IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Freeman, :
Petitioner :
:
v. : No. 528 C.D. 2016
: Submitted: October 7, 2016
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: December 20, 2016
Mark Freeman (Freeman) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his administrative
appeal of a Board recommitment and recalculation order. Also before us is a
petition to withdraw as counsel filed by Freeman’s court-appointed attorney,
Daniel C. Bell, Esquire (Attorney Bell), on the ground that Freeman’s appeal is
without merit. For the reasons that follow, we grant Attorney Bell’s petition to
withdraw as counsel, and we affirm the Board’s order.
Freeman initially received an aggregate sentence of 10 years and 9
months to 30 years in prison for several convictions, including aggravated assault
and robbery. His original minimum sentence date was September 8, 1998, and his
original maximum sentence date was January 28, 2018.
In June 2004, the Board paroled Freeman to a community corrections
facility. In October 2005, the Board issued a warrant to commit and detain
Freeman. The Board subsequently recommitted Freeman as a technical parole
violator.
Thereafter, in December 2006, the Board re-paroled Freeman. The
Board subsequently declared Freeman delinquent as of July 2010. Several months
later, the Board recommitted Freeman for multiple technical parole violations.
In June 2012, the Board again re-paroled Freeman. At that time, he
had 2,040 days remaining on his original sentence.
In October 2012, the Board issued a warrant to commit and detain
Freeman. New criminal charges were filed against Freeman. He was released on
bail in January 2013. Thereafter, he pled guilty to one of the new criminal charges
and received a sentence of probation.
Ultimately, the Board recommitted Freeman as a technical parole
violator to serve six months’ backtime after he admitted to a violation of special
condition 7 of his parole (relating to curfew). Additionally, based on Freeman’s
new criminal conviction, the Board recommitted Freeman as a convicted parole
violator to serve six months’ backtime concurrent to the six months imposed for
the technical violation. The Board also recalculated Freeman’s maximum sentence
as May 5, 2023. Freeman filed an administrative appeal, which the Board denied.
2
Freeman filed a petition for review to this Court, primarily asserting
the Board erred in improperly extending his maximum sentence date when it
refused to afford him credit for periods in which he was on parole over the prior 10
years (and in so doing the Board “double dip[ped]”). Freeman’s Pet. for Review,
4/5/16, at 2. Additionally, he referenced a page of his administrative appeal in
which he argued the Board erred in exceeding the presumptive range when
imposing backtime for his parole violations without providing reasons for doing so
and by delaying in issuing its decision extending his maximum sentence date.
Freeman also filed an addendum to his petition for review in which he asserted the
recomputation of his maximum sentence date should have begun from the date of
the Board’s warrant. He further argued he was denied adequate representation for
purposes of parole revocation and appeal. This matter is now before us for
disposition.
Counsel seeking to withdraw 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. Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19 (Pa. Cmwlth. 2009) (en banc);
Zerby v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009).
In Hughes, we held, where there is a constitutional right to counsel,
counsel seeking to withdraw from representation of a parolee in an appeal of a
3
Board determination should file an Anders1 brief. Relying on Gagnon v. Scarpelli,
411 U.S. 778 (1973), we held a constitutional right to counsel arises where a
parolee raises a “colorable claim”:
(i) that he has not committed the alleged violation of the
conditions upon which he is at liberty; or (ii) that, even if
the violation is a matter of public record or is
uncontested, there are substantial reasons which justified
or mitigated the violation and make revocation
inappropriate, and that the reasons are complex or
otherwise difficult to develop or present.
Hughes, 977 A.2d at 24 (quoting Gagnon, 411 U.S. at 790). We further stated such
claims would only arise in appeals from determinations revoking parole. Id. Thus,
we held “[i]n an appeal from a revocation decision, this Court will apply the test
from Gagnon, quoted above, and, unless that test is met, we will only require a no-
merit letter.” Id. at 26 (emphasis in original, footnote omitted).
Here, the record contains no suggestion by Freeman that he did not
commit the crime for which he received the new criminal conviction or that he did
not commit the technical parole violation. Further, Freeman does not adequately
set forth substantial reasons that justified or mitigated his new criminal conviction
or technical parole violation and that make revocation inappropriate. Indeed, he
“knowingly, intelligently, and voluntarily” admitted he committed the crime at
issue as well as the technical parole violation, and he waived his right to a parole
revocation hearing. Certified Record (C.R.) at 80, 81. Moreover, the issues
Freeman raises are not complex or difficult to develop. Thus, Freeman does not
have a constitutional right to counsel under the Gagnon test; rather, he has a
1
See Anders v. State of California, 386 U.S. 738 (1967).
4
statutory right to counsel under Section 6(a)(10) of the Public Defender Act.2 As
such, Attorney Bell properly filed a Turner no-merit letter in seeking to withdraw
his representation of Freeman.
In order to withdraw, counsel must satisfy certain procedural
requirements, which include: notifying the parolee of his request to withdraw;
furnishing the parolee with a Turner letter; and, informing the parolee of his right
to retain new counsel or submit a brief on his own behalf. See Zerby.
Substantively, counsel’s Turner letter must contain: the nature and
extent of counsel’s review; the issues the parolee wishes to raise; and, counsel’s
analysis in concluding the parolee’s appeal is meritless. Zerby. If these
requirements are satisfied, we must conduct our own review of whether the issues
are meritless. Id.
Here, Attorney Bell’s no-merit letter satisfies the applicable technical
requirements. Attorney Bell notified Freeman of his request to withdraw and
advised him of his right to retain new counsel or file an appeal on his own behalf. 3
Further, Attorney Bell sent Freeman copies of the petition to withdraw and the no-
merit letter. Attorney Bell also provided an analysis of the issues raised in
Freeman’s petition for review.
2
Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. §9960.6(a)(10).
3
Freeman did not retain new counsel or file a brief.
5
In addition, Attorney Bell’s no-merit letter complies with Turner. It
contains a statement indicating he reviewed the proceedings affecting Freeman,
Freeman’s petition for review and the record. The no-merit letter also addresses
the issues Freeman raises on appeal. Moreover, it sets forth Attorney Bell’s
analysis of the issues and why they are meritless. In particular, the no-merit letter
explains: because Freeman was a convicted parole violator, the Board properly
determined he forfeited credit for all time he spent in good standing on parole; the
Board properly recalculated Freeman’s maximum sentence date; the Board
imposed backtime for the parole violations within the presumptive ranges and, as
such, this Court will not entertain a challenge to the propriety of the recommitment
terms; the Board did not improperly delay in issuing its revocation decision; and,
Freeman waived his right to counsel before the Board. As such, Attorney Bell
complied with Turner, and we may conduct an independent review to determine
whether Attorney Bell’s characterization of the appeal as meritless is correct.
Zerby.
Our independent examination confirms that Freeman’s contentions are
meritless.4 In his petition for review, Freeman first argues the Board erred in
improperly extending his maximum sentence date when it refused to afford him
credit for periods in which he was on parole over the prior 10 years (and in so
doing the Board “double dip[ped]”). Freeman’s Pet. for Review at 2.
4
Our review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with law, and whether necessary findings were
supported by substantial evidence. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa.
Cmwlth. 2013).
6
Contrary to Freeman’s assertion, although a technical parole violator
is entitled to credit for street time served in good standing, time spent in good
standing prior to recommitment for technical violations is not shielded from
forfeiture where the parolee subsequently commits a new crime and is recommitted
as a convicted parole violator. Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d
348 (Pa. Cmwlth. 2007). Thus, upon recommitment as a convicted parole violator,
in addition to losing all time spent at liberty during the current parole, a parolee
will also forfeit all credit received for time spent in good standing while on parole
prior to his previous recommitment as a technical parole violator. Id.; see
Melendez v. Pa. Bd. of Prob. & Parole, 944 A.2d 824 (Pa. Cmwlth. 2008) (where
parolee is recommitted as convicted parole violator, he forfeits all street time,
including street time earned in good standing prior to a prior recommitment as a
technical parole violator).
In addition, the Board has “the power to recommit a convicted parole
violator to serve the balance of the court-imposed maximum sentence if the new
crime was committed by the parolee before the expiration of the maximum
sentence originally imposed.” Knisley v. Pa. Bd. of Prob. & Parole, 362 A.2d
1146, 1148 (Pa. Cmwlth. 1976). Further, “the constitutional challenges to this
procedure [have been] rejected by this Court ….” Id.
We recognize that “[t]he Board can only require that a parolee serve
the remaining balance of his unexpired term since the Board does not have the
power to alter a judicially-imposed sentence.” Yates v. Pa. Bd. of Prob. & Parole,
48 A.3d 496, 502 (Pa. Cmwlth. 2012) (quoting Savage v. Pa. Bd. of Prob. &
7
Parole, 761 A.2d 643, 645 (Pa. Cmwlth. 2000)). However, “when a parolee is
recommitted due to criminal conviction, his maximum sentence date may be
extended to account for all street-time, regardless of good or delinquent standing.”
Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011) (en
banc) (emphasis added). The Supreme Court specifically holds the Board’s
authority to extend maximum term expiration dates under such circumstances does
not usurp the courts’ sentencing functions or violate a parolee’s due process rights.
Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).
Further, as this Court previously explained, “[t]he statutory provision
denying credit for time spent on parole … does not violate constitutional due
process … and the [prohibition] against double jeopardy ….” Bellamy v. Pa. Bd.
of Prob. & Parole (Pa. Cmwlth., No. 439 C.D. 2014, filed May 7, 2015)
(unreported), Slip Op. at 6-7, 2015 WL 5413883 at *4 (citing Young v. Bd. of
Prob. & Parole, 409 A.2d 843 (Pa. 1979); Commonwealth ex rel. Rambeau v.
Rundle, 314 A.2d 842 (Pa. 1973); Choice v. Pa. Bd. of Parole, 448 F. Supp. 294
(M.D. Pa. 1977)); see also Monroe v. Pa. Bd. of Prob. & Parole, 555 A.2d 295 (Pa.
Cmwlth. 1989) (rejecting parolee’s arguments that Board’s order, which denied
him credit for time at liberty on parole, improperly extended his maximum
sentence in violation of his constitutional rights against double jeopardy and
offending due process).
Here, the Board properly recalculated Freeman’s maximum sentence
date as May 5, 2023. In particular, the Board re-paroled Freeman on June 28,
2012, with a maximum sentence date of January 28, 2018. C.R. at 36-42. Thus,
8
Freeman had 2,040 days remaining on his original sentence at the time of re-
parole. In light of his recommitment as a convicted parole violator, the Board had
authority to recalculate Freeman’s sentence to reflect that he received no credit for
the period in which he was at liberty on parole. 61 Pa. C.S. §6138(a)(2). The
Board did not grant Freeman credit for time at liberty on parole. C.R. at 85.
Further, Freeman was previously on parole from June 14, 2004 to
October 25, 2005 (498 Days), and from December 13, 2006 to July 9, 2010 (1,304
Days), a total of 1,802 days. C.R. at 16, 17, 26, 27. Adding the 1,802 days of prior
parole liberty forfeited (as a result of his subsequent convicted parole violation),
Freeman had 3,842 days remaining on his sentence based on his recommitment.
C.R. at 94.
On October 27, 2012, police arrested Freeman on the new criminal
charges. C.R. at 44. The Board lodged its detainer against Freeman on that date.
C.R. at 43. The common pleas court released Freeman on bail on January 10,
2013, but he remained confined on the Board detainer. C.R. at 58. Freeman was
convicted on the new criminal charge on May 5, 2015, and the common pleas court
sentenced him to a term of probation on that date. C.R. at 55.
Based on these facts, the Board afforded Freeman 920 days of credit
on his original sentence for the entire period he was incarcerated from October 27,
2012 to May 5, 2015, because he was confined solely on the Board’s detainer, and
because his time served on the new charge could not be credited against the new
sentence of probation. C.R. at 94; see Gaito. Subtracting the 920 days of credit
9
the Board afforded Freeman from the time he had remaining left 2,922 days
remaining on his sentence. C.R. at 94. Also, after Freeman received a sentence of
probation on his new conviction, he became available to begin serving backtime on
May 5, 2015, the date he was returned to the Board’s custody. Id.5 Adding 2,922
days to that date, yielded a new maximum sentence date of May 5, 2023. Id.
Freeman’s argument to the contrary lacks merit.6
In addition, Freeman asserts the Board violated his right to due
process when it exceeded the presumptive ranges in imposing backtime for his
parole violations without providing its reasons for doing so. Contrary to this
assertion, “[t]his [C]ourt will not interfere with the Board’s discretion where the
parole violations are supported by substantial evidence and the amount of backtime
imposed … is within the applicable presumptive range.” Davis v. Pa. Bd. of Prob.
& Parole, 841 A.2d 148, 151-52 (Pa. Cmwlth. 2004) (footnote omitted). Indeed,
5
Citing Terrell v. Jacobs, 390 A.2d 1379 (Pa. Cmwlth. 1978), Freeman asserts the Board
should have recalculated his maximum sentence date from October 27, 2012, the date of the
Board’s warrant, rather than on May 5, 2015, the date he was returned to Board custody on his
original sentence. As set forth above, however, the Board here properly afforded Freeman credit
for the period from October 27, 2012 through May 5, 2015 (a total of 920 days) toward his
original sentence because he satisfied bail requirements and was confined solely on the Board’s
detainer. Thus, Freeman received credit toward his original sentence for the period he
references.
6
To the extent Freeman argues the Board was required to give him notice that his
recommitment as a convicted parole violator would result in the loss of credit for the time he was
at liberty on parole or “street time,” this claim also lacks merit. A parolee who is recommitted as
a convicted parole violator forfeits the time spent on parole unless the Board exercises its
discretion to award credit, which it declined to do here. See Palmer v. Pa. Bd. of Prob. & Parole,
704 A.2d 195 (Pa. Cmwlth. 1997). Further, as Attorney Bell states in his no-merit letter,
Freeman did, in fact, receive notice of the consequences of his recommitment for a new
conviction at the time of his re-parole. Indeed, the “Conditions Governing Parole/Reparole”
form Freeman signed stated that if he was convicted of a crime while on parole or reparole, the
Board had authority to recommit him to serve the balance of his sentence “with no credit for time
at liberty on parole.” C.R. at 38. Freeman’s claim to the contrary lacks merit.
10
“[a]s long as the period of recommitment is within the presumptive range for the
violation, the Commonwealth Court will not entertain challenges to the propriety
of the term of recommitment.” Smith v. Pa. Bd. of Prob. & Parole, 574 A.2d 558,
560 (Pa. 1990).
The presumptive range for the crime Freeman was convicted of,
intentional possession of a controlled substance by a person not registered
(misdemeanor), is three to six months. 37 Pa. Code §75.2. Further, the
presumptive range for Freeman’s technical parole violation, a violation of special
condition #7 (curfew violation), is 3 to 18 months. 37 Pa. Code §75.4. The Board
here imposed concurrent terms of six months’ backtime on Freeman’s convicted
parole violation and his technical parole violation. C.R. at 96. Because the
backtime imposed is well within the presumptive range for Freeman’s admitted
parole violations, this issue is meritless. Smith; Davis.
Freeman also contends the Board erred by delay in issuing its
recommitment and recalculation decision. Contrary to this assertion, the Board’s
decision recommitting him as a convicted parole violator and recalculating his
maximum sentence date was issued approximately three months after Freeman
admitted to the convicted parole violation. C.R. at 81, 96-97. Freeman cites no
authority in support of his argument that the Board was required to issue its
revocation decision in a specified timeframe.7 Additionally, he does not explain
how he suffered prejudice as a result of any delay. As such, this issue lacks merit.
7
To that end, in Sanders v. Pennsylvania Board of Probation and Parole, 651 A.2d 663
(Pa. Cmwlth. 1994), a mandamus action in our original jurisdiction for the Board to issue its
initial decision (known as the green sheet), we addressed whether the charges could be
invalidated where the Board did not act in a timely manner. Ultimately, we held that where
11
Finally, to the extent Freeman asserts he should have been afforded
counsel for purposes of his parole revocation proceeding, Freeman waived his right
to counsel, along with his right to a revocation hearing, on both his technical and
convicted parole violations. C.R. at 80, 81. And, while Freeman had a right to
assistance of counsel in connection with his administrative appeal,8 there is no
indication in the record that he requested the assistance of counsel prior to filing an
administrative appeal on his own behalf.9
neither the former Parole Act, Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §§ 331.1-
331.34, repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147, nor the Board’s
regulations, 37 Pa. Code §§61.1-77.1, provided a timeframe within which the Board had to issue
a green sheet decision, and where the parolee admittedly suffered no harm because of the delay,
there was no basis to dismiss the Board’s allegations underlying the revocation hearing. In doing
so we stated:
[N]o basis exists for requiring the Board to dismiss with prejudice
the allegations underlying the revocation hearing. Neither the
[former Parole Act], nor the Board’s regulations provide a time
frame within which the Board must issue a green sheet decision.
Hence, the only remedy available to [the parolee] is an order from
this Court commanding the Board to issue its decision, which it has
already done. Of particular note is this Court’s decision in
Morganelli v. Casey, [646 A.2d 744 (Pa. Cmwlth. 1994)], stating
that the failure of an administrative agency or a court to decide a
case within a reasonable time, where no time limit is statutorily
prescribed, is subject to a mandamus order commanding the
issuance of a decision. This principle applies with equal force to
the Board in [this] matter where no statutory provision prescribes a
time limit within which the Board must issue its revocation
decision.
Sanders, 651 A.2d at 667.
8
See Larkin v. Pa. Bd. of Prob. & Parole, 555 A.2d 954 (Pa. Cmwlth. 1989).
9
Attached to Freeman’s petition for review, but not of record, is a request for
appointment of counsel in connection with his administrative appeal. In that document, Freeman
noted that at the time he requested the assistance of counsel he already filed his administrative
appeal with the Board.
12
For all these reasons, we grant Attorney Bell’s petition for leave to
withdraw as counsel, and we affirm the Board’s order denying administrative
relief.
ROBERT SIMPSON, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Freeman, :
Petitioner :
:
v. : No. 528 C.D. 2016
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 20th day of December, 2016, we GRANT Daniel C.
Bell, Esquire’s petition to withdraw as counsel, and we AFFIRM the order of the
Pennsylvania Board of Probation and Parole.
ROBERT SIMPSON, Judge