IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shareema Moore, :
Petitioner :
:
v. : No. 411 C.D. 2018
: Submitted: September 14, 2018
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: December 6, 2018
Petitioner Shareema Moore1 (Moore) petitions for review of an order
of the Pennsylvania Board of Probation and Parole (Board). The Board denied
Moore’s petition for administrative relief, in which she sought to challenge the
Board’s recalculation of her maximum sentence date. Moore’s counsel, R. Benjamin
Sperry, Esquire (Counsel), filed a motion to withdraw as counsel. Counsel asserts,
as expressed in his “no-merit” letter, that the issues Moore raises in her petition for
review are without merit. We now grant Counsel’s motion to withdraw as counsel
and affirm the order of the Board.
1
Petitioner is also known as Nichola Hewlett, and the certified record includes references
to Petitioner as both Shareema Moore and Nichola Hewlett.
Moore had been incarcerated at a State Correctional Institution when
the Board granted her parole and released her on March 21, 2014. (Certified Record
(C.R.) at 30.) At the time of her parole, Moore had a maximum sentence date of
March 3, 2017. (Id. at 38.) On January 19, 2015, the Pennsylvania State Police
arrested Moore and charged her with several offenses related to an incident involving
retail theft and aggravated assault. (Id. at 43.) On that same date, the Board issued
a detainer against Moore. (Id. at 50.) By Board action recorded on
February 19, 2015, the Board recommitted Moore as a Technical Parole Violator to
serve 6 months at a State Correctional Institution. (Id. at 54.) Moore posted bail on
August 24, 2015. (Id. at 145.) On October 27, 2016, the Court of Common Pleas of
Delaware County accepted Moore’s plea of nolo contendere on a charge of robbery.
(Id. at 91.) The sentencing judge sentenced Moore to a maximum of no more than
“2 years less a day.” (Id. at 85.) The sentencing order provides that Moore shall
receive “no credit for time served up to [October 28, 2016].” (Id.) By Board action
recorded on January 31, 2017, the Board recommitted Moore as a Convicted Parole
Violator to serve 36 months or her unexpired term, whichever is less, concurrently,
when available, upon Moore’s completion of parole from her county sentence and
her return to a State Correctional Institution. (Id. at 108.) Moore was returned to
the custody of a State Correctional Institution on September 11, 2017. (Id. at 113.)
By Board action recorded on September 29, 2017, the Board recalculated Moore’s
maximum sentence date to June 21, 2019. (Id.)
Moore then filed an administrative appeal from the Board’s decision.
(Id. at 115.) In that appeal, Moore challenged the Board’s calculation of her
sentence, alleging, inter alia, that she should have received credit to her new
sentence for the period beginning on January 19, 2015, pending the resolution of her
2
criminal charges. (Id. at 116-17.) The Board denied Moore’s administrative appeal,
reasoning:
The [B]oard paroled you to your state detainer
sentence on March 21, 2014 with a max date of
March 3, 2017. This left you with a total of 1078 days
remaining on your sentence at the time of parole. The
Board’s decision to recommit you as a convicted parole
violator authorized the recalculation of your sentence to
reflect that you receive[d] no credit for the time you were
at liberty on parole. 61 Pa. C.S. § 6138(a)(2). In this case,
the [B]oard did not award you credit for time at liberty on
parole. This means you still had a total of 1078 days
remaining on your sentence based on your recommitment.
On January 19, 2015 the [B]oard lodged its detainer
against you. Also on January 19, 2015 you were arrested
for new criminal charges in the Court of Common Pleas of
Delaware County at docket number 1022-2015. You
posted bail on August 24, 2015. You were sentenced on
October 27, 2016 to a county term and granted parole on
September 11, 2017.
Based on these facts, the [B]oard awarded you
backtime credit from August 24, 2015 to October 27, 2016
(430 days). Subtracting this 430 days, means you still had
a total of 648 days remaining on your original sentence.
The Prisons and Parole Code[2] provides that
convicted parole violators who are paroled from a state
correctional institution and then receive a county sentence
of confinement on their new charges will not become
available to commence service of the original sentence
until parole from, or completion of the county sentence.
In this case September 11, 2017 is your effective date
because that is when you were paroled from your
Delaware County charges at 1022-2015. Adding 648 days
to that date yields a new maximum date of June 21, 2019[.]
(Id. at 145-46.) Moore then filed a petition for review in this Court.
2
61 Pa. C.S. §§ 101-6309.
3
We begin by addressing Counsel’s request to withdraw from
representation of Moore. When no constitutional right to counsel is involved in a
probation and parole case, an attorney seeking to withdraw from representing a
prisoner may file a no-merit letter, as compared to an Anders brief.3 In Hughes v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this
Court held that a constitutional right to counsel in a probation and parole matter
arises only when the prisoner’s case includes:
“[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 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).
Moore has not suggested that she did not commit the underlying crimes of her new
criminal conviction, nor does she suggest reasons constituting justification or
3
In Anders v. California, 386 U.S. 738 (1967), the Supreme Court of the United States
held that in order for a criminal defendant’s counsel to withdraw from representing his client in an
appeal, the counsel must assert that the case is completely frivolous, as compared to presenting an
absence of merit. An appeal is completely or “wholly” frivolous when there are no factual or legal
justifications that support the appeal. Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758, 761 (Pa.
Cmwlth. 1985). In seeking to withdraw, counsel must submit a petition to withdraw and a brief
“referring to anything in the record that might arguably support the appeal.” Cmwlth. v.
Baker, 239 A.2d 201, 202 (Pa. 1968) (citing Anders, 386 U.S. at 744). The Supreme Court of
Pennsylvania, however, has held that in matters that are collateral to an underlying criminal
proceeding, such as parole matters, a counsel seeking to withdraw from his representation of a
client may file a “no-merit” letter that includes information describing the extent and nature of the
counsel’s review, listing the issues the client wants to raise, and informing the court of the reasons
why counsel believes the issues have no merit. Cmwlth. v. Turner, 544 A.2d 927, 928-29
(Pa. 1988).
4
mitigation for her new criminal conviction. Thus, Moore only has a statutory right
to counsel under Section 6(a)(10) of the Public Defender Act.4
In order to satisfy the procedural requirements associated with no-merit
letters, counsel must: (1) notify the parolee that he has submitted to the Court a
request to withdraw; (2) provide the parolee with a copy of counsel’s no-merit letter;
and (3) advise the parolee that he has the right to obtain new counsel and to submit
to the Court a brief of his own, raising any arguments that he may believe are
meritorious.5 Reavis v. Pa. Bd. of Prob. and Parole, 909 A.2d 28, 33
(Pa. Cmwlth. 2006). In seeking to withdraw, this Court has consistently required an
attorney to include the following descriptive information in a no-merit letter: (1) the
nature and extent of counsel’s review of the case; (2) the issues the parolee wants to
raise; and (3) the analysis counsel used in reaching his conclusion that the issues are
meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). Before
evaluating the merits of Moore’s challenge, we must first evaluate Counsel’s
no-merit letter to determine whether it complies with the requirements for
withdrawal applications.
In her petition for review, Moore challenged the Board’s recalculation
of her sentence because she did not receive credit for the period between
January 19, 2015, and August 24, 2015—the date Moore was arrested until the date
she posted bail. Counsel’s no-merit letter adequately identifies this issue, discusses
his review of Moore’s case, and describes his analysis in reaching his conclusion
that this issue as brought before this Court has no merit. Further, Counsel provides
4
Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).
5
Counsel served Moore with his motion for leave to withdraw and his no-merit letter. In
the no-merit letter, Counsel advised Moore of her right to retain counsel and to file a brief on her
own behalf. Thus, Counsel has complied with these requirements.
5
a satisfactory summary of Moore’s parole and conviction history as it relates to her
underlying challenge. Counsel’s no-merit letter, therefore, meets the requirements
set forth in Zerby. We will now address the question of whether Counsel is correct
that Moore’s appeal lacks merit.
In his no-merit letter, Counsel refers the Court to Commonwealth v.
Mann, 957 A.2d 746 (Pa. Super. 2008), where the Superior Court discussed, inter
alia, the precedent from the Supreme Court concerning credit for time served. Mann
is one case in a line of cases that expound on Gaito v. Pennsylvania Board of
Probation and Parole, 412 A.2d 568 (Pa. 1980), which sets forth the general rule
concerning allocation of credit for convicted parole violators who receive new
sentences. In Gaito, our Supreme Court stated:
[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
bail requirements on the new criminal charges, then the
time spent in custody shall be credited to his new sentence.
Gaito, 412 A.2d at 571 (emphasis added).
Our Supreme Court developed a narrow exception to the rule set forth
in Gaito, applicable when the pre-sentence confinement is longer than the maximum
term of the new sentence, which provides: “[W]here 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. Pa. Bd.
of Prob. and Parole, 840 A.2d 299, 309 (Pa. 2003). Accordingly, where a defendant
is awaiting sentencing and is confined under both the Board’s warrant and new
criminal charges, that period of confinement should be allocated to the new criminal
6
sentence, so long as the period of confinement is shorter than the maximum term of
the new sentence. Hammonds v. Pa. Bd. of Prob. and Parole, 143 A.3d 994, 998-99
(Pa. Cmwlth. 2016). “[W]hen it is not possible to award all of the credit to the new
sentence because the period of pre-sentence incarceration exceeds the maximum
term of the new sentence, credit must be applied to the parolee’s original sentence.”
Id. at 998.
Analyzing the matter before the Court based upon the framework set
forth above, it is clear that the Board was required to credit Moore’s original
sentence 430 days for the time period from August 24, 2015 (i.e., the date on which
she posted bail), to October 27, 2016 (i.e., the date on which she was sentenced on
her new criminal charges), because during that time period she was held in custody
only on the Board’s detainer. The Board, in fact, credited Moore for that time.
Moore, however, appears to argue that the Board should have credited Moore for the
time that she was in custody from January 19, 2015, through August 24, 2015, when
she was being held both on the Board’s detainer and because she failed to post bail.
Under Gaito and Martin, the Board was not required to credit Moore for that period
of approximately seven months between January 19, 2015, and August 24, 2015,
because the period of time was less than the period of her sentence for her new
conviction. Under Gaito and Martin, any credit to which Moore may have been
entitled for that period should have been credited to the sentence on her new criminal
conviction. When sentencing Moore on her new criminal conviction, however, the
sentencing judge expressly declined to credit Moore on her new sentence for any
time served up to and including her date of sentence. (C.R. at 85.)
Challenges concerning the failure to award a defendant credit on a new
sentence for time served prior to trial on the charges relating to that sentence,
7
however, concern the legality of the sentence. Cmwlth. v. Hollawell, 604 A.2d 723,
725 (Pa. Super. 1992). “[A] challenge to the legality of a sentence is properly raised
before the sentencing court or on direct appeal to the Superior Court.” Aviles v. Pa.
Dep’t of Corr., 875 A.2d 1209, 1214 (Pa. Cmwlth. 2005). A defendant may also
seek redress under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-9546, for the
imposition of a sentence that is greater than lawfully permissible.6
Based on the above discussion, Moore’s challenge of the Board’s
failure to award her credit for the time she was in custody before sentencing is a
challenge to the legality of the sentence, which must be addressed by the common
pleas court or on appeal to the Superior Court. Thus, we agree with Counsel that
Moore’s challenge before this Court to the Board’s recalculation of her maximum
sentence date has no merit.
Accordingly, we will grant Counsel’s motion to withdraw. Moreover,
because we have concluded that the Board correctly dismissed Moore’s petition for
administrative relief, we conclude that her petition for review lacks merit. We,
therefore, affirm the order of the Board.
P. KEVIN BROBSON, Judge
6
Moreover, while the Department of Corrections has a duty to credit inmates “for all
statutorily mandated periods of incarceration,” the Department of Corrections, as part of the
executive branch, “lacks the power to adjudicate the legality of a sentence or to add or delete
sentencing conditions.” McCray v. Pa. Dep’t of Corr., 872 A.2d 1127, 1133 (Pa. 2005).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shareema Moore, :
Petitioner :
:
v. : No. 411 C.D. 2018
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 6th day of December, 2018, the motion to withdraw as
counsel filed by R. Benjamin Sperry, Esquire, is GRANTED, and the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.
P. KEVIN BROBSON, Judge