B. England v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Berisford England, :
:
Petitioner :
:
v. : No. 960 C.D. 2020
: Submitted: March 5, 2021
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 16, 2021
Berisford England (England), an inmate at the State Correctional
Institution (SCI) at Mahanoy, petitions for review of the Pennsylvania Parole
Board’s (Board) decision denying his request for administrative relief, recommitting
him as a technical parole violator (TPV) to serve six months in an SCI, and listing
him for review for reparole on or after March 20, 2021. On appeal, England claims
that the Board erred in recommitting him to an SCI instead of a community
corrections center/community corrections facility (CCC/CCF), and denying him
automatic reparole at the conclusion of his six-month confinement as a TPV.
Appointed counsel, Kent D. Watkins, Esquire (Counsel), has filed an application to
withdraw as counsel, asserting that England’s claims are meritless. For the
following reasons, we grant Counsel’s application and affirm the Board’s order.
On March 1, 2016, England pleaded guilty to the charge of robbery
before the Court of Common Pleas of Philadelphia County and was sentenced to
three to six years of incarceration in an SCI. Certified Record (C.R.) at 1. At that
time, his maximum sentence date was September 19, 2021.1 Id. at 2.
England was released on parole on September 19, 2018. C.R. at 7. On
November 6, 2019, parole staff attempted to make contact with England at his
approved residence, but England did not answer the door. Id. at 20. Parole staff left
a letter directing England to contact parole staff within 24 hours. Id. The next day,
England left a message with parole staff indicating that he had received the letter.
Id. On November 13, 2019, parole staff again attempted to contact England, via text
message, to schedule a home visit. Id. England replied to the text that evening,
explaining that he had moved from his approved residence; however, he did not
provide his new address. Id. Eventually, England admitted that he had moved to
Georgia. Id. As such, the Board declared him delinquent effective November 14,
2019, and issued a detainer warrant on December 6, 2019. Id. at 12-13.
On December 6, 2019, England turned himself in to the Board’s
Norristown Sub-Office, and he was placed in custody. C.R. at 21. On December
10, 2019, he waived his right to counsel and to violation and panel hearings, and
admitted to violating three conditions of his parole, including: leaving the district
without permission, moving without permission, and use of drugs. Id. at 16-17. The
Board, however, did not immediately revoke England’s parole based on his
admission/waiver. Instead, on December 18, 2019, the Board issued a decision,
1
This sentence was to run concurrent to a probation revocation in the Court of Common
Pleas of Montgomery County for retail theft and a probation revocation in Bucks County for
possession of drug paraphernalia. Certified Record (C.R.) at 1. The controlling maximum
sentence dates on those convictions were April 14, 2020, and September 2, 2017, respectively. Id.
at 2.
2
noting that probable cause on England’s technical parole violations had been
established, directing that England be detained in a parole violator CCC, and holding
its decision on the technical violations in abeyance pending England’s completion
of the recommended programs. C.R. at 25-27. While detained, however, and before
he could be transferred to a secure parole violator CCC in lieu of recommitment,
England committed multiple assaultive misconducts in SCIs. Id. at 37, 39.
Specifically, on February 6, 2020, England threatened an SCI employee with bodily
harm, and, on March 18, 2020, he threatened to “stick” his cellmate and refused to
obey an order. Id. at 39. Following disciplinary hearings, England was found guilty
of both misconducts, which were later deemed to constitute assaultive behavior by
a Department of Corrections (DOC) hearing examiner. Id. at 29, 38-39.
By decision mailed on May 8, 2020, the Board recommitted England
as a TPV to serve six months’ backtime in an SCI for violating the three parole
conditions to which he previously admitted. C.R. at 43. The Board also recalculated
England’s maximum sentence date from September 19, 2021, to October 11, 2021,
based on the parole violations. Id. at 41, 43. The Board found that England was an
identifiable threat to public safety and a parolee who could not be safely diverted to
a CCC/CCF, and further noted that he had demonstrated unmanageable behavior
making him not amenable to diversion. Id. at 37, 43. The Board also noted
England’s poor adjustment to supervision and his commission of disciplinary
infractions involving assaultive misconducts in SCIs. Id. Because England was no
longer in good standing with the Board, it denied him automatic reparole and
indicated that England would be reviewed for reparole one year from the date of his
last assaultive misconduct, i.e., on or after March 20, 2021. Id. at 36-39, 44.
3
On May 21, 2020, England filed a pro se administrative appeal, which
the Board received on June 1, 2020. C.R. at 45-46. Therein, he argued that, because
he only committed technical parole violations, he should have been recommitted to
a CCC/CCF, not an SCI, pursuant to the Act of July 5, 2012, P.L. 1050, No. 122
(Act 122). Id. at 46. England also argued that, contrary to what the Board stated in
its May 8, 2020 decision, he had never been sent to or resided in a CCC/CCF, and,
therefore, the Board erred in recommitting him to an SCI for the reason that he was
“discharged from a parole violator program” in a CCC/CCF. Id. As a result of the
Board’s “incorrect and unsubstantiated” recommitment of England to an SCI, he
requested that he be granted immediate release on parole. Id.
By decision mailed on September 16, 2020, the Board denied England’s
administrative appeal and affirmed its May 8, 2020 decision. C.R. at 62-63. In
doing so, the Board referenced its December 18, 2019 decision diverting England to
a parole violator CCC for technical violations, and observed that while England was
awaiting placement in a CCC in SCI-Phoenix, he incurred two misconducts that
were later found to constitute assaultive behavior by a DOC hearing examiner. Id.
at 62. The Board explained that it acted within its authority in denying England
automatic reparole because, under Section 6138(d)(5) of the Prisons and Parole Code
(Parole Code), 61 Pa. C.S. § 6138(d)(5), “automatic reparole does not apply to
[TPVs] who commit disciplinary infractions involving assaultive behavior.” Id. The
Board also determined that it acted within its discretion in denying automatic
reparole without conducting an evidentiary hearing, as England was already afforded
an opportunity to challenge the misconducts at issue at the hearing thereon. Id. The
Board did not specifically address England’s argument concerning his
recommitment to an SCI, rather than a CCC/CCF.
4
England, through Counsel, filed the instant petition for review,2
alleging that the Board’s “order revoking parole confitures [sic] an error of law, a
violation of [England’s] constitutional rights[,] and is not supported by substantial
evidence.”3 Petition for Review ¶5. Thereafter, Counsel filed the application to
withdraw, along with a no-merit letter, asserting that the appeal is meritless.
When evaluating an application to withdraw from representation of a
parolee who challenges a revocation decision, we must determine whether counsel
has satisfied the following requirements of: (1) notifying the inmate of the
application to withdraw; (2) providing the inmate with a copy of a no-merit letter in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); and (3)
advising the inmate of his right to retain new counsel or file a brief on his own behalf.
Miskovitch v. Pennsylvania Board of Probation & Parole, 77 A.3d 66, 69 (Pa.
Cmwlth. 2013). The no-merit letter must detail the extent of counsel’s review and
explain why the inmate’s claim is meritless. Zerby v. Shanon, 964 A.2d 956, 961
(Pa. 2009).
Counsel’s no-merit letter herein meets the Turner requirements. In his
no-merit letter, Counsel recites England’s argument “that he had never been placed
in a CCC/CCF program and should not have been in an SCI[,]” and notes that “[h]e
gives no basis for this assertion.” No-Merit Letter at 3. Counsel also explains that
“[i]n [England’s] case, [England] was found guilty of misconduct involving
threatening an employee or their [sic] family with bodily harm on March 18, 2020[,]
2
Our scope of review is limited to determining whether necessary findings of fact are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. McCloud v. Pennsylvania Board of Probation and Parole, 834
A.2d 1210, 1212 n.6 (Pa. Cmwlth. 2003).
3
No factual errors are asserted.
5
and February 6, 2020[,]” and that “[a]s a result, [England] is not entitled to
immediate parole or placement in a CCC/CCF.” Id. at 4.
This Court has previously addressed this issue, albeit under former
Section 6138(c)(6) of the Parole Code, formerly 61 Pa. C.S. §6138(c)(6), repealed
by Section 15 of Act 122, which section required that the Board divert TPVs from
confinement in an SCI unless the parolee’s diversion posed an undue risk to public
safety. See Harmer v. Pennsylvania Board of Probation and Parole, 83 A.3d 293(Pa. Cmwlth. 2014) (addressing a parolee’s challenge to a Board decision
recommitting him to an SCI rather than diverting him to a CCC as required by
statute); Baldelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92 (Pa.
Cmwlth. 2013) (same).
Notably, Section 20 of the Act of December 18, 2019, P.L. 776, No.
115, amended Section 6138(c) of the Parole Code by, inter alia, amending the
language of Section 6138(c)(1) and adding Section 6138(1.2) and (1.3) to the Parole
Code, which subsections now govern the Board’s determination of TPVs’
recommitment terms and whether TPVs are to be recommitted to a CCC/CCF or an
SCI. See Section 6138(c)(1), (1.2), and (1.3) of the Parole Code, 61 Pa. C.S.
§6138(c)(1), (1.2), and (1.3).
Specifically, Section 6138(c)(1.3)(v) of the Parole Code states:
If the [B]oard determines that one of the following
conditions is present regarding a parolee who violates the
terms and conditions of parole, the parolee shall not be
eligible for detention under paragraph (1.2) and shall be
detained in or recommitted to a[n SCI:]
***
6
(v) There exists an identifiable threat to public safety, and
the parolee cannot be safely diverted to a community
corrections center [or] community corrections facility[.]
61 Pa. C.S. §6138(c)(1.3)(v).
In its Violation Hearing Report, the Board directed that England be
placed in an SCI because of an “[i]dentifiable threat to public safety and [he] cannot
be safely diverted to a CCC/CCF at this time,” because England “is demonstrating
unmanageable behavior, which makes him [] not amenable to diversion.” C.R. at
36-37. The Board also noted that it had “initially decided to divert [England] to a
secure community center for his parole violations in lieu of recommitment[;
h]owever, before he could be transferred to the center he committed multiple
assaultive misconducts in the SCI.” Id. at 37.4 In light of the foregoing, Counsel
correctly determined that England’s first claim on appeal is without merit.
As indicated above, Counsel also discusses England’s challenge to the
Board’s rescission of his right to automatic reparole, and concludes that England “is
4
In the Violation Hearing Report, the Board added the following information:
This was initially a diversion case. However, before [England]
could be transferred to a center, he committed two assaultive
misconducts in the SCI. On 02/06/2020, he violated rule #15 -
Threatening an Employee or Their Family with Bodily Harm. This
misconduct[] occurred when he threatened to “fuck up” a staff
member after she advised him that he could not have his commissary
that day. DOC found him guilty of the infraction at his 02/07/2020
disciplinary hearing.
On 03/18/2020, he violated rule #17 - Threatening Another Person
and rule #35 - Refusing to Obey an Order. These misconducts
occurred when he refused to lock in and threatened to “stick” his
cellmate. DOC found him guilty of both infractions at his
03/20/2020 disciplinary hearing.
C.R. at 39.
7
not entitled to immediate parole or placement in a CCC/CCF” because he “was found
guilty of misconduct involving threatening an employee or their [sic] family with
bodily harm on March 18, 2020[,] and February 6, 2020. ([C.R. at] 32-33.)” No-
Merit Letter at 4. The Board’s Violation Hearing Report also directs England’s
recommitment “as a TPV to [an] SCI to serve six months,” and the rescission of his
“automatic reparole due to assaultive misconducts committed in the SCI,” with
“review for reparole on or after 03/20/2021.” C.R. at 38.
Counsel’s no-merit letter likewise properly addresses England’s second
issue, i.e., that he should be granted immediate parole, presumably because he would
have been entitled to be automatically reparoled had he actually been transferred to
the parole violator CCC in accordance with the Board’s December 18, 2019 decision
and/or had he not committed the assaultive misconducts. In doing so, Counsel
correctly explains that a parolee who has committed assaultive behavior forfeits his
right to automatic reparole. See Section 6138(d)(3)(i) and (5)(i) of the Parole Code,
61 Pa. C.S. §6138(d)(3)(i), (5)(i).5 Again, Counsel correctly concluded that
England’s second claim on appeal is without merit.
5
Specifically, Section 6138(d)(3)(i), (5)(i) provides, as follows:
(d) Recommitment to correctional facility.--A [TPV]
recommitted to a[n SCI] under subsection (c) shall be recommitted
as follows:
***
(3) Except as set forth in paragraph [(5)], the parolee shall be
recommitted for one of the following periods, at which time the
parolee shall automatically be reparoled without further action by
the Board:
(Footnote continued on next page…)
8
Accordingly, we grant Counsel’s application for leave to withdraw as
counsel, and affirm the Board’s order.
MICHAEL H. WOJCIK, Judge
(i) For the first recommitment under this subsection, a maximum
period of six months.
***
(5) The time limit under paragraph (3) shall not be applicable to a
parolee who:
(i) Committed a disciplinary infraction involving assaultive
behavior, sexual assault, a weapon or controlled substances[.]
61 Pa. C.S. §6138(d)(3)(i), (5)(i). We note, generally, that Section 6138(d)(3)-(5) was added to
the Parole Code by the Act of July 5, 2012, P.L. 1050, No. 122 (Act 122).
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Berisford England, :
:
Petitioner :
:
v. : No. 960 C.D. 2020
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 16th day of July, 2021, the Application to Withdraw
as Counsel filed by Kent D. Watkins, Esquire, is GRANTED, and the order of the
Pennsylvania Parole Board dated September 16, 2020, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge