E. Cummings v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric Cummings, :
Petitioner :
:
v. : No. 281 C.D. 2022
: Submitted: February 17, 2023
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: June 6, 2023
Eric Cummings (Cummings), an inmate at the State Correctional Institution
(SCI) at Mercer, petitions for review from an order of the Pennsylvania Parole Board
(Parole Board), which dismissed his challenge to the Parole Board’s sentence
calculations as untimely. In addition, Cummings’ appointed counsel, Autumn L.
Johnson, Esquire (Counsel), filed an application to withdraw as counsel, asserting
Cummings’ appeal lacks merit. After review, we grant Counsel’s application to
withdraw and affirm the Parole Board’s order.
BACKGROUND
On June 6, 2013, Cummings pled guilty to driving under the influence of
alcohol and driving while his operating privileges were suspended or revoked.
Certified Record (C.R.) at 9. The Mercer County Court of Common Pleas sentenced
Cummings to 1 to 5 years in an SCI. Id. On January 9, 2014, a Venango County
jury found Cummings guilty of terroristic threats and the Venango County Court of
Common Pleas (Venango County) sentenced him to 1 year 4 months minimum to 3
years maximum in an SCI (collectively, Original Sentences). At that time, his
maximum sentence date was April 29, 2019. Id. at 13.
On November 1, 2015, the Parole Board released Cummings on parole.
Subsequently, on March 8, 2019, Cummings pled guilty to charges involving the
illegal possession and sale of firearms. Id. at 34. Venango County sentenced
Cummings to an aggregate term of 1 to 5 years in an SCI (New Sentence). In its
sentencing order, Venango County indicated the New Sentence was “intended to run
concurrent with any and all sentences previously imposed upon [Cummings]
whether in Venango County or elsewhere.” Id. at 39. Additionally, the order stated
that “[c]redit shall be allowed for THIRTY-FIVE (35) days previously served in the
Venango County Jail from May 24, 2018 through June 27, 2018.” Id.
By decision mailed on April 19, 2019, the Board recommitted Cummings to
an SCI as a convicted parole violator (CPV) to serve 18 months of backtime
(Recommitment Order). Id. at 22-23. The Recommitment Order informed
Cummings that the Parole Board did not award him credit for time spent at liberty
on parole because his conviction involved possession of a weapon and because of
his unresolved drug and alcohol issues. Id. Accordingly, the Parole Board
calculated his parole violation maximum date as December 23, 2021. Id. at 22. The
Recommitment Order further stated:
IF YOU WISH TO APPEAL THIS DECISION, YOU MUST FILE A
REQUEST FOR ADMINISTRATIVE RELIEF WITH THE BOARD
WITHIN THIRTY (30) DAYS OF THE MAILING DATE OF THIS
DECISION. THIS REQUEST SHALL SET FORTH SPECIFICALLY
THE FACTUAL AND LEGAL BASES FOR THE ALLEGATIONS.
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YOU HAVE THE RIGHT TO AN ATTORNEY IN THIS APPEAL
AND IN ANY SUBSEQUENT APPEAL TO THE
COMMONWEALTH COURT. YOU MAY BE ENTITLED TO
COUNSEL FROM THE PUBLIC DEFENDER’S OFFICE AT NO
COST. ENCLOSED WITH THIS BOARD DECISION IS AN
ADMINISTRATIVE REMEDIES FORM AND THE NAMES AND
ADDRESSES OF ALL THE CHIEF PUBLIC DEFENDERS IN THE
COMMONWEALTH. ANY REQUEST FOR A PUBLIC
DEFENDER SHOULD BE SENT DIRECTLY TO THE PUBLIC
DEFENDER’S OFFICE IN THE COUNTY WHERE YOU
CURRENTLY RESIDE.
Id. at 23.
On February 23, 2021, the Parole Board denied Cummings’ request for parole
(Parole Denial Order). Id. at 24-26. On March 19, 2021, Cummings filed a request
for administrative review of the Parole Board’s Parole Denial Order. Id. at 27-30.
On May 17, 2021, the Board advised Cummings that he did not have a right to
administrative review of the Parole Board’s Parole Denial Order and that it would
take no further action. Id. at 33.
On January 27, 2022, Cummings filed a Notice of Appeal/ Request for
Administrative Review requesting the Parole Board to recalculate his time credit to
make it consistent with the trial court’s sentencing order in his New Sentence. Id. at
37. Specifically, Cummings asserted that the sentencing order specified his New
Sentence was to “be served concurrently with all previous sentences.” Id. He
asserted the Parole Board “unilaterally change[d] or ignore[d]” the sentencing order
by considering his New Sentence to “have begun on December 23, 2021[,]” rather
than the date he was sentenced, March 8, 2019. Id. Additionally, Cummings
asserted the Parole Board failed to give him credit for 35 days he spent in the
Venango County Jail. Id.
3
By decision mailed March 4, 2022, the Parole Board advised Cummings that
it was treating his January 27, 2022 correspondence as a petition for administrative
review of its Recommitment Order, which was mailed on April 19, 2019. Id. at 41.
The Parole Board noted that the Parole Board’s regulations require petitions for
administrative review to be received by the Parole Board within 30 days of the
mailing date of a Parole Board decision, and, therefore, his appeal was untimely. Id.
at 41.
Cummings filed a Petition for Review with this Court. In his Petition,
Cummings asserts the Parole Board erred by failing to comply with Venango
County’s sentencing order, which directed his New Sentence was to be served
“concurrently with all previous sentences.” Petition at 1 (pagination supplied).
Cummings asserts the Parole Board “refuse[s] to follow the Sentencing Judge’s
Order and ha[s] unilaterally changed the Court’s Order to be a Consecutive
Sentence.” Id. at 1-2. Cummings further asserts the Parole Board “considers
[Cummings’] sentence dated March 8, 2019 to have begun on December 23, 2021”
and that this is “contrary to the Court’s Order, ordering the sentence of 1-5 [years]
to begin on March 8, 2019.” Id. at 2. Cummings requests this Court order the Parole
Board to “recalculate the time credit consistent with the sentencing order dated
March 8, 2019 and acknowledge that [Cummings] is immediately eligible for
parole.” Id. Additionally, Cummings asserts the Parole Board abused its discretion
by dismissing his appeal as untimely because “until December 23, 2021[,
Cummings] believed that the . . . Parole Board was complying with [Venango
County’s] March 8, 2019 order and running his time concurrently.” Id. at 3-4.
4
Counsel filed an application to withdraw as counsel and a No Merit Letter1 asserting
Cummings’ claims are without merit.
Before we address the merits of Cummings’ substantive argument, we must
first address Counsel’s No Merit Letter and application to withdraw. Counsel will
be permitted to withdraw if this Court concurs with counsel’s determination that the
petitioner’s issues raised on appeal are meritless. Com. v. Turner, 544 A.2d 927,
928-29 (Pa. 1988). To properly withdraw, counsel is required to submit a letter that
details the nature and extent of her review of the petitioner’s case and lists each issue
the petitioner wished to have raised, with an explanation of why counsel believes
those issues are meritless. Id. at 928. Once counsel satisfies these requirements, this
Court then conducts an independent review of the issues raised. Hont v. Pa. Bd. of
Prob. & Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996). If we concur in counsel’s
assessment, we will grant the requested leave to withdraw. Id.ANALYSIS
Here, Counsel’s No Merit Letter satisfies Turner’s technical requirements. It
contains a recitation of the relevant factual and procedural history and notes that
after Counsel’s “careful review of the relevant case law and facts in the case,
[C]ounsel does not believe that there are any facts in the record that support
[Cummings’] request for appeal.” No Merit Letter at 4 (pagination supplied).
Counsel outlines the issues raised by Cummings and concludes that Cummings’
appeal “is without merit and lacks support in either law or fact.” Id. at 1.
1
The term “no merit letter” refers to our Supreme Court’s decision in Commonwealth v. Turner,
544 A.2d 927, 928-29 (Pa. 1988), which sets forth the “appropriate procedures for withdrawal of
court-appointed counsel in collateral attacks on criminal convictions.” In a parole violation matter
where there is no constitutional right to counsel involved, a no merit letter is filed by an attorney
requesting leave of court to withdraw representation if the attorney determines the violator’s case
lacks merit. Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).
5
Additionally, Counsel appropriately provided Cummings a copy of her No Merit
Letter, which contains an explanation of Cummings’ right to retain substitute
counsel or to “raise any points which he may deem meritorious in a pro se brief”
with this Court. Id. at 5. Because Counsel satisfied Turner’s procedural
requirements for withdrawal, we now review the merits of Cummings’ Petition.
In reviewing the Parole Board’s decision, we are limited to determining
whether constitutional rights have been violated, whether an error of law has been
committed, or whether the necessary findings of fact are supported by substantial
evidence. Gibson v. Pa. Bd. of Prob. & Parole, 3 A.3d 754, 755 n.1 (Pa. Cmwlth.
2010) (citing Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704). The
Parole Board’s regulations specify that appeals and petitions for administrative
review filed by a parolee must “be received at the [Parole] Board’s Central Office
within 30 days of the mailing date of the Board’s order [or determination].” 37 Pa.
Code § 73.1. This Court has held that this deadline is jurisdictional, meaning the
Parole Board lacks authority to consider untimely petitions. McCaskill v. Pa. Bd. of
Prob. & Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993).
Relevant to this appeal, we note there is a significant distinction between a
trial court’s sentencing of a convicted criminal defendant and the Parole Board’s
imposition of backtime upon a parolee for his violation of the terms of his parole.
Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299 (Pa. 2003). While a trial court’s
sentence is “the judgment formally pronounced by the court upon a defendant who
has been convicted in a new criminal prosecution and which imposes the term of
punishment to be served,” Rivenbark v. Pennsylvania Board of Probation & Parole,
501 A.2d 1110 (Pa. 1985), the term backtime refers to “that part of an existing
judicially[ ]imposed sentence which the [Parole] Board directs a parolee to complete
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following a finding[,] after a civil administrative hearing[,] that the parolee violated
the terms and conditions of parole,” and before the parolee begins to serve a new
sentence. Krantz v. Pa. Bd. of Prob. & Parole, 484 A.2d 1044, 1047 (Pa. Cmwlth.
1984). Thus, the Parole Board’s requirement that a parolee serve backtime relates
to the original sentence from which the offender was paroled and is unrelated to any
sentence for conviction on other criminal charges. Martin, 840 A.2d at 302.
Further, the law in the Commonwealth mandates that a sentence for a crime
committed on parole must be served consecutively with the time remaining on an
original sentence. Specifically, the Prisons and Parole Code (the Code)2 requires:
If a new sentence is imposed on the offender, the service of the balance
of the term originally imposed by a Pennsylvania court shall precede
the commencement of the new term imposed in the following cases: if
a person is paroled from a State correctional institution and the new
sentence imposed on the person is to be served in the State correctional
institution.
61 Pa.C.S. § 6138(a)(5)(i). Thus, a sentencing judge does not have the authority to
order a new state sentence run concurrently to a parolee’s backtime on an original
sentence. Kerak v. Pa. Bd. of Prob. & Parole, 153 A.3d 1134 (Pa. Cmwlth. 2016)
(citation omitted).
Here, in its Recommitment Order, the Parole Board set forth Cummings’
recalculated parole violation maximum date on his Original Sentences as December
23, 2021. In Cummings’ Notice of Appeal to the Parole Board, he challenges the
Parole Board’s conclusion that his New Sentence did not begin until December 23,
2021, asserting that this is inconsistent with the sentencing order. However, because
the Code requires Cummings to serve his Original Sentence before he can begin to
2
61 Pa.C.S. §§ 101-7301.
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serve his New Sentence, we agree with the Parole Board’s treatment of his appeal as
a challenge to his credit and time calculations in the Recommitment Order.
Therefore, we consider whether the Parole Board properly dismissed Cummings’
appeal as untimely.
In addition to recalculating Cummings’ parole violation maximum sentence
date, the Recommitment Order advised Cummings of his right to appeal and the
appeal deadline. Because the Recommitment Order was mailed on April 19, 2019,
Cummings’ deadline to appeal that order was May 20, 2019. The Recommitment
Order advised Cummings of this deadline. Cummings failed to challenge this order
until January 27, 2022, nearly three years after his deadline to appeal. Because
Cummings did not file a timely appeal of the Recommitment Order, which set forth
his new parole violation maximum sentence date and necessarily adjusted the date
on which he would begin serving his New Sentence, Cummings waived any
challenges to the credits afforded and the calculation of the new expiration date.
Cummings filed his challenge beyond his appeal deadline, and thus, the Parole Board
lacked the authority to consider his petition and properly dismissed his appeal as
untimely.3
3
Even if Cummings’ appeal had been timely, we would conclude that his claims lack merit.
Contrary to Cummings’ assertions, the Parole Board did not “unilaterally change” Venango
County’s sentencing order on the New Sentence. Rather, the Parole Board adjusted the parole
violation maximum date. Insofar as Cummings asks this Court to conclude the Parole Board is
violating the sentencing order because it requires the New Sentence to run concurrently to his
Original Sentences, we cannot adopt his position because it would result in the Parole Board’s
violation of the Code. 61 Pa.C.S. § 6138(a)(5)(i). Cummings is required to finish serving his
Original Sentences before he can begin serving his New Sentence. This is not a legal error by the
Parole Board, but rather a statutory requirement. Id. The Parole Board is not permitted to impose
a parole violation sentence to run concurrently with a new sentence for an offense committed while
on parole. See Harris v. Pa. Bd. of Prob. & Parole, 393 A.2d 510 (Pa. Cmwlth. 1978). Thus,
Cummings could not begin serving his New Sentence until he finished serving the backtime on his
(Footnote continued on next page…)
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CONCLUSION
For these reasons, we conclude that Counsel has fulfilled the requirements of
Turner and our independent review of the record confirms Cummings’ appeal lacks
merit. Accordingly, we grant Counsel’s application to withdraw as counsel and
affirm the Parole Board’s order.
______________________________
STACY WALLACE, Judge
Original Sentences. As the recalculated maximum date on his Original Sentences was December
23, 2021, Cummings could not begin serving the New Sentence until after that date. Additionally,
contrary to Cummings’ assertion that the Parole Board failed to award credit for time served, the
record indicates the Parole Board provided credit “as ordered from 5/24/2018 to 6/27/2018,” C.R.
at 34. This is consistent with the sentencing order on the New Sentence. Therefore, Cummings’
substantive challenges lack merit.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric Cummings, :
Petitioner :
:
v. : No. 281 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 6th day of June 2023, the Application to Withdraw as
Counsel filed by Autumn L. Johnson, Esquire, is GRANTED, and the Pennsylvania
Parole Board’s decision mailed March 4, 2022, is AFFIRMED.
______________________________
STACY WALLACE, Judge