B. Zeiber v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brant Zeiber, :
:
Petitioner :
:
v. : No. 225 C.D. 2022
: Submitted: November 4, 2022
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 31, 2023
Brant Zeiber (Parolee) petitions for review from an order of the
Pennsylvania Parole Board (Board) that denied his request for administrative review
challenging the Board’s failure to award credit for time served on the Board’s
detainer and time served in good standing on parole. Also before us is an application
to withdraw as counsel filed by Parolee’s court-appointed attorney, Kent D. Watkins,
Esquire (Counsel), on the ground that Parolee’s appeal is without merit. For the
reasons that follow, we grant Counsel’s application to withdraw as counsel, and we
affirm the Board’s order.
I. Background
Parolee was serving multiple sentences. Parolee was serving a 5- to 10-
year sentence for his conviction for prohibited firearm possession. This sentence ran
concurrently with a 5- to 10-year sentence for drug manufacture, sale, delivery or
possession with intent to deliver. In addition, Parolee was sentenced to a consecutive
1- to 3-year sentence for burglary. Parolee’s minimum sentence date was February
14, 2017, with a maximum date of February 14, 2024. Certified Record (C.R.) at 1.
On February 14, 2017, the Board released Parolee on parole. At the
time of his parole, 2,556 days remained unserved on his original sentences. C.R. at
131. On March 6, 2019, the Board arrested and detained Parolee for violating
condition #5B of his parole (refrain from owning or possessing any firearm or any
other weapon). Id. at 15; see id. at 8. The Board alleged that Parolee possessed a
crossbow with three bolts and three large, bladed hunting knives. Id. at 15. On
March 18, 2019, Parolee admitted to the violation and waived his right to a violation
hearing. Id. at 14. As the result of this admission, by action dated on April 12, 2019,
the Board recommitted Parolee as a technical parole violator (TPV) to serve six
months’ backtime. Id. at 34-36.
Shortly thereafter, while serving time as a TPV, on May 6, 2019, local
authorities charged Parolee with felony possession of a firearm and other crimes.
C.R. at 40. On May 21, 2019, bail was set at $50,000, which Parolee did not post.
Id. at 109.
On June 4, 2021, Parolee pleaded guilty to misdemeanor possession of
an instrument of a crime, and he was sentenced to 28 months to 56 months. C.R. at
71. All other charges were nolle prossed. Id. at 71, 82, 109. He returned to Board
custody on June 4, 2021.
2
As a result of the new conviction, the Board charged Parolee as a
convicted parole violator (CPV). C.R. at 40. The Board held a revocation hearing
on July 19, 2021. Id. at 84-97. Parolee waived his right to counsel and participated
in the hearing pro se. Id. at 65, 85. At the hearing, Parolee acknowledged his new
conviction. Id. at 93-94.
By decision dated September 9, 2021, the Board recommitted Parolee
as a TPV, referring to prior Board action dated April 12, 2019, and as a CPV to serve
12 months concurrently for a total of 12 months’ backtime. C.R. at 120. The Board
credited Parolee’s backtime with 76 days for time served solely on the Board’s
detainer from the date of his arrest for technical parole violations, March 6, 2019, to
the date that bail was set on the new criminal charges, May 21, 2019. Id. However,
the Board did not award credit for any time that he spent at liberty on parole because
the new offense involved the possession of a weapon. Id. at 121. By applying the
76-day credit to Parolee’s 2,556 days owed on his original sentences, the Board
determined that Parolee still owed 2,480 days. Id. at 118. By adding 2,480 to his
June 4, 2021 custody of return date, the Board recalculated his new maximum
sentence date to March 19, 2028. Id. at 118, 120.
Parolee, represented by Counsel, requested administrative review1 of
the Board’s decision contending that the Board erred by not crediting him with all
time served solely on the Board’s detainer and/or abused its discretion by not
crediting him with the time that he spent at liberty on parole. Id. at 127. By decision
dated February 18, 2022, the Board denied Parolee’s request for administrative
review upon determining that the Board did not err or abuse its discretion in the
1
Parolee filed an “Administrative Remedies Form,” which the Board treated as a request
for administrative review because Parolee objected to his recalculated maximum date.
3
application of credit and calculation of his maximum date. Id. at 131-33. Thus, the
Board affirmed its recommitment decision. Id. at 133.
From this decision, Counsel filed a petition for review in this Court
reasserting these same issues. Shortly thereafter, Counsel filed an application to
withdraw as counsel along with a no-merit letter based on his belief that Parolee’s
appeal is without merit. This matter is now before us for disposition.
II. Application to Withdraw
Counsel seeking to withdraw as appointed counsel must conduct a
zealous review of the case and submit a no-merit letter to this Court detailing the
nature and extent of counsel’s diligent review of the case, listing the issues the
petitioner wants to have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw.2 Commonwealth v. Turner, 544 A.2d 927,
928 (Pa. 1988); Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d
19, 24-26 (Pa. Cmwlth. 2009) (en banc); Zerby v. Shanon, 964 A.2d 956, 960 (Pa.
Cmwlth. 2009). The no-merit letter must include “‘substantial reasons for
concluding that a petitioner’s arguments are meritless.’” Zerby, 964 A.2d at 962(quoting Jefferson v. Pennsylvania Board of Probation and Parole, 705 A.2d 513,
514 (Pa. Cmwlth. 1998)).
2
Where there is a constitutional right to counsel, court-appointed counsel seeking to
withdraw must submit a brief in accord with Anders v. California, 386 U.S. 738 (1967), referred
to as an Anders brief, that (i) provides a summary of the procedural history and facts, with citations
to the record; (ii) refers to anything in the record that counsel believes arguably supports the appeal;
(iii) sets forth counsel’s conclusion that the appeal is frivolous; and (iv) states counsel’s reasons
for concluding that the appeal is frivolous. Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009); Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth.
2009) (en banc). Where, as here, the petitioner has only a statutory, rather than a constitutional,
right to counsel, appointed counsel may submit a no-merit letter instead of an Anders brief.
Hughes, 977 A.2d at 25-26.
4
In addition, court-appointed counsel who seeks to withdraw
representation must: (1) notify the petitioner of the request to withdraw; (2) furnish
the petitioner with a copy of a brief or no-merit letter; and, (3) advise the petitioner
of his right to retain new counsel or raise any new points that he might deem worthy
of consideration. Turner, 544 A.2d at 928; Hughes, 977 A.2d at 22. If counsel
satisfies these technical requirements, this Court must then conduct an independent
review of the merits of the case. Turner, 544 A.2d at 928; Hughes, 977 A.2d at 25.
If this Court determines the petitioner’s claims are without merit, counsel will be
permitted to withdraw, and the petitioner will be denied relief. Turner, 544 A.2d at
928; Hughes, 977 A.2d at 27.
Upon review, Counsel’s no-merit letter satisfies the technical
requirements of Turner. Counsel states he conducted an exhaustive and thorough
review of the record, applicable statutes, and case law. He sets forth the issues raised
in the petition for review that the Board erred by failing to award Parolee for all time
served on the Board’s detainer and abused its discretion by failing to award credit
for all time served in good standing on parole. Counsel provides a procedural history
of the case and a thorough analysis as to why these issues lack merit, which includes
citations to applicable statutes, regulations, case law, and the certified record in
support.
Counsel explained that the Board did not err or abuse its discretion in
the application of credit and calculation of Parolee’s maximum sentence date.
Section 6138(a)(2) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S.
§6138(a)(2), provides that a parolee who is convicted of committing a crime while
on parole may be recommitted to serve the unserved balance of his original
maximum sentence and may be denied credit for “time at liberty on parole.” Under
5
Section 6138(a)(5)(i) of the Parole Code, 61 Pa. C.S. §6138(a)(5)(i), the parolee is
required to serve the balance of his original state sentence before serving his new
state sentence.
On March 6, 2019, the Board arrested and detained Parolee for
technical parole violations. Shortly thereafter, local authorities charged Parolee with
new criminal charges, to which he later pleaded guilty and was sentenced to 28
months to 56 months in prison. Bail was set on the new charges on May 21, 2019,
but was not posted. The Board properly credited Parolee’s original sentence for time
spent incarcerated solely on the Board’s detainer, from his March 6, 2019 arrest for
technical parole violations, to the date that bail was set on the new criminal charges,
May 21, 2019. Parolee is not entitled to credit for any other time served on the
Board’s detainer because time spent incarcerated from May 21, 2019, until
sentencing and return to Board custody on June 4, 2021, applied toward Parolee’s
new sentence.
Upon his recommitment, Parolee was subject to serve the unexpired
term of his original sentence. 61 Pa. C.S. §6138(a). Although the Board had
discretion to award credit for the time that he spent at liberty on parole, the Board
declined to credit any of Parolee’s street time because the new offense involved the
possession of a weapon. Citing case law, Counsel explains that this is a sufficient
articulation of a reason for denying credit.
When Parolee was originally paroled on February 14, 2017, his
maximum sentence date was February 14, 2024, which meant that he still owed
2,556 days on his original sentence. Deducting 76 days of credit from the 2,556
backtime owed, left 2,480 days still remaining. Adding 2,480 days to the June 4,
6
2021 custody for return date yielded a recalculated maximum sentence date of March
19, 2028.
Based on his review, Counsel concludes that Parolee’s appeal to this
Court is without merit, and he requests permission to withdraw from representation.
Counsel provided Parolee with a copy of the no-merit letter and his request to
withdraw. He advised Parolee of his right to retain new counsel or proceed by
representing himself.3 As we are satisfied that Counsel has discharged his
responsibility in complying with the technical requirements to withdraw from
representation, we shall conduct an independent review to determine whether
Parolee’s petition for review lacks merit.4
III. Independent Review
Parolee claims that the Board erred and abused its discretion by not
affording him all credit to which he was entitled and then miscalculating his
maximum sentence date. Parolee contends he was entitled to credit for all time
served on the Board’s detainer, not just the 76 days credited. He also contends the
Board abused its discretion by denying him credit for all time served in good
standing while on parole.
Section 6138(a) of the Parole Code governs parole violations for
convicted violators providing, in pertinent part:
3
Parolee did not retain new counsel or file a brief in support of his petition for review.
4
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication was in accordance with the law, and whether necessary findings were supported
by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704;
Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth.
2013).
7
(1) A parolee under the jurisdiction of the [B]oard released
from a correctional facility who, during the period of
parole or while delinquent on parole, commits a crime
punishable by imprisonment, for which the parolee is
convicted or found guilty by a judge or jury or to which
the parolee pleads guilty or nolo contendere at any time
thereafter in a court of record, may at the discretion of the
[B]oard be recommitted as a parole violator.
(2) If the parolee’s recommitment is so ordered, the
parolee shall be reentered to serve the remainder of the
term which the parolee would have been compelled to
serve had the parole not been granted and, except as
provided under paragraph (2.1), shall be given no credit
for the time at liberty on parole.
(2.1) 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 as
defined in 42 Pa.C.S. § 9714(g) (relating to sentences for
second and subsequent offenses) or a crime requiring
registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to
registration of sexual offenders).
(ii) The parolee was recommitted under section
6143 (relating to early parole of inmates subject to Federal
removal order).
61 Pa. C.S. §6138(a) (emphasis added).
Section 6138(a)(2) of the Parole Code authorizes the Board to recommit
CPVs to serve the remainder of the term they would have been required to serve had
they not been paroled, except as provided under subsection (2.1). 61 Pa. C.S.
§6138(a)(2). Subsection (2.1) grants the Board discretion to award credit to a CPV
recommitted to serve the remainder of his sentence, except when the CPV is
recommitted for the reasons stated in subsections 6138(a)(2.1)(i) and (ii).
8
61 Pa. C.S. §6138(a)(2.1)(i), (ii); Pittman v. Pennsylvania Board of Probation and
Parole, 159 A.3d 466, 473 (Pa. 2017).
In the exercise of this discretion, the Board must conduct an “individual
assessment of the facts and circumstances surrounding [a parolee’s] parole
revocation.” Pittman, 159 A.3d at 474. Further, the Board must “articulate the basis
for its decision to grant or deny a CPV credit for time served at liberty on parole.”
Id. Although the Board has broad discretion to grant or deny such credit, its decision
is subject to appellate review and must be reversed or vacated as an abuse of
discretion where the Board has based its denial of credit on an erroneous premise.
Id. at 474-75 and 475 n.12. Where the Board denies credit for time served at liberty
on parole, this time is applied to the original maximum expiration date to create a
new maximum date. Armbruster v. Pennsylvania Board of Probation and Parole,
919 A.2d 348, 351 (Pa. Cmwlth. 2007).
In addition, “where an offender is incarcerated on both a Board detainer
and new criminal charges, all time spent in confinement must be credited to either
the new sentence or the original sentence.” Martin v. Pennsylvania Board of
Probation and Parole, 840 A.2d 299, 309 (Pa. 2003); accord Gaito v. Pennsylvania
Board of Probation and Parole, 412 A.2d 568, 571 n.6 (Pa. 1980); see Smith v.
Pennsylvania Board of Probation and Parole, 171 A.3d 759, 769 (Pa. 2017)
(holding Martin and Gaito remain the rule in this Commonwealth for how credit is
applied). As our Supreme Court held in Gaito:
[I]f a defendant is being held in custody solely because of
a detainer lodged by the Board and has otherwise met the
requirements for bail on the new criminal charges, the time
which he spent in custody shall be credited against his
original sentence. If a defendant, however, remains
incarcerated prior to trial because he has failed to satisfy
9
bail requirements on the new criminal charges, then the
time spent in custody shall be credited to his new sentence.
412 A.2d at 571.
Upon his parole, Parolee acknowledged his parole conditions,
including: “[I]f you are convicted of a crime committed while on parole/reparole,
the Board has the authority, after an appropriate hearing, to recommit you to serve
the balance of the sentence or sentences which you were serving when
paroled/reparoled, with no credit for liberty on parole.” C.R. at 8. On June 4, 2021,
Parolee pled guilty to misdemeanor possession of an instrument of a crime, and he
was sentenced to 28 months to 56 months. Id. at 71. Upon his recommitment as a
CPV, Parolee was subject to serve the unexpired term of his original sentence. 61
Pa. C.S. §6138(a). Although the Board had discretion to award credit for the time
spent at liberty on parole,5 the Board declined to credit any of Parolee’s street time
because the new offense involved possession of a weapon. C.R. at 121. This a
sufficient articulation of a reason for denying credit. See Barnes v. Pennsylvania
Board of Probation and Parole, 203 A.3d 382, 391 (Pa. Cmwlth. 2019) (notation
that the new conviction was similar to original offense and early failure after only
eight months on the street was a sufficient articulation of reason for denying credit);
see also Pittman, 159 A.3d at 475 n.12 (“the reason the Board gives does not have
to be extensive and a single sentence explanation is likely sufficient in most
instances”). We conclude that the Board did not abuse its discretion by denying time
spent at liberty on parole.
Further, Parolee was not entitled to credit against his original sentence
for all time spent incarcerated between his date of arrest on his new criminal charges
5
Parolee was not convicted of a crime of violence, did not commit a crime requiring sex
offender registration, and was not subject to a federal removal order. See 61 Pa. C.S.
§6138(a)(2.1)(i) and (ii).
10
and sentencing and date of return to Board custody, only time served solely on the
Board’s detainer. At the time Parolee was charged with new criminal charges on
May 6, 2019, he was serving time as a TPV under the Board’s jurisdiction. Bail was
set on the new criminal charges on May 21, 2019, but not posted. By failing to post
bail on the new criminal charges, Parolee was no longer detained solely on the
Board’s warrant from that point forward. The Board properly credited Parolee’s
backtime for time served solely on the Board’s detainer from his March 6, 2019
arrest for technical parole violations, to May 21, 2019, when bail was set on the new
criminal charges, for a total of 76 days. Id. However, Parolee was not entitled to
credit against his original sentence for the period of detention between May 21, 2019,
and his custody of return, as this period is applicable to his new sentence. See
Martin. Upon review, the Board did not err or abuse its discretion by denying this
time towards Parolee’s original sentence.
When Parolee was paroled on February 14, 2017, his maximum
sentence date was February 14, 2024, which left an unserved balance of 2,556 days
remaining on his original sentence. C.R. at 118. The Board credited Parolee with
76 days spent solely on the Board’s detainer, leaving 2,480 days owed on his original
sentence. Id. at 118. By adding 2,480 days to his custody of return date of June 4,
2021, the Board recalculated his new maximum sentence date to March 19, 2028.
Id. at 118, 120. Upon review, the Board did not err in calculating Parolee’s new
maximum sentence date.
11
IV. Conclusion
Upon review, we agree with Counsel that Parolee’s claims are without
merit. Accordingly, we grant Counsel’s application to withdraw as counsel, and we
affirm the order of the Board denying Parolee’s request for administrative review.
MICHAEL H. WOJCIK, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brant Zeiber, :
:
Petitioner :
:
v. : No. 225 C.D. 2022
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 31st day of July, 2023, the order of the Pennsylvania
Parole Board, dated February 18, 2022, is AFFIRMED, and the Application to
Withdraw as Counsel filed by Kent D. Watkins, Esquire, is GRANTED.
__________________________________
MICHAEL H. WOJCIK, Judge