IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Zachary T. Evans, :
Petitioner :
:
v. : No. 618 C.D. 2018
: SUBMITTED: October 26, 2018
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: January 16, 2019
Zachary Evans (Petitioner) petitions for review of the Pennsylvania Board of
Probation and Parole’s (Board) March 14, 2018 Order affirming its October 3, 2017
decision recommitting Petitioner as a convicted parole violator (CPV) to serve 36
months of backtime and recalculating his maximum parole violation date as September
21, 2023. In response to this Petition for Review, Petitioner’s appointed counsel, Kent
D. Watkins, Esquire (Counsel), submitted an Application to Withdraw as Counsel
(Application to Withdraw), concluding that the arguments raised in the Petition for
Review are frivolous and without merit. After thorough review, we deny Counsel’s
Application to Withdraw and direct him to file either a proper no-merit letter1 or an
advocate’s brief within 45 days.
1
Such letters are referred to by various names by courts of this
Commonwealth. See, e.g., Commonwealth v. Porter, [. . .] 728 A.2d
890, 893 & n. 2 ([Pa.] 1999) (referring to such a letter as a “‘no merit’
letter” and noting that such a letter is also commonly referred to as a
“Finley letter,” referring to the Superior Court case Commonwealth v.
The relevant facts are as follows: On November 18, 2003, Petitioner pled guilty
in the Court of Common Pleas of Lancaster County to Robbery, Criminal Conspiracy
to Commit Robbery, Aggravated Assault, and Criminal Conspiracy to Commit
Aggravated Assault. Certified Record (C.R.) at 1-6. Petitioner received an aggregate
carceral sentence of 10 to 20 years in state prison. Id. Petitioner was subsequently
paroled on December 20, 2012, at which point his maximum date was February 9,
2022.2 Id. at 8-13.
On May 31, 2014, Petitioner absconded from an inpatient drug treatment center,
where the Board had ordered he reside due to his drug use after being paroled. Id. at
20-21. Consequently, the Board declared Petitioner delinquent on June 4, 2014. Id. at
22. Petitioner was then arrested in Harrisburg on October 14, 2014, and charged with
Unlawful Possession of a Controlled Substance and Use or Possession with Intent to
Use Drug Paraphernalia, prompting the Board to issue a detainer that same day. Id. at
26-32. Petitioner waived his right to a hearing, as well as to counsel, and, on November
17, 2014, Petitioner was recommitted by the Board to serve 6 months of backtime as a
technical parole violator (TPV). Id. at 33-53. In addition, the Board extended
Petitioner’s maximum date to June 25, 2022, in order to account for the amount of time
that had elapsed between his flight from the drug treatment center and his subsequent
arrest. Id. at 54-55.
Finley,[. . .] 479 A.2d 568 ([Pa. Super.] 1984)); Zerby v. Shanon, 964
A.2d 956, 960 (Pa. Cmwlth. 2009) (“Turner letter”) [referring to the
Pennsylvania Supreme Court case Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988)]; Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa.
Super. 2007) (“Turner/Finley letter”). In this opinion, we shall refer to
such letters as no-merit letters.
Hughes v. Pennsylvania Bd. of Prob. & Parole, 977 A.2d 19, 25 n.2 (Pa. Cmwlth. 2009).
2
Petitioner received credit for time served between arrest and sentencing.
2
Petitioner pled guilty in a Harrisburg Magisterial District Court on November
17, 2014, to two counts of Unlawful Possession of a Controlled Substance and one
count of Use or Possession with Intent to Use Drug Paraphernalia, and was fined as a
result. Id. at 56-58, 63. Petitioner was then transferred to Board custody. Id. at 59.
Despite his guilty plea, the Board declined to impose any additional sanctions upon
Petitioner and paroled him on April 15, 2015. Id. at 65-71.
On November 11, 2015, Petitioner was arrested in Reading, Pennsylvania, and
charged with Possession with Intent to Deliver, Unlawful Possession of a Controlled
Substance, and Resisting Arrest. Id. at 90. The Board then unsuccessfully attempted to
contact Petitioner on November 13, 2015, prompting the Board to declare him
delinquent on November 20, 2015. Id. at 72, 90, 96. Petitioner was arrested again in
Reading on March 29, 2016, and charged with two counts of Possession with Intent to
Deliver and one count of Unlawful Possession of a Controlled Substance. Again, the
Board was unable to locate him until September 17, 2016, when police in Newark, New
Jersey, notified the Board that Petitioner was undergoing surgery at Newark Beth Israel
Hospital for a gunshot wound he had recently sustained in Reading. Id. at 97, 102-09,
121.3 The Board issued a warrant for Petitioner’s arrest that same day, and he was
thereafter transferred to the Board’s custody after being discharged from the hospital.
Id. at 79, 87.
Petitioner waived his right to a parole revocation hearing and counsel on October
19, 2016, and admitted to having committed technical parole violations (i.e., failure to
report and leaving the district without authorization). Id. at 88-91. On December 21,
2016, the Board ordered Petitioner to be detained pending disposition of the charges
arising from his March 2016 arrest. Id. at 124. On February 13, 2017, the Board ordered
3
The record does not indicate why Petitioner was not taken into custody after these two
arrests.
3
Petitioner to serve 9 months of backtime as a TPV, due to the aforementioned,
undisputed technical violations, recalculating his maximum date as April 24, 2023, and
stating that Petitioner would be automatically reparoled on June 17, 2017, “PENDING
RESOLUTION OF OUTSTANDING CRIMINAL CHARGES.” Id. at 125-27.
On May 8, 2017, Petitioner pled guilty in the Court of Common Pleas of Berks
County to two counts of Possession with Intent to Deliver, one count of Unlawful
Possession of a Controlled Substance, and one count of Resisting Arrest. Id. at 134,
145-46. Petitioner received an aggregate carceral sentence of 36 to 72 months, with a
credit for time served of 151 days. Id. After this latest conviction, Petitioner again
waived his right to a parole revocation hearing, as well as to counsel, and admitted to
the Board that he had pled guilty to these crimes. Id. at 162-65. On October 3, 2017,
the Board elected to modify its February 13, 2017 action by eliminating the automatic
reparole provision and ordering Petitioner to serve 36 months of backtime as a CPV, 4
explaining that it was doing so not only due to Petitioner’s convictions, but also because
of his repeated and manifest refusals to comply with his parole requirements. Id. at 178.
In addition, the Board recalculated his maximum date as September 21, 2023. Id.
On October 24, 2017, Petitioner mailed an Administrative Remedies Form to the
Board. Id. at 185-87. Therein, Petitioner stated
I WOULD LIKE CALCULATIONS OF MY TIME AND I
WOULD ALSO WANT TO KNOW HOW DO I OWE 36
MONTHS BACK TIME [sic] IF I WAS NOT EVEN ON
THE STREET’S [sic] THAT LONG. I THINK THAT
YOUR TAKEN [sic] TIME FROM WHEN I WAS IN JAIL
AND HALFWAY HOUSE, AND CAN YOU PLEASE
EXPLAIN IS THIS HIT RUNNING WITH NEW CASE
[sic][?]
I HAVE A [sic] 3 TO 6 YEAR’S [sic] ON THE NEW CASE
AND I WOULD LIKE TO KNOW IS THAT PAROLE HIT
4
This amount of CPV backtime was to be served concurrently with the nine months he had
been previously ordered to serve as a TPV. See C.R. at 178.
4
RUNNING WITH THE NEW CASE AND I ALSO THINK
YOU WENT WAY OVER YOUR JURISDICTION. NEED
A LAWYER AS WELL. I THINK THAT WAS NOT FAIR.
Id. at 185.
The Board responded on March 14, 2018, informing Petitioner that it was
affirming its October 3, 2017 decision. Interpreting Petitioner’s statement to have
“raise[d] questions regarding the amount of time [he owed] and the relationship as to
the nature of [his] new conviction with your or[i]ginal sentence[,]” the Board explained
that the imposed CPV backtime was “not eligible for administrative review,” as 36
months was within the presumptive aggregate sentence range for the crimes to which
he had pled guilty on May 8, 2017. Id. at 188. In addition, the Board provided a detailed
explanation regarding how it had calculated Petitioner’s maximum date, concluding
that it had not erred in setting this date as September 21, 2023. Id. at 188-89.
Petitioner then filed his pro se Petition for Review with our Court on April 3,
2018. Therein, Petitioner argued that the Board had erred by admitting an unspecified
document “constituting hearsay evidence” at an unspecified point in time “over [his]
objection and without an adequate good finding of good cause to admit said document.”
Petition for Review at 1-2. In addition, Petitioner claimed that the Board had not
properly credited him for an unspecified time period during which he had been detained
solely due to the Board’s detainer. Id. at 2.
On May 3, 2018, we appointed the Public Defender of Schuylkill County to
represent Petitioner. Counsel subsequently entered his appearance on May 8, 2018, and
then filed his Application to Withdraw, along with a no-merit letter, on July 31, 2018.5
In his Application to Withdraw, Counsel stated he had reviewed the Certified Record
and had concluded “there are no grounds for appeal and the appeal is frivolous[.]”
5
In a no-merit letter, appointed counsel seeks to withdraw from representation because “the
case lacks merit, even if it is not so anemic as to be deemed wholly frivolous.” Com. v. Wrecks, 931
A.2d 717, 722 (Pa. Super. 2007).
5
Application to Withdraw at 3. In his no-merit letter, Counsel first provided a thorough
recapitulation of Petitioner’s criminal record and the resultant Board actions, after
which he concurred with the Board’s conclusions that it had correctly calculated
Petitioner’s maximum date and that the imposed CPV backtime was not reviewable.
See Turner Letter at 1-10. Counsel also advised Petitioner, in writing, that he believed
Petitioner’s arguments to be without merit and directed Petitioner to retain another
attorney, or file a pro se brief with our Court, in the event Petitioner disagreed with
Counsel’s conclusions. Id. at 10-11.
Before addressing the validity of Petitioner’s substantive arguments, we must
assess the adequacy of Counsel’s Application to Withdraw and no-merit letter. Since
Petitioner, throughout this process, has only sought to challenge the Board’s calculation
of his maximum date, the length of backtime it imposed, and its handling of evidentiary
matters, Counsel appropriately elected to file a no-merit letter. See Seilhamer v. Pa.
Bd. of Prob. & Parole, 996 A.2d 40, 43 n.4 (Pa. Cmwlth. 2010).6 “A no-merit letter
6
Pursuant to Anders v. California, 386 U.S. 738 (1967), court-appointed counsel must file
what is known as an Anders brief when seeking to withdraw from representation in certain
circumstances. See Com. v. Santiago, 978 A.2d 349, 353-55 (Pa. 2009). However,
[w]here no constitutional right to counsel is involved, an attorney
seeking to withdraw from representation in a probation and parole case
need only file a no-merit letter, as opposed to an Anders brief. Hughes
v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa.
Cmwlth. 2009). A constitutional right to counsel arises when the
petitioner presents 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.
6
must include an explanation of ‘the nature and extent of counsel’s review and list each
issue the petitioner wished to have raised, with counsel’s explanation of why those
issues are meritless.’” Id. at 43 (quoting Turner, 544 A.2d at 928) (brackets omitted).
As long as a no-merit letter satisfies these basic requirements, we may then review the
soundness of a petitioner’s request for relief. Zerby, 964 A.2d at 960. However, in the
event the letter fails on technical grounds, we must deny an appointed counsel’s request
for leave to withdraw, without delving into the substance of the underlying petition for
review, and may direct appointed counsel to file either an amended request for leave to
withdraw or a brief on behalf of their client. Id.
Here, we conclude that Counsel’s no-merit letter is inadequate. In contravention
of our well-established case law, Counsel appears to have ignored the substance of
Petitioner’s Petition for Review, addressing a claim in his no-merit letter that Petitioner
failed to preserve for our review (i.e., regarding the amount of backtime imposed by
the Board), completely disregarding another claim that Petitioner actually raised in his
Petition (i.e. Petitioner’s hearsay evidence argument), and neglecting to directly
address whether Petitioner had preserved his detainer credit claim, or whether that
claim has any substantive merit. Compare Turner Letter at 1-10 with Petition for
Review at 1-2; see Chesson v. Pa. Bd. Of Prob. & Parole, 47 A.3d 875, 878 (Pa.
Id. at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct.
1756, 36 L.Ed.2d 656 (1973)).
Seilhamer, 996 A.2d at 43 n.4.
7
Cmwlth. 2012).7 Accordingly, we deny Counsel’s Application to Withdraw and direct
him to file either a proper no-merit letter or an advocate’s brief within 45 days.
_______________________________
ELLEN CEISLER, Judge
7
The law is well settled that issues not raised before the Board either at
the revocation hearing or in the petitioner’s administrative appeal are
waived and cannot be considered for the first time on appeal. The law
is equally well settled that issues not raised in a petition for review are
waived and will not be addressed by this Court.
Chesson, 47 A.3d at 878 (internal citations omitted).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Zachary T. Evans, :
Petitioner :
:
v. : No. 618 C.D. 2018
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 16th day of January, 2019, Kent D. Watkins, Esquire’s
(Counsel) Application to Withdraw As Counsel is hereby DENIED. Counsel shall
file either a proper no-merit letter or an advocate’s brief within 45 days from the date
of this order.
Jurisdiction retained.
________________________________
ELLEN CEISLER, Judge