IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Callahan, :
Petitioner :
:
v. : No. 1963 C.D. 2015
: Submitted: May 6, 2016
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE COLINS FILED: June 3, 2016
Before this Court is the petition filed by Mark Callahan seeking
review of the September 15, 2015 determination of the Pennsylvania Board of
Probation and Parole (Board), which recalculated his maximum sentence date to
July 28, 2016, and the application of David Crowley, Esq., Chief Public Defender
of Centre County (Counsel), for leave to withdraw as the appointed attorney for
Mr. Callahan on the basis that the petition for review is without merit. For the
reasons that follow, we grant Counsel’s application to withdraw and affirm the
order of the Board.
In matters where appointed counsel seeks to withdraw and the
petitioner has a constitutional right to counsel, the appointed counsel must submit a
brief to the court that complies with the requirements derived from Anders v.
California, 386 U.S. 738 (1967). See Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009). Where no such constitutional right exists, an appointed counsel
may submit a no-merit letter complying with the requirements articulated by our
Supreme Court in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). A no-merit
letter must set forth: (i) the nature and extent of appointed counsel’s review of the
case; (ii) each issue that the petitioner wishes to raise on appeal; and (iii) appointed
counsel’s explanation of why each of those issues is meritless.1 Id. at 928. In the
instant matter, Counsel chose to submit an Anders brief in lieu of a no-merit letter.
While a no-merit letter will not suffice when an Anders brief is required, an Anders
brief may be submitted in lieu of a no-merit letter; in such an instance, this Court
will review the Anders brief by the standards applicable to a no-merit letter and
permit withdrawal if the Anders brief complies with the Turner requirements.
Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa.
Cmwlth. 2009).
Counsel’s brief contains a thorough review of the factual and
procedural history underlying this appeal and includes relevant citations to the
certified record. (Anders Brief at 5-11.) Counsel also explains why he believes
that an Anders brief was the more appropriate vehicle with which to request
withdrawal. In his brief, Counsel addresses each of the issues Mr. Callahan raised
in his petition for review, including that (i) the recalculation violated due process
by lengthening a judicially imposed sentence; (ii) Section 6138 of the Prisons and
1
In addition to the no-merit letter submitted to the court, appointed counsel is also required to:
(i) notify his client of his application to withdraw as appointed counsel; (ii) provide his client
with a copy of the no-merit letter submitted to the court; and (iii) advise his client of the right to
retain new counsel or to proceed pro se. Hughes v. Pennsylvania Board of Probation and
Parole, 977 A.2d 19, 22 (Pa. Cmwlth. 2009). Counsel submitted an application to withdraw with
this Court on October 9, 2015 detailing his compliance with each of these notification
requirements.
2
Parole Code2, 61 Pa. C.S. § 6138, is unconstitutional; and (iii) the Board failed to
properly recalculate his maximum sentence date. (Anders Brief at 18, 20, 22.)
Finally, Counsel has addressed each issue raised by Mr. Callahan and explained
why the issues not only lack merit but are indeed frivolous. (Id.) Accordingly, we
grant Counsel’s application to withdraw.
Mr. Callahan has not retained substitute counsel or submitted an
uncounseled brief in support of his petition. Having permitted Counsel to
withdraw, we will now conduct an independent evaluation of the proceedings
before the Board to determine if Mr. Callahan’s challenge to his maximum
sentence date has merit.3
Mr. Callahan was paroled from a State Correctional Institution (SCI)
on February 8, 2010 and recommitted as a technical parole violator on November
2, 2010. (Certified Record (C.R.) at 25.) At that time, Mr. Callahan continued to
receive credit towards his original sentence for 267 days spent at liberty on parole.
(Id.) Mr. Callahan was again paroled from a SCI on September 14, 2011 with a
maximum sentence date of June 28, 2013. (C.R. at 31, 35.) Each time Mr.
Callahan was paroled, Mr. Callahan agreed to a list of conditions governing his
parole and received notice that he could be recommitted for a violation of those
conditions or as a result of new criminal charges without receiving credit against
his original sentence for time spent at liberty on parole. (C.R. at 28-30.) On
March 12, 2013, Mr. Callahan was arrested on new criminal charges, and on
2
61 Pa. C.S. §§ 101-6309.
3
Our review of the Board’s decision is limited to determining whether the Board’s findings are
supported by substantial evidence, whether an error of law was committed, and whether
constitutional rights were violated. Williams v. Pennsylvania Board of Probation and Parole, 68
A.3d 386, 388 n.3 (Pa. Cmwlth. 2013).
3
March 13, 2013, the Board detained Mr. Callahan as a technical parole violator
pending disposition of his criminal charges. (C.R. at 33-35, 37.) Mr. Callahan was
released on his own recognizance on May 9, 2013 but remained confined due to
the Board’s detainer until June 28, 2013, at which point he was released from an
SCI. (C.R. at 42, 103.) On July 24, 2013, the court changed Mr. Callahan’s bail
from released on his own recognizance to monetary bail. (C.R. at 42.) On
December 17, 2013, Mr. Callahan pled guilty to new criminal charges and was
sentenced to a new term of imprisonment. On March 10, 2014, the Board again
lodged its detainer. (C.R. at 42, 65-67.) Following a hearing on March 11, 2014,
Mr. Callahan was recommitted as a technical and a convicted parole violator with
backtime to be served when he completed his county sentence. (C.R. at 67-100.)
Mr. Callahan’s maximum sentence date was recalculated at this time to July 28,
2016. (C.R. at 103.) On March 20, 2015, Mr. Callahan was paroled from his
county sentence. (C.R. at 50.) Mr. Callahan challenged his recalculated maximum
date by way of letter and an administrative remedies form, arguing that the Board’s
action lengthened his judicially imposed sentence of 7 ½ to 15 years and
contending that his maximum date should be July 28, 2015. (C.R. at 108-109,
112.) On September 15, 2015, the Board denied relief and on October 9, 2015, Mr.
Callahan filed a petition for review with this Court.
At Mr. Callahan’s March 11, 2014 recommitment hearing, a certified
record of his new criminal conviction was submitted into evidence without
objection. (C.R. at 7-8.) Based on this evidence, Mr. Callahan was recommitted
as a convicted parole violator and the Board had authority pursuant to Section
6138(a)(2) of the Prisons and Parole Code to recalculate Mr. Callahan’s maximum
sentence date to reflect no credit for time spent at liberty on parole, including the
4
267 days of street time from 2010 and the 289 days remaining on Mr. Callahan’s
sentence when he was paroled on September 14, 2011. 61 Pa. C.S. § 6138(a)(2).4
However, because Mr. Callahan was incarcerated solely due to the Board’s
detainer from March 13, 2013 until March 23, 2013 and from May 9, 2013 until
June 28, 2013, a total of 60 days, the Board was required to credit Mr. Callahan’s
original sentence for this time. Accordingly, when the Board recommitted Mr.
Callahan, it recalculated his maximum sentence date to reflect the additional 496
days owed on his original sentence. The Board acted within its authority and did
not err in recalculating Mr. Callahan’s maximum sentence date. See, e.g. Richards
v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 599 (Pa. Cmwlth.
2011) (en banc) (holding that when a parolee is recommitted due to a new criminal
conviction, his maximum sentence date may be extended to account for all street-
4
Section 6138 of the Prisons and Parole Code specifies the powers and duties of the Board to
address violation of the terms of parole, providing, in relevant part:
(a) Convicted violators.—
(1) A parolee under the jurisdiction of the board
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 board 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.
61 Pa. C.S. § 6138(a).
5
time, regardless of good or delinquent standing); Davenport v. Pennsylvania Board
of Probation and Parole, 656 A.2d 581, 584 (Pa. Cmwlth. 1995) (accord). Mr.
Callahan’s argument to the contrary is without merit.
Mr. Callahan’s challenge to the constitutionality of the Board’s action
is equally without merit. The Board did not extend Mr. Callahan’s judicially
imposed sentence; the Board merely determined Mr. Callahan forfeited the time he
spent at liberty on parole as a result of his new criminal conviction. Gaito v.
Pennsylvania Board of Probation and Parole, 412 A.2d 568, 570 (Pa. 1980)
(upholding the constitutionality of the Board’s authority to deny a convicted parole
violator credit for time spent at liberty on parole and holding that “when the Board
refuses to credit a convicted parole violator with time spent free on parole there is
neither a usurpation of the judicial function of sentencing nor a denial of the
procedural safeguards to which persons are entitled.”); see also Martin v.
Pennsylvania Board of Probation and Parole, 840 A.2d 299, 309 (Pa. 2003)
(accord). Moreover, Mr. Callahan had notice, a hearing and a full opportunity to
be heard and seek review of the Board’s decision. The Board did not tread upon
Mr. Callahan’s constitutional rights by denying him credit for time spent at liberty
on parole; rather, the Board acted in accordance with clear statutory authority
provided by the General Assembly.
Mr. Callahan’s request for relief is without merit; accordingly, we
grant Counsel’s request to withdraw and we affirm the order of the Board.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Callahan, :
Petitioner :
:
v. : No. 1963 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 3rd day of June, 2016, the application of David
Crowley, Esq., Chief Public Defender of Centre County, for leave to withdraw as
appointed counsel for Mark Callahan is GRANTED and the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter is
AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge