IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marcus Brown, :
Petitioner :
:
v. : No. 605 C.D. 2020
: Submitted: December 18, 2020
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: March 9, 2021
Marcus Brown, an inmate confined at the State Correctional Institution
(SCI) at Mercer, petitions for review of an adjudication of the Pennsylvania Parole
Board (Board) recommitting him to serve 18 months’ backtime as a convicted parole
violator and recalculating his maximum sentence date to November 6, 2037. His
counsel, Jessica A. Fiscus, Esquire (Counsel),2 has filed an application to withdraw
her appearance based on her assessment that Brown’s appeal lacks merit. For the
following reasons, we grant Counsel’s application to withdraw and affirm the
Board’s order.
On August 19, 1997, Brown pleaded guilty in Allegheny County to the
charges of third-degree murder, criminal attempt to commit homicide and robbery.
He was sentenced to a term of imprisonment of 12 to 40 years in an SCI, with a
maximum sentence date of August 19, 2037.
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
Counsel is an assistant public defender in Erie County.
Brown was paroled on December 22, 2014, to a community corrections
center. On April 14, 2015, Brown was released from the community corrections
center to an approved home plan in Erie, Pennsylvania. Brown vacated his
apartment on October 31, 2017, and his approved residence was changed to a shelter.
On October 30, 2018, parole officers searched Brown’s residence based
on a tip from a confidential informant. They found a rifle, which Brown admitted
was his. Brown was charged with unlawful possession of a firearm under Section
6105(a)(1) of the Pennsylvania Uniform Firearms Act of 1995 (Uniform Firearms
Act), 18 Pa. C.S. §6105(a)(1). Bail on the new charge was set at $25,000 cash. Also,
on October 30, 2018, the Board issued a detainer warrant. On November 30, 2018,
Brown’s bail was modified to $25,000 unsecured.
On January 29, 2019, the charge under Section 6105(a)(1) of the
Uniform Firearms Act was withdrawn, and Brown entered a guilty plea to the
amended charge of carrying a firearm without a license under Section 6106(a)(1) of
the Uniform Firearms Act, 18 Pa. C.S. §6106(a)(1). The Court of Common Pleas of
Erie County (trial court) sentenced him to three to six years in an SCI. The trial
court ordered that “[c]onfinement is Concurrent with Unknown – any other
sentence(s) [Brown] is currently serving.” Certified Record at 43.
On February 8, 2019, the Board notified Brown that it would hold a
revocation hearing due to his new conviction. He waived his rights to counsel and
a revocation hearing. On March 22, 2019, the Board recommitted Brown to serve
18 months’ backtime as a convicted parole violator and, in its discretion, awarded
him credit for his time spent at liberty on parole. His maximum sentence date was
recalculated to November 6, 2037.
2
Brown, pro se, filed an administrative remedies form challenging the
recalculation of his sentence, which he argued did not account for the trial court’s
order that his new criminal sentence run concurrently with any other sentence. Thus,
Brown argued, the Board should not have recalculated his maximum sentence date.
On May 21, 2020, the Acting Board Secretary responded that Section 6138(a)(5) of
the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §6138(a)(5), prohibits a
convicted parole violator from serving a new sentence concurrently with his original
sentence. Based on its conclusion that Brown’s claim is prohibited by statute, the
Board affirmed its March 22, 2019, decision.
Brown, now represented by Counsel,3 filed a petition for review in this
Court, reiterating his claim that his new sentence and the backtime on his original
sentence should run concurrently. Counsel subsequently filed her application to
withdraw, along with a no-merit letter asserting that Brown’s claim lacks merit.
When evaluating an attorney’s application to withdraw from
representation of a parolee who challenges a revocation decision, we must determine
whether counsel has (1) notified the parolee of the application to withdraw; (2)
provided the parolee with a copy of a no-merit letter in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); and (3) advised the parolee of
his right to retain new counsel or file a brief on his own behalf. Miskovitch v.
Pennsylvania Board of Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013).
The no-merit letter must detail the extent of counsel’s review and explain why the
parolee’s claim is meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth.
3
The Chief Public Defender of Erie County filed the petition for review. The Chief Public
Defender subsequently withdrew her appearance, and Counsel entered her appearance on behalf
of Brown.
3
2009). If counsel has fully complied with the technical requirements for withdrawal,
the Court will independently review the merits of the parolee’s claims.
Here, the record reflects that Counsel has notified Brown of the
application to withdraw; has provided him with a copy of the no-merit letter that
details Counsel’s review of the issue and the reasons why Counsel concluded the
issue is meritless; and has advised Brown of his right to retain new counsel or to file
a brief on his own behalf.4 Accordingly, we conclude that Counsel has satisfied the
technical requirements for withdrawal of representation.
Turning to our review of the merits,5 we consider Brown’s claim that
the Board erred in recalculating his maximum sentence date because his
recommitment sentence must run concurrently with his new criminal sentence, in
accordance with the trial court’s order. Counsel asserts in her no-merit letter that
the issue raised by Brown is meritless because it is prohibited by statute. We agree.
We begin with Section 6138(a)(5)(i) of the Parole Code, which
provides, in relevant part:
(5) If a new sentence is imposed on the parolee, the service of the
balance of the term originally imposed by a Pennsylvania court
shall precede the commencement of the new term imposed in the
following cases:
(i) If a person is paroled from a State correctional
institution and the new sentence imposed on the person is
to be served in the State correctional institution.
4
Brown has not obtained new counsel or filed a brief on his own behalf.
5
In reviewing an adjudication of the Board, this Court must determine whether necessary findings
of fact were supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Johnson v. Pennsylvania Board of Probation and Parole, 706
A.2d 903, 904 (Pa. Cmwlth. 1998).
4
61 Pa. C.S. §6138(a)(5)(i). In Palmer v. Pennsylvania Board of Probation and
Parole, 134 A.3d 160 (Pa. Cmwlth. 2016), this Court applied Section 6138(a)(5)(i)
in the context of a parolee’s claim that is similar to Brown’s.
The parolee in Palmer was charged with aggravated assault and
negotiated a plea deal to serve 15 to 30 months in an SCI. The plea agreement,
accepted by the sentencing court, stated that his sentence was to run concurrently to
any sentence he was serving while on parole. At the parolee’s revocation hearing,
his counsel stated that the Board would not object to running the sentences
concurrently. The parolee’s parole agent stated that he had no objection to counsel’s
statement. However, when the Board issued its decision, it refused to honor the plea
agreement that the parolee serve his backtime concurrently with his new sentence.
The parolee petitioned for this Court’s review. He argued that the
Board was obligated to accept the plea agreement he made with the district attorney,
which was accepted by the sentencing court. We disagreed, holding that “Section
6138(a)(5) of the [Parole] Code … requires that [convicted parole violators] serve
the backtime on their original state sentence before they can begin to serve time on
a newly imposed state sentence.” Palmer, 134 A.3d at 165. As such, “the Board
may not impose backtime to run concurrently with a new sentence for an offense
committed while on parole.” Id. We rejected the parolee’s reliance on his plea
agreement, explaining that “any agreement with [the parolee] indicating that his new
criminal sentence would run concurrently with his backtime was invalid.” Id. We
further explained that if the parolee accepted the plea agreement in reliance on being
able to serve his sentences concurrently, the “proper remedy is to seek to vacate the
plea agreement in the [sentencing] court.” Id. at 166. Moreover, “[b]ecause neither
the [sentencing] court nor the Board could order [the parolee’s] backtime and new
5
sentence to run concurrently, any agreement indicating that the Board would even
consider doing that would render [the parolee’s] plea agreement void.” Id.
In sum, because a convicted parole violator must serve his new sentence
and the backtime on his original sentence consecutively, we agree with Counsel that
Brown’s issue on appeal lacks merit, and the Board did not err in denying Brown’s
administrative appeal. Further, our review indicates that the Board correctly
calculated Brown’s maximum sentence date.6 Accordingly, we grant Counsel’s
application to withdraw and affirm the Board’s order.
_____________________________________
MARY HANNAH LEAVITT, President Judge
6
On October 30, 2018, when Brown was arrested on the new criminal charge, he had 6,868 days
remaining on his original sentence. Brown was incarcerated on the new charge from October 30,
2018, through November 30, 2018, when his bail was modified to unsecured. Thus, from
November 30, 2018, through his sentencing on January 29, 2019, Brown was incarcerated solely
on the Board’s warrant. This entitled him to a credit of 60 days on his original sentence, reducing
it to 6,808 days. See Gaito v. Pennsylvania Board of Probation and Parole, 563 A.2d 545, 547
(Pa. Cmwlth. 1989) (“Time spent in custody pursuant to a detainer warrant shall be credited to a
convicted parole violator’s original term only when the parolee was eligible for, and had satisfied,
bail requirements for the new offense and thus remained incarcerated only by reason of the detainer
warrant against him.”). From January 29, 2019, until he was returned to the Board’s custody on
March 18, 2019, he was serving his new sentence. Adding 6,808 days to the date Brown was
returned to the Board’s custody yielded a new maximum sentence date of November 6, 2037.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marcus Brown, :
Petitioner :
:
v. : No. 605 C.D. 2020
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 9th day of March, 2021, the application to withdraw
appearance, filed by Jessica A. Fiscus, Esquire, is GRANTED, and the Pennsylvania
Parole Board’s May 21, 2020, order is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge