified instead of his
7
In his Petition for Review, Green includes the additional issue of whether the aggregate
sentence is illegal, as the guideline, i.e., presumptive range, should have been 18-24 months.
However, this issue was not raised in Green’s administrative appeals. “It is well settled that ‘issues
not raised by a CPV before the [B]oard in an administrative appeal are waived for purposes of
appellate review by this [C]ourt.’ McCaskill v. Pa. Bd. of Prob. & Parole, . . . 631 A.2d 1092,
1094-95 ([Pa. Cmwlth.] 1993).” Mesko v. Pa. Bd. of Prob. & Parole, 245 A.3d 1174, 1179-80
(Pa. Cmwlth. 2021). Accordingly, Green waived that issue. Notwithstanding, because the Board
is permitted to aggregate the presumptive of ranges for all convictions, the Board used the correct
presumptive range. See Ward v. Pa. Bd. of Prob. & Parole, 538 A.2d 971, 975 (Pa. Cmwlth. 1988)
(“Where there are multiple offenses[,] the Board may treat each offense separately and [may]
aggregate the presumptive ranges to arrive at an applicable presumptive range.”).
6
supervising parole agent, and the revocation panel did not give Green the
opportunity to fully present, nor consider, his mitigation evidence.
Section 71.4 of the Board’s Regulations provides, in relevant part:
The following procedures shall be followed before a
parolee is recommitted as a [CPV]:
(1) A revocation hearing shall be held within 120 days
from the date the Board received official verification of
the plea of guilty or nolo contendere or of the guilty verdict
at the highest trial court level . . . .
....
(2) Prior to the revocation hearing, the parolee will be
notified of the following:
(i) The right to a revocation hearing, the right to notice of
the exact date and the right at the revocation hearing to be
heard by a panel.
(ii) The right to retain counsel, the right to free counsel if
unable to afford to retain counsel and the name and
address of the public defender.
(iii) There is no penalty for requesting counsel.
(iv) The right to speak, to have voluntary witnesses
appear and to present documentary evidence.
(v) The purpose of the hearing is to determine whether
to revoke parole and that if revocation is ordered, the
parolee will receive no credit for time spent at liberty
on parole.[8]
8
However, Section 6138(a)(2.1) of the Prisons and Parole Code (Parole Code) provided at
that time:
The [B]oard may, in its discretion, award credit to a parolee
recommitted under paragraph (2) for the time spent at liberty on
parole, unless any of the following apply:
(i) The crime committed during the period of parole or while
delinquent on parole is a crime of violence . . . or a crime requiring
registration . . . of sexual offenders[].
7
37 Pa. Code § 71.4 (emphasis added).
Further, Section 71.5(b) of the Board’s Regulations states: “In hearings
conducted under this chapter, documentary evidence and reports, including, but not
limited to, depositions, written interrogatories, affidavits, laboratory reports,
business records, public records, official records and letters rogatory, may be
utilized solely, if the panel or examiner is satisfied as to their authenticity,
relevancy, accuracy[,] and reliability.” 37 Pa. Code § 71.5(b) (emphasis added).
Here, Green requested and received a panel revocation hearing, wherein
Counsel represented him. Parole Agent Spall presented, and the Hearing Examiner
admitted into the record, the “Delaware County Court of Common Pleas Certificate
of Imposition of Judgment and Sentence[,] signed by the judge and sealed by the
Judicial Support Office there[,]” evidencing Green’s convictions. Certified Record
(C.R.) at 113; Notes of Testimony Mar. 5, 2020 (N.T.) at 8. Further, Green
acknowledged the convictions. See C.R. at 114; N.T. at 9. In addition, Green
testified at length at the hearing, see C.R. at 114-122; N.T. at 10-17, describing why
he believed he returned to crime, finally concluding:
And I’m not saying that the Board put me back in a
position that I went back to crime. What I’m saying to you
is, I went to the Board for help, and I do believe that, if
[the Board] ha[d] helped me more, I wouldn’t have went
back in the [sic] direction.
C.R. at 122; N.T. at 17. Because Green had notice of the proceedings and the
opportunity to present evidence, fully participated in his revocation hearing, and
(ii) The parolee was recommitted under [S]ection 6143 [of the
Parole Code, 61 Pa.C.S. § 6143,] (relating to early parole of inmates
subject to [f]ederal removal order).
Former 61 Pa.C.S. § 6138(a)(2.1).
8
acknowledged his convictions for which proof was entered into evidence, the Board
did not violate Green’s due process rights at his March 5, 2020 parole revocation
hearing.
Green next argues that the Board violated the law by refusing to
consider his mitigation evidence. Green specifically contends:
At the March 5, 2020[] violation hearing, [Green]
attempted to include mitigation evidence to the Board to
consider in [its] fashioning a revocation sentence in this
case. The [H]earing [E]xaminer stopped [Green’s]
testimony before he could finish, really even before he
could get started. The [H]earing [E]xaminer made it
abundantly clear during his interruption, that the things
that [Green] wanted to say, would bear no weight with him
with regard to the violation sentence.
Petition at 5. Contrary to Green’s assertion, the March 5, 2020 hearing transcript
reveals that Green explained at length, uninterrupted by the Hearing Examiner, what
Green believed were his mitigating circumstances. See C.R. at 114-122; N.T. at 10-
17.
Relative to his paperwork, the following exchange transpired:
[Counsel:] Is there anything you want to give the Board?
Any of that paperwork about the work you were selling?
[Green:] Yeah.
HEARING EXAMINER: Well, if he has - if it’s his
business paperwork, he probably needs to keep it. I mean,
I understand -.
[Green]: Yeah.
C.R. at 120; N.T. at 16. It was not until the end of Green’s testimony that the Hearing
Examiner inquired:
HEARING EXAMINER: Well, the [Board] can’t do
anything if it’s the landlord’s industry.
9
I mean, -
[Green]: It wasn’t -.
HEARING EXAMINER: [I]t doesn’t mean we weren’t
trying to help you. I mean, that’s just the reality of it.
[Green]: I mean, somebody could’ve called the landlord
on the phone and said, you know, you got all the parolee’s
stuff. Would you mind giving it back? Or something?
HEARING EXAMINER: I understand where you’re
coming from, [] Green. I get it.
C.R. at 113-114; N.T. at 16-17. Accordingly, the Board did not prevent Green from
presenting, nor did it refuse to consider, Green’s mitigation evidence.
Green further asserts that, pursuant to Sections 75.1(c) and 75.3(c) of
the Board’s Regulations, 37 Pa. Code §§ 75.1(c), 75.3(c), relating to CPVs and
TPVs, respectively, the Board has the option to continue parole for a justified excuse,
and the parolee has the right to submit evidence that will mitigate the assessment of
backtime.
“The amount of backtime imposed for parole violations is left to the
exclusive discretion of the Board.” Krantz v. Pa. Bd. of Prob. & Parole, 483 A.2d
1044, 1048 (Pa. Cmwlth. 1984). “[P]resumptive ranges . . . structure [the Board’s]
discretion . . . .” Id. Section 75.1(c) of the Board’s Regulations provides: “The
Board may deviate from the presumptive range or determine that recommitment
should not occur, provided written justification is given.” 37 Pa. Code § 75.1(c).
Section 75.3(c) of the Board’s Regulations states: “The Board may deviate from the
presumptive range or determine that recommitment should not occur provided
sufficient written justification is given.” 37 Pa. Code § 75.3(c). Here, Green testified
at the hearing concerning what he believed were mitigating circumstances.
Nonetheless, the Board recommitted Green as a CPV for his criminal convictions.
10
Clearly, the Board found no justification, nor was it required to, for not recommitting
Green as a CPV, nor deviating from the presumptive range.
Lastly, Green argues that the Board’s reasons and rationale for the
backtime it imposed were false. Specifically, Green states that the reasons stated for
his recommitment and backtime in the Board’s June 9, 2020 decision are not
supported by the record facts.
In its June 9, 2020 decision, the Board provided:
EVIDENCE RELIED ON: PAROLE AGENT[’]S TESTIMONY.
ACKNOWLEDGEMENT OF CONVICTION. CERTIFIED
COPY OF COURT RECORD PROVING CONVICTION. STATE
EXHIBITS. ALL EXHIBITS IN STATE[’]S EVIDENCE.
REASON: NOT AMENABLE TO PAROLE SUPERVISION.
CONVICTION IN A COURT OF RECORD ESTABLISHED.
ADJUSTMENT UNDER SUPERVISION. DECLARED
DELINQUENT BY THE BOARD. NEW CHARGES
SERIOUS/ASSAULTIVE. CONSIDERED A THREAT TO THE
SAFETY OF THE COMMUNITY.
C.R. at 156. The Board further declared:
THE BOARD IN ITS[] DISCRETION DID NOT AWARD
CREDIT TO [GREEN] FOR THE TIME SPENT AT LIBERTY
ON PAROLE FOR THE FOLLOWING REASON(S):
[GREEN] COMMITTED A NEW CONVICTION THAT IS THE
SAME OR SIMILAR TO THE ORIGINAL OFFENSE THEREBY
WARRANTING DENIAL OF CREDIT FOR TIME AT LIBERTY
ON PAROLE.
[GREEN] ABSCONDED WHILE ON PAROLE SUPERVISION
THEREBY WARRANTING THE DENIAL OF CREDIT FOR
TIME AT LIBERTY ON PAROLE.
C.R. at 157.
Green was convicted of PWID, Possession of a Controlled Substance
(Heroin), Fleeing or Attempting to Elude Officers, REAP, and DUI. The Criminal
Arrest and Disposition Report indicates:
11
[Green] [was] observed by members of the Nether
Providence Township Police Department conducting
suspected drug dealing activity in the [REDACTED] when
officers attempted to conduct a traffic stop of [Green’s]
vehicle[; Green] disregarded the officers and began to
drive at a high rate of speed to evade arrest. [Green] ran a
red light at the intersection of [REDACTED] and caused
a multi-vehicle accident.
C.R. at 99. Green’s original convictions were for PWID and a firearm offense.
Further, the Board found him delinquent and committed him to a CCC/CCF for up
to six months on his technical violations, which included failure to report and leaving
the jurisdiction. “The Board, as the ultimate fact-finder, evaluates witness
credibility, resolves conflicts in the evidence, and assigns evidentiary weight.”
Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269, 1271 n.2 (Pa. Cmwlth. 2010).
Although Green testified as to the reasons he moved to Chester and returned to
crime, the Board was free to reject that testimony and/or give it whatever weight it
believed it deserved. Accordingly, the Board’s reasons and rationale for revocation
are supported by the record evidence.
Green further contends that he is entitled to credit for the 11/2 years he
was at liberty on parole in good standing pursuant to Section 6138(c)(2) of the
Prisons and Parole Code (Parole Code). Green cites Penjuke v. Pennsylvania Board
of Probation & Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d
254 (Pa. 2020), to support his position.
Section 6138(c)(2) of the Parole Code provided at that time:
If the parolee is recommitted under this subsection, the
parolee shall be given credit for the time served on parole
in good standing but with no credit for delinquent time and
may be reentered to serve the remainder of the original
sentence or sentences.
Former 61 Pa.C.S. § 6138(c)(2) (emphasis added).
12
The Penjuke Court declared:
[I]n recommitting [a parolee] as a CPV, the Board could
not reach back, into the past periods of parole and also
take away or revoke credit that was previously granted to
[the parolee] as a TPV - credit which, . . . should have
“already been applied to his original sentence.” [Young v.
Pa. Bd. of Prob. & Parole,] 189 A.3d [16,] 21 [(Pa.
Cmwlth. 2018)].
Penjuke, 203 A.3d at 417 (emphasis added; quotation marks and citation omitted).
Accordingly, the Penjuke Court held: “[T]he Board lacks the statutory authority to
revoke street time[9] credit previously granted to a parolee as a TPV when it
subsequently recommits the parolee as a CPV.” Id. at 420. “Because the criminal
conduct that led to [Green’s] CPV recommitment occurred during the same parole
period as the violation that led to his TPV recommitment, Penjuke does not control
in this case.” Kazickas v. Pa. Bd. of Prob. & Parole, 226 A.3d 109, 116 (Pa. Cmwlth.
2020).
Having conducted an independent review, and determined that Green’s
substantive arguments lack merit, this Court grants Counsel’s Application and
affirms the Board’s order.
_________________________________
ANNE E. COVEY, Judge
9
Street time refers to the period of time a parolee spends at liberty on parole.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bryant Green, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 868 C.D. 2021
Respondent :
ORDER
AND NOW, this 21st day of April, 2022, Montgomery County Assistant
Public Defender Dana E. Greenspan, Esquire’s Application for Leave to Withdraw
Appearance is GRANTED, and the Pennsylvania Parole Board’s June 29, 2021
order is AFFIRMED.
_________________________________
ANNE E. COVEY, Judge