IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ernest Baxter, :
Petitioner :
:
v. : No. 1059 C.D. 2017
: Submitted: January 5, 2018
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: April 16, 2018
Ernest Baxter petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal. Baxter’s appointed counsel, Richard C. Shiptoski, Esquire (Counsel), has
filed an application for leave to withdraw as counsel. For the reasons that follow,
we grant Counsel’s request to withdraw and affirm the Board’s decision.
On June 28, 2015, Baxter was released on parole from the State
Correctional Institution (SCI) at Pine Grove. Certified Record at 65 (C.R. __). At
the time of his parole, Baxter had 335 days remaining on his original sentence; his
maximum sentence date was May 28, 2016. C.R. 68. On November 4, 2015, Baxter
was arrested in Upper Darby Township and charged with several drug-related
offenses. C.R. 72-77. On that same day, the Board issued a warrant to commit and
detain Baxter for violating a condition of his parole. On November 5, 2015, the
Delaware County Court of Common Pleas set bail on the new criminal charges at
$75,000.
Baxter waived his right to a detention hearing and admitted to violating
his parole by being in Upper Darby Township without prior written permission from
parole supervision staff. As a result, on December 23, 2015, the Board recommitted
Baxter as a technical parole violator to serve six months for leaving the Philadelphia
West Division District without permission. He remained in detention pending
disposition of the new criminal charges.
Thereafter, Baxter pled guilty to four counts of felony possession with
intent to distribute. He was sentenced to 30 to 60 months confinement followed by
three years probation. C.R. 115.1
On June 29, 2016, the Board issued an order modifying its December
23, 2015, recommitment order. The new order recommitted Baxter as a technical
parole violator to serve six months and as a convicted parole violator to serve,
concurrently, his unexpired term on his original charges, a period of 335 days.
Baxter’s maximum sentence date was recalculated to February 5, 2017.
Baxter filed an administrative appeal, challenging the recalculation of
his maximum sentence date, which did not credit him for time spent at liberty on
parole. On June 15, 2017, the Board’s Chief Counsel, as Administrative Review
Designee, affirmed the Board’s June 29, 2016, order for the following reasons:
You were released on parole on June 28, 2015, with a maximum
sentence date of May 28, 2016. At that point, 335 days remained
on your sentence. You were detained by the Board for 1 day
1
Baxter was detained on the new criminal charges from November 5, 2015, when bail was set, to
the date of sentencing, March 8, 2016. Those 124 days were credited to Baxter’s sentence on the
new charges.
2
from November 4, 2015 to November 5, 2015. You were
detained because of new criminal charges from November 5,
2015 until you were sentenced on March 8, 2016. That period
will be credited to your new sentence.
Because you were recommitted as a convicted parole violator,
you are required to serve the remainder of your original term and
are not entitled to credit for any periods of time you were at
liberty on parole. 61 Pa. C.S. §6138(a)(2). Adding 334 (335-1)
days to March 8, 2016 results in a parole violation maximum date
of February 5, 2017. Accordingly, your challenge to your parole
violation maximum date is DENIED and the Board decision []
mailed June 29, 2016 is AFFIRMED as to the parole violation
maximum date.
To the extent you claim that the Board abused its discretion by
failing to award you credit for time at liberty on parole, please be
advised that a decision setting forth the reason will be mailed to
you under separate cover. If you disagree with that decision, you
may seek administrative relief from that decision.
C.R. 136. In a separate decision issued June 16, 2017, the Board explained that it
did not award credit to Baxter for his time spent at liberty on parole because of his
“prior history of supervision failures.” C.R. 138. Baxter did not seek administrative
relief from this second decision.
On August 10, 2017, Baxter, pro se, filed a petition for review with this
Court.2 In his petition, Baxter asserts, without any specificity, that the Board’s
determinations are “in error and in violation of his constitutional rights and the laws
of this Honorable Commonwealth Court.” Amended Petition for Review ¶15 at 3.
On October 30, 2017, Baxter’s court-appointed Counsel filed a petition to withdraw
2
Pursuant to this Court’s order entered August 10, 2017, Baxter’s petition for review is deemed
timely filed.
3
from representation and an accompanying Anders brief3 explaining why there is no
legal basis for Baxter’s appeal.
In Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), our Supreme
Court set forth the technical requirements appointed counsel must meet in order to
withdraw from representation. Pursuant to Turner, once appointed counsel has
reviewed the case and determined that the petitioner’s claims are meritless, he must:
[t]hen submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which the petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). Withdrawing counsel may
submit an Anders brief instead of a no-merit letter. Zerby, 964 A.2d at 960. If the
requirements of Turner are met, this Court must then consider the merits of the
petitioner’s claim. Zerby, 964 A.2d at 960.
In the instant case, Counsel has filed an Anders brief detailing his
review of Baxter’s criminal record and explaining the basis for his legal conclusion
that Baxter’s issues for review lack merit. The record establishes that Counsel sent
Baxter a copy of the Anders brief; a copy of his petition to withdraw; and a letter
advising Baxter of his right to obtain new counsel or proceed pro se. Because
3
The brief Counsel submitted is commonly referred to as an “Anders brief,” in reference to the
United States Supreme Court’s seminal decision in Anders v. California, 368 U.S. 738 (1967).
Anders outlined the steps appointed counsel must take in order to withdraw from representation of
a criminal defendant.
4
Counsel has complied with the requirements of Turner, we now consider the merits
of Baxter’s petition.4
As observed, Baxter asserts without any specificity that the Board erred
and violated his constitutional rights. In his administrative appeal, Baxter argued
that the Board erred in: (1) denying him credit for time spent at liberty on parole; (2)
recalculating his judicially imposed maximum sentence date from May 28, 2016, to
February 5, 2017; and (3) misapplying 37 Pa. Code §§75.1 and 75.2 with respect to
the presumptive range for backtime to be served. For purposes of our analysis, we
presume Baxter’s petition for review raises those same issues before this Court, and
we address them in turn.
In his first issue, Baxter objects to the Board’s decision to deny him
credit for the time he spent at liberty on parole, also referred to as “street time.” The
Board’s June 16, 2017, decision stated as follows:
THIS DECISION INVOLVES AN ISSUE THAT IS SUBJECT
TO THE BOARD’S ADMINISTRATIVE REMEDIES
PROCESS. SEE 37 PA. CODE SEC. 73.[5] FAILURE TO
4
This Court’s review determines whether the Board’s adjudication is supported by substantial
evidence, whether an error of law has been committed, or whether constitutional rights have been
violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v. Pennsylvania
Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
5
The Board’s regulation provides:
(b) Petitions for administrative review.
(1) A parolee, by counsel unless unrepresented, may petition for
administrative review under this subsection of determinations relating to
revocation decisions which are not otherwise appealable under subsection
(a). Petitions for administrative review shall be received at the Board’s
Central Office within 30 days of the mailing date of the Board’s
determination. When a timely petition has been filed, the determination will
not be deemed final for purposes of appeal to a court until the Board has
5
ADMINISTRATIVELY APPEAL THE DECISION MAY
AFFECT YOUR LEGAL RIGHTS. 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.
C.R. 138. Because Baxter did not seek administrative review of this decision, he
cannot challenge it here. Although he attached the Board’s June 16, 2017, decision
to the instant petition for review, its validity is not before this Court because Baxter
did not exhaust his administrative remedies.
Even if Baxter had preserved his challenge to the Board’s denial of
credit, there is no merit to his argument. Section 6138(a) of the Prisons and Parole
Code governs the award of credit for street time and provides, in relevant part:
(a)(2.1) The board 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).
(3) The board may, in its discretion, reparole whenever, in its
opinion, the best interests of the inmate justify or require the
mailed its response to the petition for administrative review. This subsection
supersedes 1 Pa. Code § 35.226.
37 Pa. Code §73(b).
6
inmate’s release on parole and it does not appear that the interests
of the Commonwealth will be injured thereby.
61 Pa. C.S. §6138(a). While on parole, Baxter did not commit a disqualifying crime
under Section 6138(a)(2.1)(i). Nor was he subject to a federal removal order for
purposes of Section 6138(a)(2.1)(ii). Thus, the decision to award credit remained
within the Board’s discretion. The Board exercised that discretion by choosing not
to grant Baxter any credit for his street time.
In Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d
466 (Pa. 2017), our Supreme Court held that the Board must articulate the basis for
its decision to deny credit to a convicted parole violator for his time spent at liberty
on parole. Here, the Board complied with that mandate in its decision of June 16,
2017, by stating that it was not crediting Baxter for his street time due to his “prior
history of supervision failures.” C.R. 138. With that statement, the Board
discharged its obligation under Section 6138(a)(2.1).
Next, Baxter argues that the Board erred when it altered his judicially
imposed maximum sentence date from May 28, 2016, to February 5, 2017. He
maintains that the Board does not have such authority. We disagree.
The Board has authority to deny credit for time spent at liberty on parole
and to revise the maximum sentence date set by the sentencing judge where parole
is violated. Young v. Pennsylvania Board of Probation and Parole, 409 A.2d 843,
848 (Pa. 1979) (“a denial of credit does not constitute an enhancement of a sentence
so as to raise federal constitutional implications [and]…does not effect the sentence
in such a manner as would be offensive to the doctrine of separation of powers.”).
Indeed, the Board may “require that a parolee serve the remaining balance of his
unexpired term.” Savage v. Pennsylvania Board of Probation and Parole, 761 A.2d
7
643, 645 (Pa. Cmwlth. 2000). In short, the Board did not err when it recalculated
Baxter’s maximum date by adding 334 days, i.e., the remaining balance of his
unexpired term.
Finally, Baxter argues that the Board erred in recommitting him to a
period of backtime in excess of the presumptive range. Again, we disagree.
The Board’s regulation provides:
(a) Presumptive ranges of parole backtime to be served will be
utilized if a parolee is convicted of a new criminal offense while
on parole and the Board orders recommitment as a convicted
parole violator after the appropriate revocation hearing.
(b) The presumptive ranges of parole backtime are intended to
structure the discretion of the Board while allowing for
individual circumstances in terms of mitigation and aggravation
to be considered in the final decision.
(c) The Board may deviate from the presumptive range or
determine that recommitment should not occur, provided written
justification is given.
(d) The presumptive ranges are intended to directly relate to the
severity of the crime for which the parolee has been convicted.
(e) The severity ranking of crimes listed in § 75.2 (relating to
presumptive ranges for convicted parole violations) is not
intended to be exhaustive, and the most closely related crime
category in terms of severity and the presumptive range will be
followed if the specific crime which resulted in conviction is not
contained within the listing.
37 Pa. Code §75.1 (emphasis added).
The “[p]resumptive ranges for convicted parole violators” are found in
Section 75.2 of the Board’s regulations, 37 Pa. Code §75.2. It provides, “[i]f the
Board orders the recommitment of a parolee as a convicted parole violator, the
8
parolee shall be recommitted to serve an additional part of the term which the parolee
would have been compelled to serve had he not been paroled, in accordance with the
[prescribed] presumptive ranges.” 37 Pa. Code §75.2.
The presumptive range for manufacture, delivery, or possession with
intent to manufacture or deliver depends on the grading of the offense, which is
determined, in part, by the drug in question. Here, Baxter pled guilty to two counts
involving heroin, one count involving fentanyl, and one count involving cocaine.
C.R. 76-77. Fentanyl and heroin are Schedule I drugs, which carry a statutory
maximum sentence of 15 years. Section 13(f)(1) of The Controlled Substance, Drug,
Device and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 233, as amended,
35 P.S. §780-113(f)(1). Drug Act violations with a statutory maximum sentence of
15 years have a presumptive range of “24 months to 36 months.” 37 Pa. Code §75.2.
Cocaine is a Schedule II drug, which carries a statutory maximum sentence of ten
years. Section 13(f)(1.1) of the Drug Act, 35 P.S. §780-113(f)(1.1). Drug Act
violations with a statutory maximum sentence of ten years have a presumptive range
of “18 months to 24 months.” 37 Pa. Code §75.2.
Baxter was recommitted for a period of 335 days, i.e., ten months and
29 days. Because the recommitment period imposed by the Board was less than
either of the applicable presumptive ranges, i.e., 18 to 24 months or 24 to 36 months,
it is not subject to challenge. Smith v. Pennsylvania Board of Probation and Parole,
574 A.2d 558, 560 (Pa. 1990) (“As 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.”).
9
For these reasons, we conclude that Counsel has fulfilled the
requirements of Turner and our independent review of the record confirms that
Baxter’s appeal lacks merit. Accordingly, we grant Counsel’s application for leave
to withdraw and affirm the Board’s decision.
______________________________________
MARY HANNAH LEAVITT, President Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ernest Baxter, :
Petitioner :
:
v. : No. 1059 C.D. 2017
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 16th day of April, 2018, the order of the Pennsylvania
Board of Probation and Parole, dated June 15, 2017, is AFFIRMED and the
application for leave to withdraw as counsel filed by Richard C. Shiptoski, Esquire,
is GRANTED.
______________________________________
MARY HANNAH LEAVITT, President Judge