IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael D. Pearson, :
Petitioner :
:
v. : No. 1373 C.D. 2022
: Submitted: November 6, 2023
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: December 22, 2023
Michael D. Pearson (Petitioner) petitions for review of the Pennsylvania
Parole Board’s (Board) decisions mailed November 18 and November 28, 2022,
dismissing his pro se administrative appeals and affirming its prior decisions which
recommitted Petitioner as a convicted parole violator (CPV), awarded him credit for
time spent at liberty on parole, and recalculated his maximum sentence date.
Additionally, Petitioner’s appointed counsel, Kent D. Watkins, Esq. (Counsel), filed
an Application to Withdraw as Counsel (Application to Withdraw). After careful
review, we conclude the Board did not err or abuse its discretion and affirm the
Board’s decisions. We additionally grant Counsel’s Application to Withdraw.
I. Factual and Procedural History
Petitioner is in the custody of the Pennsylvania Department of Corrections
(DOC) at the State Correctional Institution (SCI) at Waymart. Certified Record
(C.R.)1 at 65. In 2006, Petitioner pled nolo contendere to two charges of possession
with intent to deliver a controlled substance,2 and the Court of Common Pleas of the
39th Judicial District, Franklin County branch (Common Pleas) sentenced him to an
aggregate term of 2 years and 8 months to 10 years of incarceration (the original
term). C.R. at 1. The Board paroled Petitioner to a community corrections center
in October 2007. Id. at 5. In 2008, Petitioner received a technical parole violation
for possessing a stun gun, but the Board continued his parole. Id. at 6.
In November 2009, police witnessed Petitioner discard a package from his
vehicle during a traffic stop. Id. at 42. An investigation revealed the package
contained “a large amount of cocaine and marijuana.” Id. Following his arrest by
the United States Drug Enforcement Agency, the Board detained Petitioner. Id. at
9. On September 29, 2010, the Board recommitted Petitioner to an SCI as a CPV to
serve 18 months of backtime3 on the original term pending the resolution of his
federal charges. Id. at 10. In March 2017, the Board recalculated Petitioner’s
original controlling maximum sentence to July 1, 2024. Id. at 1, 11, 105. The Board
1
We note the absence of a Reproduced Record here. On January 5, 2023, our Prothonotary granted
Petitioner’s application for leave to appeal in forma pauperis. See Ord. Granting Application for
Leave to Appeal in Forma Pauperis, Pearson v. Pa. Parole Bd., (Pa. Cmwlth. No. 1373 C.D. 2022,
filed Jan. 5, 2023). Therefore, Petitioner was not required to reproduce the record. See Pa.R.A.P.
2151(b).
2
See Section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April
14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30).
35 P.S. § 780–113(a)(30).
3
Backtime is “part of an existing judicially-imposed sentence which the Board directs a parolee
to complete following a finding after a civil administrative hearing that the parolee violated the
terms and conditions of parole, which time must be served before the parolee may again be eligible
to be considered for a grant of parole.” Krantz v. Pa. Bd. of Prob. and Parole, 483 A.2d 1044,
1047 (Pa. Cmwlth. 1984); see 37 Pa. Code § 61.1.
2
paroled Petitioner from the original term to a community corrections center in July
2019. Id. at 16-31.
On October 4, 2021, the Franklin County Drug Task Force arrested Petitioner
on new drug charges.4 Id. at 32, 44-51. The Board issued a warrant the following
day to commit and detain Petitioner at the Franklin County jail based on a parole
violation. Id. at 33. Petitioner did not post bail, and, in March 2022, he pled nolo
contendere to two counts of delivering a controlled substance. Id. at 39, 52-54.
Common Pleas sentenced Petitioner to a term of 11 ½ to 23 months and awarded
credit for time served from October 5, 2021 to March 9, 2022 on the new term. Id.
at 34. Petitioner waived his right to a hearing, and the Board subsequently revoked
his parole from the original term. Id. at 35-41, 55-64.
On May 2, 2022, the Board determined it would recommit Petitioner as a CPV
to serve 18 months on the original term pending his completion of the new term
(May 2 Decision). Id. at 86-87. Petitioner filed identical Administrative Remedies
Forms, pro se, on May 17 challenging the May 2 Decision (May 17 Appeals).5 Id.
at 92-103. On October 11, 2022, the Board recommitted Petitioner, recalculated his
maximum sentence date as June 16, 2025, awarded him a credit of 805 days served
in good standing on parole (street time), and found backtime owed on the original
term was 1,000 days (October 11 Decision). Id. at 88-91, 114-16. By decision
mailed November 18, 2022, the Board dismissed the May 17 Appeals and affirmed
the May 2 and October 11 Decisions. Id. at 109-10.
Petitioner filed another pro se Administrative Remedy Form on November 14,
2022, challenging the October 11 Decision. Id. at 114-15. On November 23, 2022,
4
The Franklin County Drug Task Force alleged that between April and May 2022, Petitioner twice
delivered crack cocaine to a confidential informant in exchange for currency. C.R. at 38, 40.
5
Petitioner also sent a letter and administrative remedies form to DOC. Id. at 104.
3
the Board recalculated Petitioner’s maximum sentence date as June 17, 2025,
credited him 804 days of street time, and found backtime owed on the original term
was 1,001 days. Id. at 111-12. By decision mailed November 28, 2022, the Board
concurrently affirmed and modified the October 11 Decision to reflect its newly
calculated maximum date. Id. at 113, 117-19.
Petitioner, through Counsel, then filed his Petition for Review with this Court.
On appeal, Petitioner contends the Board committed errors of law and abused its
administrative discretion by (i) failing altogether to award him credit for the time
served exclusively on the Board’s warrant, (ii) failing to award him adequate street
time credit, and (iii) erroneously recalculating his controlling maximum sentence
date. Accordingly, Petitioner requests we reverse the Board’s decisions mailed
November 18 and November 28, 2022.
In addition, on February 27, 2023, Counsel filed an Application to Withdraw
and a Turner letter (Turner Letter).6 On September 29, 2023, the Court ordered it
would consider the Application to Withdraw along with the merits of the Petition for
Review. The Court advised Petitioner he may obtain substitute counsel or file a brief
on his own behalf. Petitioner did not file an appellate brief, and no counsel has
entered an appearance on his behalf.
II. Turner Letter and Application to Withdraw
As an initial matter, we shall address Counsel’s Turner Letter and Application
to Withdraw. Where a petitioner seeks our review of a Board determination, has no
constitutional right to counsel, and counsel finds the petitioner’s case lacks merit,
the Court will allow counsel to withdraw if we conclude the issues raised by the
6
We use the term “Turner letter” to refer to our Supreme Court’s decision in Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), which “set[s] forth the appropriate procedures for the withdrawal
of court-appointed counsel in collateral attacks on criminal convictions.”
4
petitioner are meritless. Zerby v. Shanon, 964 A.2d 956, 960-61 (Pa. Cmwlth. 2009)
(relying on Turner, 544 A.2d at 928-29). Appointed counsel must submit a Turner
letter “detailing the nature and extent of his review and listing each issue the
petitioner wished to have raised, with counsel’s explanation of why those issues [are]
meritless” to properly withdraw. Turner, 544 A.2d at 928. We shall conduct an
independent review of the issues raised and if counsel satisfies the technical
requirements of Turner, we may grant leave to withdraw. Hont v. Pa. Bd. of Prob.
and Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996).
Here, we hold Counsel’s letter satisfies Turner’s requirements. Counsel’s
specific letter recites the relevant factual and procedural history and explains that his
assessment was based on “an exhaustive examination of the record” as well as
“research of applicable case law.” Turner Letter at 2, 10. He also notes the issues
Petitioner raised in his Petition for Review and concludes that, after Counsel’s
review of the record and applicable law, “[Petitioner’s] appeal from the revocation
of his parole has no basis in law or in fact and is, therefore, frivolous.” Id. at 10-11.
Counsel provided a copy of the Turner Letter to Petitioner informing him of his right
to retain new counsel and his right to file a pro se brief with this Court. Id. at 11.
Because Counsel satisfied Turner’s technical requirements for withdrawal, we next
review the merits of the Petition for Review.
III. Discussion
This Court reviews a decision of the Board denying a parolee’s request for
administrative relief to determine whether substantial evidence supports the Board’s
necessary findings of fact, whether the Board committed an error of law, and whether
the Board violated a parolee’s constitutional rights. See McNally v. Pa. Bd. of Prob.
and Parole, 940 A.2d 1289 (Pa. Cmwlth. 2008); 2 Pa.C.S. § 704. When presented
5
with a question of law, our standard of review is de novo, and our scope of review is
plenary. See Pittman v. Pa. Bd. of Prob. and Parole, 159 A.3d 466, 473 (Pa. 2017).
In other words, because we reassess the record with a fresh pair of eyes and do not
defer to the Board’s prior conclusions about the law in question, “[t]he reviewing
body is in effect substituted for the prior decision maker and redecides the case.”
Rebert v. Rebert, 757 A.2d 981, 984 (Pa. Super. 2000). Where the law grants the
Board discretion, we also review for an abuse of that discretion. See Pittman, 159
A.3d at 474. An abuse of discretion occurs when “the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as
shown by the evidence or the record.” Pittman, 159 A.3d at 474 (quoting Zappala
v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1284 (Pa. 2006)).
First, we address Petitioner’s argument that the Board failed to award him
credit for the time he served exclusively on the Board’s October 5, 2021 warrant to
commit and detain. “Where a parolee arrested on new criminal charges fails to post
bail on those charges[,] any time spent in custody prior to sentencing on those
charges is properly credited against the parolee’s new sentence.” Woodard v. Pa.
Bd. of Prob. and Parole, 582 A.2d 1144, 1147 (Pa Cmwlth. 1990) (citing Gaito v.
Pa. Bd. of Prob. and Parole, 412 A.2d 568 (Pa. 1980)) (emphasis added). Here, the
Franklin County Drug Task Force arrested Petitioner on October 4, 2021, and the
Board issued a warrant to detain him the following day. Petitioner did not post bail,
and he remained incarcerated at the Franklin County jail until Common Pleas
sentenced him on March 9, 2022. Common Pleas credited Petitioner for the time
served between October 5, 2021, and March 9, 2022, a total of 155 days, on the new
term. C.R. at 34, 64.
6
Next, we address Petitioner’s argument that the Board failed to award him
adequate street time credit. The Board released Petitioner on parole from the original
term on July 23, 2019. Where the Board later determines to recommit a parolee as
a CPV, as it did here, “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 . . . shall be given no credit for the time at liberty on parole.”
Subsection 6138(a)(2) of the Prisons and Parole Code, 61 Pa.C.S. § 6138(a)(2).
Nonetheless, Paragraph 2.1 of Subsection 6138(a) establishes the Board “may, in its
discretion, award credit to an offender recommitted under [Subsection 6138(a)(2)]
for the time spent at liberty on parole . . . .” 61 Pa.C.S. § 6138(a)(2.1) (emphasis
added). When the Board paroled Petitioner in July 2019, 1,805 days remained on
the original term. See C.R. at 117. Petitioner received street time credit of 804 days
on the original term (July 23, 2019 through October 4, 2021). See id. at 111-12.
This means Petitioner’s backtime owed was 1,001 days (1,805 minus 804 equals
1,001). Petitioner did not receive an additional credit of 155 days on the original
term because he was unable to satisfy the requirements for bail, and that time was
thus credited to the new term instead. Therefore, the Board properly exercised its
discretion in awarding Petitioner an 804-day credit on the original term.
With respect to his challenge7 of the Board’s recalculation of his maximum
sentence date, Petitioner contends that, “[i]f my max date hadn’t been changed
illegally, I wouldn’t have been on parole since 2016. I am being detained for
mistakes made by the parole board.” Id. at 106-07. Section 73.1(a)(1) of Title 37
makes clear that a parolee must appeal a revocation decision by the Board within 30
7
“This Court has recognized that a recommitment order and a recomputation order are separate
appealable orders[.]” Wright v. Pa. Bd. of Prob. and Parole, 743 A.2d 1004, 1006 (Pa. Cmwlth.
1999) (citing Woodard v. Pa. Bd. of Prob. and Parole, 582 A.2d 1144 (Pa. Cmwlth. 1990)).
7
days of the mailing date; an appeal made “out of time” will not be considered. 37
Pa. Code § 73.1(a)(1). By action dated March 17, 2017, the Board revoked
Petitioner’s parole and recalculated his maximum sentence date from May 25, 2016,
to July 1, 2024. See C.R. at 11. As a result, Petitioner’s right to appeal from the
Board’s March 17 decision lapsed, and we cannot now consider Petitioner’s
argument that the Board “incorrectly recalculated [his original] maximum sentence
date.” Petition for Review ¶ 8.
Although we cannot consider the original recalculation of Petitioner’s
maximum date, we will address the Board’s most recent recalculations. Following
his arrest in October 2021, the Board recommitted Petitioner as a CPV and
recalculated his maximum sentence date as June 16, 2025. See C.R. at 86, 88-89.
On November 23, 2022, the Board again recalculated Petitioner’s maximum
sentence date, now June 17, 2025, and issued a final adjudication as to this issue.
See id. at 111-12. Our Supreme Court has determined that “the Board’s exercise of
its discretion, within the reasonable parameters reflected by the establishment of the
presumptive range, must be upheld” unless there are “some special circumstances
which would justify a reconsideration of” the Board’s discretion. Smith v. Pa. Bd.
of Prob. and Parole, 574 A.2d 558, 561 (Pa. 1990) (emphasis added). Here, the
maximum aggregate range of Petitioner’s new offenses was 48 months. See 37 Pa.
Code §§ 75.1-75.2; C.R. at 110. We observe no special circumstances warranting
reconsideration of the Board’s administrative discretion, and the Board’s assigned
18-month term is within the permissible maximum range. For the reasons set forth
above, we hold the Board’s recalculation of Petitioner’s maximum sentence date is
correct and accurately set forth in its decision mailed November 28, 2022. See C.R.
at 117-19.
8
IV. Conclusion
Based on the foregoing, we conclude Counsel fulfilled Turner’s requirements
to withdraw from representation and grant the Application to Withdraw. We further
determine the Board did not commit an error of law or abuse its discretion in
reaching its decisions mailed November 18 and November 28, 2022, and we affirm
both.
______________________________
STACY WALLACE, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael D. Pearson, :
Petitioner :
:
v. : No. 1373 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 22nd day of December 2023, the February 27, 2023
Application to Withdraw as Counsel filed by Kent. D. Watkins, Esq. is GRANTED,
and the decisions of the Pennsylvania Parole Board mailed November 18 and
November 28, 2022, are AFFIRMED.
______________________________
STACY WALLACE, Judge