IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joshua Smith, :
Petitioner :
:
v. : No. 1079 C.D. 2021
: Submitted: May 27, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: September 21, 2022
Joshua Smith petitions for review of the September 2, 2021 Order of the
Pennsylvania Parole Board (Board) that dismissed his administrative appeal of a
decision recommitting him to a state correctional institution (SCI) as a convicted
parole violator (CPV) and denying him credit for the time he spent at liberty on
parole, also known as street time. Smith is represented by appointed counsel Dana
E. Greenspan, Esquire (Counsel).1 Counsel has filed an Application to Withdraw as
Counsel (Application to Withdraw) and a No-Merit Letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), based on her conclusion that
the issues Smith wishes to raise on appeal are without merit. Upon review, we grant
Counsel’s Application to Withdraw and affirm the Board’s September 2, 2021
Order.
1
Counsel is an Assistant Public Defender for the Montgomery County Office of the Public
Defender.
I. BACKGROUND
Smith pleaded nolo contendere to burglary and was sentenced to serve two
years, six months to five years in an SCI. Smith’s minimum date was January 28,
2018, and his maximum date was July 28, 2020. On February 5, 2018, Smith was
released on parole to a home plan that had him residing with his wife in Florida. On
April 27, 2020, Smith was arrested for a domestic violence incident involving a gun
that occurred on April 26, 2020, which resulted in charges of aggravated assault and
felon in possession of a firearm. (Certified Record (C.R.) at 11, 14, 64-65.) Smith
was released on his own recognizance on April 30, 2020. Smith pleaded guilty to
these charges on September 10, 2020, and the Florida court sentenced Smith to 24
months’ probation for each offense to run concurrently. (Id. at 12, 64-65.)
On December 28, 2020, the Board directed that a revocation hearing be held,
and the Board issued a warrant for Smith’s arrest on January 7, 2021. The warrant
noted that, although Smith’s original maximum date had expired, the original
sentence would be extended due to the new conviction. Smith waived extradition,
was extradited to Pennsylvania, and was received at an SCI on January 15, 2021.
The Board issued a Notice of Charges and Hearing on February 10, 2021, based on
the new criminal conviction, which Smith signed the next day. Also on February
11, 2021, Smith waived his rights to a parole revocation hearing and counsel, and he
admitted to the new conviction. (Id. at 46.) The waiver form indicated that Smith
“knowingly, intelligently, and voluntarily admit[ted]” to the charges, “underst[oo]d
and agree[d] that this admission is binding,” and that the admission could “be
withdrawn if [he] submit[ted] a written withdrawal . . . within ten (10) calendar days
of” February 11, 2021. (Id.) Nothing in the certified record reflects that Smith
withdrew his admission.
2
By Notice of Decision mailed April 16, 2021, the Board revoked Smith’s
parole and recommitted him as a CPV to serve 24 months’ backtime based on his
new conviction. (Id. at 95.) The Board did not award Smith credit for his street time
because the new conviction involved possession of a weapon, was assaultive in
nature, and reflected domestic violence issues. (Id. at 95-96.) The Board issued an
Order to Recommit, reflecting that Smith received no backtime credit and had 904
days remaining on his original sentence, which, when added to his custody for return
date of January 13, 2021, resulted in a new parole violation maximum date of July
6, 2023. (Id. at 93.) Smith, through Counsel, filed an administrative remedies form,
asserting that the Board abused its discretion by forcing Smith to waive the
revocation hearing despite his being diagnosed with a traumatic brain injury and
Asperger’s Syndrome; his parole could not be revoked because he had successfully
completed and was released from parole on July 30, 2020, and he should only have
had to serve a penalty of three months and two days; Smith should have received
credit for his street time because the new conviction only imposed probation; and
the Board improperly changed Smith’s expired maximum date. (Id. at 100.)
The Board responded to the administrative remedies form on September 2,
2021, affirming the revocation of parole and denial of credit, but reversing as to the
calculation of Smith’s maximum date. (Id. at 104-06.) The Board held the record
showed that Smith received the notice of charges and hearing reflecting the new
conviction; Smith signed the waiver form and admitted to the veracity of the new
conviction; the waiver form indicated Smith took this “action of his own free will,
without promise, threat or coercion” and the action “was knowing and voluntary”;
and Smith did not withdraw his waiver/admission within the 10-day period set forth
on the form. (Id. at 104.) Thus, the Board concluded it was authorized to revoke his
3
parole based on that waiver and admission. It next held that it had the authority to
revoke Smith’s parole, regardless of when its detainer was lodged or when the
conviction occurred, because Smith was on parole when he committed the offense.
(Id. (citing Section 6138 of the Prisons and Parole Code (Parole Code), 61 Pa.C.S.
§ 6138; Choice v. Pa. Bd. of Prob. & Parole, 357 A.2d 242, 243-44 (Pa. Cmwlth.
1972)).) The Board explained that its denial of street time credit was within its
discretion, it articulated multiple reasons for denying credit as required by Pittman
v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 474 (Pa. 2017), and
those reasons were sufficient to support the denial of credit. (C.R. at 105.) It further
concluded that the decision to revoke parole and deny credit for street time was
supported by substantial evidence. (Id.) Finally, the Board agreed that Smith’s
parole violation maximum date should be adjusted by using January 7, 2021, the
date of the warrant, rather than January 13, 2021, the date Smith waived extradition,
resulting in a new maximum date of June 30, 2023. (Id.)
Smith, again through Counsel, filed a Petition for Review (Petition) with this
Court. Therein, Smith asserted the “Board abused its discretion by forcing [him] to
waive his revocation hearing despite his diagnosis of Asperger’s Syndrome and [a]
traumatic brain injury”; in “revoking his parole after his successful completion of
parole prior to the new conviction”; and in denying Smith credit where his new
conviction was not designated a crime of violence under Section 6138(a)(2.1) of the
Parole Code and the new conviction resulted only in probation. (Petition for Review
¶¶ 6-10.)
II. APPLICATION TO WITHDRAW
On December 16, 2021, Counsel filed the Application to Withdraw and No-
Merit Letter. Before appointed counsel may withdraw from representation in a case
4
in which the right to counsel does not derive from the United States Constitution,2
such as here, the Turner or no-merit letter must contain: (1) the nature and extent of
counsel’s review; (2) the issues the petitioner wishes to raise; and (3) counsel’s
analysis in concluding that the petitioner’s appeal is without merit. Turner, 544 A.2d
at 928; Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009).
In addition, counsel must send the petitioner a copy of the no-merit letter, “a copy
of counsel’s petition to withdraw,” and a statement advising the petitioner of his
right to proceed with new counsel or pro se. Zerby v. Shanon, 964 A.2d 956, 960
(Pa. Cmwlth. 2009). Once counsel satisfies the procedural requirements of Turner,
this Court will “conduct its own review of the merits of the case.” Zerby, 964 A.2d
at 960.
Here, Counsel has complied with the above service requirements, i.e., Counsel
served Smith with a copy of the No-Merit Letter, the Application to Withdraw, and
this Court’s Order advising Smith that he may obtain substitute counsel or file a brief
in support of his petition for review.3 Further, Counsel’s No-Merit Letter complies
with Turner’s requirements. Counsel’s No-Merit Letter details Counsel’s review of
the Certified Record and relevant law. After summarizing the available factual and
2
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.
Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth. 2009) (quoting Gagnon v.
Scarpelli, 411 U.S. 778, 790 (1973)). Smith’s challenges do not fall within these parameters and,
as such, Counsel was only required to file a no-merit letter in order to withdraw from representation
of Smith.
3
Smith has not filed a response through new counsel or a brief on his own behalf.
5
procedural history of this matter, Counsel addresses the issues set forth in the
Petition and determines that they are without merit. Specifically, Counsel explains
that there was no evidence in the Certified Record that Smith signed the waiver and
admitted to the new conviction under duress, particularly given the
acknowledgements within the waiver and the lack of evidence that the waiver was
withdrawn, and, therefore, no due process violation occurred. (No-Merit Letter at
3.) Counsel states that under Section 6138(a)(2), a parolee is to be reentered to serve
the remainder of the term he would have been compelled to serve had there been no
parole but may serve only the remaining balance of his unexpired, judicially imposed
term, which is what Smith’s new parole violation maximum date of June 30, 2023,
reflects. (Id. at 4.) Counsel also explains that there was no abuse of discretion in not
granting Smith credit for his street time or his time after July 30, 2020, when his
sentence expired, because credit decisions are discretionary, the offenses to which
Smith pleaded guilty occurred while he was on parole, and the reasons offered for
denying credit were sufficient under Pittman. (Id. at 3-4.) For these reasons,
Counsel maintains that the Petition is without merit and the Board’s Order should
be affirmed. Having concluded that Counsel has met the technical requirements of
Turner, we will conduct our own review of the Board’s Order.
III. MERITS REVIEW
Smith first challenges his waiver of the revocation hearing and counsel, and
his admission of the new conviction as being insufficient to support the revocation
of his parole due to his being diagnosed with Asperger’s Syndrome and a traumatic
brain injury. Pursuant to Section 71.4(1) of the Board’s Regulations, a revocation
hearing is to “be held within 120 days of when the Board receive[s] official
verification of a plea of guilty” by a parolee. 37 Pa. Code § 71.4(1). The revocation
6
hearing is where the parolee, through provided counsel if the parolee is unable to
afford private counsel, has “[t]he right to speak, to have voluntary witnesses appear
and to present documentary evidence.” 37 Pa. Code § 71.4(2)(iv). These provisions
satisfy the requirements of due process. See Fumea v. Pa. Bd. of Prob. & Parole,
147 A.3d 610, 617-19 (Pa. Cmwlth. 2016) (describing how Section 71.4 of the
Board’s Regulations was promulgated to meet the standards of due process).
The Certified Record shows Smith was provided an opportunity to be heard
at a revocation hearing and to have counsel represent him, but he waived both those
rights and admitted to having been convicted in Florida of aggravated assault and
felonious possession of a firearm. Although Smith asserts his waiver and admission
should be set aside due to his Asperger’s Syndrome and traumatic brain injury
diagnoses, his administrative remedies form simply states that the “Board abused its
discretion by forcing [Smith] to waive his revocation hearing despite his diagnosis
of [A]sperger[’]s and [a] traumatic brain injury.” (C.R. at 100.) Smith did not, and
does not, explain or otherwise indicate how these conditions prevented him from
understanding what he was doing when he signed the waiver and admission form or
from withdrawing his waiver and admission in the 10 days following his execution
of that form. And, there is nothing in the record that would support a finding that
the waiver and admission were not voluntary because there is no explanation as to
why Smith believes the Board forced him into signing the form. Accordingly, we
are not persuaded that this is a reason to set aside the waiver and admission form.
That form, signed by Smith, specifically states:
I have been advised of my rights to a parole revocation hearing and
counsel at that hearing. I have also been advised that there is no penalty
for requesting counsel, that free counsel is available if I cannot afford
to retain counsel, and I have been provided the name and address of the
local public defender. With full knowledge and understanding of
7
these rights, I hereby waive my right to a parole revocation hearing
and counsel at that hearing. I waive these rights of my own free will,
without any promise, threat or coercion.
(C.R. at 46.) Smith signed this statement on February 11, 2021, and his signature
was witnessed. The form also stated:
On the 11th day of February 2021 I, Joshua Smith, do knowingly,
intelligently, and voluntarily admit that: I was convicted of,
plead[ed] guilty or plead[ed] no contest to the new criminal offense(s)
listed on the attached PB 257N[, which was signed by Smith and
provides the arrest and conviction date, location, docket number,
offenses, and sentence,] dated 2/10/21[, ] that the conduct underlying
the charge occurred while I was on parole/delinquent on parole, I
have been convicted of the offense(s) in a court of record and the
offense(s) was punishable by imprisonment. Specifically, I
knowingly, intelligently, and voluntarily admit that I have been
convicted of
Felonious possession of Firearm (F2)
Aggravated Assault (F3)
at Docket No(s). 20-CF0019151CFAXES
in violation of parole. I understand and agree that this admission is
binding and may only be withdrawn if I submit a written
withdrawal to my supervising agent, within ten (10) calendar days of
the date written above.
(Id.) These statements are followed by Smith’s signature, given on February 11,
2021, followed by the signature of a witness. (Id.) From this form, Smith admitted
to being advised of his rights and that his admissions are binding, and Smith agreed
that he was waiving those rights and making these admissions knowingly,
intelligently, and voluntarily. Importantly, the form provides an express means for
parolees to revoke their waiver and admission, but nothing in the record indicates
that Smith ever submitted such revocation or was prevented from doing so by his
8
medical conditions. Thus, there was no abuse of discretion in the Board relying on
Smith’s admission of the new conviction to support the revocation of his parole.
Moreover, the finding that Smith had a new conviction for crimes he committed in
Florida while on parole is supported not only by Smith’s admissions, but also by
certified court documents from Florida, including the guilty plea forms signed by
Smith and the judgment of the Florida Court reflecting that Smith was convicted
based on his guilty plea. (C.R. at 64-65, 71-74, 80-87.) These latter documents were
noted in the Hearing Report as “other” documentary evidence that supported the
existence of a new conviction. (Id. at 59.) For these reasons, the Board’s reliance
on Smith’s new conviction to revoke his parole is supported by the record.
Smith next argues the Board abused its discretion in “revoking his parole after
his successful completion of parole prior to the new conviction.” (Petition for
Review ¶ 10 (emphasis added).) While Smith focuses on the timing of the new
conviction, it is the date of the offense that governs. Section 6138(a)(1) of the Parole
Code provides the Board with the discretion to “revoke the parole of a paroled
offender if the offender, during the period of parole . . . , commits a crime
punishable by imprisonment, . . . to which the offender pleads guilty . . . at any time
thereafter in a court of record.” 61 Pa.C.S. § 6138(a)(1) (emphasis added). Under
this provision, the Board retains the authority to revoke the parole of a parolee, even
after the expiration of the original maximum sentence, where the criminal offense
occurred during the period of parole. Price v. Pa. Bd. of Prob. & Parole, 117 A.3d
362, 365-66 (Pa. Cmwlth. 2015). Here, the offenses to which Smith pleaded guilty
occurred in April 2020, prior to the July 28, 2020 expiration of Smith’s original
maximum sentence. (C.R. at 1, 14, 16-17.) Because the offenses occurred while
9
Smith was on parole, the Board retained the authority to revoke Smith’s parole based
on the new conviction. 61 Pa.C.S. § 6138(a)(1); Price, 117 A.3d at 365-66.
Smith last challenges the Board’s decision not to give him any credit toward
his backtime. Smith argues he should have received credit for his street time because
the new conviction was not a crime of violence under Section 6138(a)(2.1). Smith
also appears to claim he is entitled to credit for time he spent in custody on the new
charges because the sentence imposed for those charges was only probation. Based
on our review of the record and the law, we discern no error or abuse of discretion
in the Board’s denial of credit.
Section 6138(a)(2) and (2.1)(i) of the Parole Code states:
(2) If [an] offender’s parole is revoked, the offender shall be
recommitted to serve the remainder of the term which the offender
would have been compelled to serve had the parole not been granted
and, except as provided under paragraph (2.1), shall be given no credit
for the time at liberty on parole.
(2.1) The [B]oard may, in its discretion, award credit to an offender
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 . . . is a
crime of violence or a crime listed under 42 Pa.C.S. Ch.
97 Subch. H (relating to registration of sexual offenders)
or I (relating to continued registration of sexual offenders).
61 Pa.C.S. § 6138(a)(2), (2.1)(i). Our Supreme Court explained in Pittman that a
CPV does not automatically forfeit street time credit under Section 6138(a)(2), and
the Board retains the discretion to grant credit for street time except as provided in
Section 6138(a)(2.1). 159 A.3d at 474-75. In making this determination, “the Board
must articulate the basis for its decision to grant or deny a CPV credit for [street]
time” contemporaneously with that decision. Id. at 474. This allows for appellate
10
review of the Board’s exercise of its discretion. Plummer v. Pa. Bd. of Prob.
& Parole, 216 A.3d 1207, 1211 (Pa. Cmwlth. 2019). The Board’s explanation does
not have to be extensive, and, in most instances, a single sentence likely will suffice.
Id. “In exercising its discretion in a credit determination, ‘the Board’s statement of
reasons should be informed by aggravating and mitigating circumstances and
account for the parolee’s individual circumstances.’” Id. (quoting Marshall v. Pa.
Bd. of Prob. & Parole, 200 A.3d 643, 652 (Pa. Cmwlth. 2018)). The reasons also
must “relate[] to the parolee’s offenses” and be “accurate.” Marshall, 200 A.3d at
650. Finally, the “Board’s stated reason [should be] documented in the record and
afford[] the parolee notice of the specific acts being referenced.” Plummer, 216 A.3d
at 1212 (citing Vann v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1067 C.D.
2017, filed Apr. 10, 2018)).4
Under Section 6138(a)(2.1)(i), the Board would have had no discretion to
award credit for street time if Smith’s new conviction had been for a crime of
violence under subsection (i). However, the Board was not required to award credit
for street time because his new conviction was not for a crime of violence. The
Board retains its discretion to award credit, or not, for Smith’s street time, and, acting
within that discretion, it decided not to grant such credit. The contemporaneous
reasons given by the Board for the denial were that the new conviction involved
possession of a weapon, was assaultive in nature, and reflected domestic violence
issues. (C.R. at 95-96.) These reasons account for Smith’s individual
circumstances, relate to Smith’s offenses, and are accurate, as Smith was convicted
of aggravated assault and felonious possession of a weapon as a result of a domestic
violence incident. Finally, the reasons given by the Board were documented in the
4
Vann is cited for its persuasive value pursuant to Section 414(a) of this Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a).
11
record and Smith had notice of them because he pleaded guilty to those charges.
Accordingly, the Board’s explanation comports with Pittman’s requirements, and
there was no abuse of discretion in the Board denying Smith credit for his street time.
To the extent Smith also appears to argue that he is entitled to backtime credit
under Martin v. Pennsylvania Probation and Parole, 840 A.2d 299 (Pa. 2003),
because the new conviction imposed only probation, this argument is without merit.
Martin applies where a parolee’s pre-sentence “confinement is a result of both the
detainer for a parole violation and the failure to meet conditions of bail on the new
offense.” Id. at 308 (emphasis in original). Here, the Board did not issue its detainer
until January 7, 2021, which was after Smith was convicted and sentenced to
probation on the new charges. Thus, there was no point when Smith was confined
on both a Board detainer and the new charges. Therefore, there was no abuse of
discretion in the Board not otherwise granting Smith credit toward his backtime.
IV. CONCLUSION
For the foregoing reasons, we grant the Application to Withdraw and affirm
the Board’s Order.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joshua Smith, :
Petitioner :
:
v. : No. 1079 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
NOW, September 21, 2022, the Application to Withdraw as Counsel filed by
Dana E. Greenspan, Esq. is GRANTED, and the Pennsylvania Parole Board’s
September 2, 2021 Order is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge