IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Yusef George, :
Petitioner :
:
v. : No. 491 C.D. 2023
: Submitted: March 8, 2024
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: April 16, 2024
Yusef George (Petitioner) petitions for review of the April 21, 2023 order
(Order) of the Pennsylvania Parole Board (Board) affirming its decision recorded
December 22, 2023, that recommitted Petitioner as a convicted parole violator
(CPV) and denied him credit for time spent at liberty on parole. Additionally,
Petitioner’s appointed counsel, Kent D. Watkins, Esq. (Counsel) filed an Application
to Withdraw as Counsel (Application to Withdraw). After review, we grant
Counsel’s Application to Withdraw and, concluding the Board did not err or abuse
its discretion, we affirm the Board’s Order.
I. Factual and Procedural Background
The Board granted Petitioner parole from the State Correctional Institution
(SCI) at Graterford where he was serving a sentence of three years and six months
to eight years of incarceration for a drug offense conviction. Certified Record (C.R.)
at 21. The Board granted Petitioner parole by order dated August 28, 2017, and
released him on October 2, 2017. Id. On his date of release, Petitioner’s parole
violation maximum date was December 22, 2020. Id.
On May 21, 2020, police in Montgomery County arrested Petitioner on new
drug charges. Id. at 28. The police transported Petitioner to Montgomery County
Correctional Facility where he was held awaiting his preliminary hearing. Id. at 35.
The Board issued its warrant the day of Petitioner’s arrest. Id. at 38. The Magisterial
District Judge set bail, which was subsequently reduced by the Montgomery County
Court of Common Pleas (trial court). Id. at 82. On December 23, 2020, Petitioner
reached his parole violation maximum date, and the Board cancelled its warrant. Id.
at 39. On December 28, 2020, Petitioner posted bail. Id. at 94.
On August 8, 2022, Petitioner entered a guilty plea to two counts of
manufacture, delivery, and possession with intent to manufacture or deliver a
controlled substance (PWID). Id. at 85. On the date of his guilty plea, the trial court
sentenced Petitioner to concurrent terms of time served to a maximum of 23 months
of incarceration and to a term of 3 years of probation. Id. at 28.
The Board issued a Warrant to Commit and Detain Petitioner on September
9, 2022, and Petitioner returned to the Pennsylvania Department of Corrections’
custody. Id. at 27. The Board held a revocation hearing on November 23, 2022, and
on December 22, 2022, entered an order recommitting Petitioner to SCI-Frackville
as a CPV because of his PWID convictions. The Board ordered Petitioner to serve
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18 months of incarceration and determined his parole violation maximum sentence
date to be November 19, 2025. Id. at 109-10.
Petitioner, through Counsel, filed an administrative appeal on January 4,
2023. Id. at 111. The Board entered its order denying Petitioner’s request for relief
and affirming its December 22, 2022 decision. Id. at 113-15. Petitioner now appeals
to this Court.
In his Petition for Review, Petitioner asserts (1) the Board failed to award him
credit for the time he served on the Board’s warrant, and (2) the Board abused its
discretion by failing to award him credit for the time served at liberty on parole.
Petition for Review ¶¶ 5, 6. He requests this Court reverse the Board’s order denying
his administrative appeal. Id. at 2. On August 1, 2023, Counsel filed an Application
to Withdraw and a Turner letter1 (Turner Letter). On August 4, 2023, this Court
ordered it would consider Counsel’s Application to Withdraw along with the merits
of the Petition for Review. This Court further advised Petitioner he may obtain
substitute counsel or file a brief on his own behalf. To date, Petitioner has not filed
a brief, and no counsel has entered an appearance on his behalf.
II. Turner Letter and Application to Withdraw
Before we address the merits of the Petition for Review, we must first address
Counsel’s Turner Letter and Application to Withdraw. Where a petitioner seeks
review of a Board determination, has no constitutional right to counsel, and counsel
determines the case lacks merit, the Court will allow counsel to withdraw if we
conclude the issues raised on appeal are meritless. Zerby v. Shanon, 964 A.2d 956,
1
We use the term “Turner letter” in reference to our Supreme Court’s decision in Commonwealth
v. Turner, 544 A.2d 927, 928-29 (Pa. 1988), in which the Court set forth “the appropriate
procedures for withdrawal of court-appointed counsel in collateral attacks on criminal
convictions.”
3
960-61 (Pa. Cmwlth. 2009) (relying on Commonwealth v. Turner, 544 A.2d 927,
928-29 (Pa. 1988)). To properly withdraw, appointed counsel must submit a Turner
letter that “detail[s] the nature and extent of his review and list[s] each issue the
petitioner wished to have raised, with counsel’s explanation of why those issues [are]
meritless.” Turner, 544 A.2d at 928. Where counsel satisfies the Turner
requirements, we conduct an independent review of the issues raised and, if we agree
with counsel’s assessment, we may grant the petition or application to withdraw.
See Hont v. Pa. Bd. of Prob. & Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996).
Here, Counsel’s letter satisfies Turner’s technical requirements. Counsel’s
letter contains a recitation of the relevant factual and procedural history and explains
Counsel based his assessment on his “exhaustive examination of the certified
record” and “research of applicable case law.” Turner Letter at 9-10. Counsel
provides the issues Petitioner raised in his Petition for Review are that the “Board
failed to give hi[m] credit for all time served exclusively to its warrant” and the
Board “abused its discretion by failing to give him credit for all time in good standing
on parole.” Id. at 1. Counsel states that after a review of the record and applicable
law, he has “concluded that [Petitioner’s] appeal from the revocation of his parole
has no basis in law or in fact and is, therefore, frivolous.” Id. at 10. Counsel verified
he provided Petitioner a copy of the letter informing him of his right to retain new
counsel and his right to file a pro se brief with this Court. Id. at 10. As noted above,
Petitioner did not file a brief, and no counsel entered an appearance for him. Because
Counsel satisfied Turner’s technical requirements for withdrawal, we now review
the merits of the Petition for Review.
4
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. McNally v. Pa. Bd. of Prob. &
Parole, 940 A.2d 1289 (Pa. Cmwlth. 2008). When presented with a question of law,
our standard of review is de novo, and our scope of review is plenary. Pittman v.
Pa. Bd. of Prob. & Parole, 159 A.3d 466, 473 (Pa. 2017). In other words, in
considering the proper meaning of a given rule of law on appeal, we do not defer to
the Board’s conclusions of law, and we review the entire record with a fresh pair of
eyes. Where the law grants the Board discretion, we also review for an abuse of that
discretion. See id. 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.” Id. (quoting Zappala v. Brandolini
Prop. Mgmt., Inc., 909 A.2d 1272, 1284 (Pa. 2006)).
First, we address Petitioner’s challenge to the Board’s failure to award
Petitioner credit for the time he served on the Board’s warrant. Where a parolee is
held in custody solely because of a Board’s detainer, and he has otherwise met the
requirements for bail on the new criminal charges, the time spent in custody shall be
credited against his original sentence. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d
568, 571 (Pa. 1980). However, where a defendant “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.” Id. Here,
Petitioner did not post bail on his new charges until after the Board lifted its detainer
on December 23, 2020. Because Petitioner failed to satisfy his bail requirements,
5
any time he spent in custody before he posted bail shall be credited to his new
sentence.
The trial court sentenced Petitioner on the new charges on August 8, 2022.
On September 9, 2022, the Board issued its Warrant to Commit and Detain. Id. at
27. At that time, Petitioner became available to serve the backtime2 owed on his
original sentence. The amount of days from the date of his release on parole, October
2, 2017, to his original parole violation maximum date, December 22, 2020, is 1,177
days (3 years, 2 months, 20 days). Adding 1,177 days to his custody for return date
of September 9, 2022, results in a correctly recalculated parole violation maximum
sentence date of November 29, 2025. C.R. at 107. Therefore, the Board did not err
in recalculating Petitioner’s parole violation maximum date. Because Petitioner did
not serve any time solely on the Board’s warrant, he is not entitled to credit for time
served on the Board’s warrant.
Next, we address Petitioner’s challenge to the Board’s decision to deny him
credit for time spent at liberty on parole. The Prisons and Parole Code (Parole
Code)3 provides if a parolee under the Board’s jurisdiction who, during the period
of parole, “commits a crime punishable by imprisonment, for which the offender is
convicted or found guilty by a judge or jury or to which the offender pleads guilty
or nolo contendere,” the Board may, in its discretion, recommit the offender as a
parole violator. 61 Pa.C.S. § 6138(a)(1). If the Board determines to recommit a
2
Backtime is “that 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. & Parole, 483 A.2d
1044, 1047 (Pa. Cmwlth. 1984).
3
61 Pa.C.S. §§ 101-7301.
6
parolee as a CPV, as it did with Petitioner, “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.” Id. § 6138(a)(2). Paragraph
2.1 of Section 6138(a) sets forth that the Board “may, in its discretion, award credit
to an offender recommitted under paragraph (2) for the time spent at liberty on
parole.” Id. § 6138(a)(2.1).4
In Pittman, our Supreme Court held that when the Board exercises its
discretion under Section 6138(a)(2.1) of the Parole Code, “the Board must articulate
the basis for its decision to grant or deny a CPV credit for time served at liberty on
parole.” 159 A.3d at 474. Pittman requires the Board to articulate a reason for
denying credit for time spent at liberty on parole because “an appellate court hearing
the matter must have [a] method to assess the Board’s exercise of discretion.” Id.
Accordingly, our task is to evaluate whether the Board abused its discretion by
denying Petitioner credit for the time he spent at liberty on parole. This Court has
explained, generally, the Board’s reasons must be “accurate and related to the
parolee’s offenses.” Marshall v. Pa. Bd. of Prob. & Parole, 200 A.3d 643, 650 (Pa.
Cmwlth. 2018). Further, the Board’s reasons must be “documented by the record.”
Plummer v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207, 1212 (Pa. Cmwlth. 2019).
Here, the Board considered Petitioner’s new conviction as an offense “the
same or similar to the original offense.” C.R. at 110. (capitalization omitted). The
Board also noted Petitioner’s history of supervision failures. Id. The Board
followed Pittman by supplying a rationale for its decision to deny Petitioner credit
for time spent at liberty on parole. The Board’s rationale was accurate, related to
4
Paragraph 2.1 supplies three limitations to the Board’s discretion, none of which apply here.
7
the offense, reasonable, and supported by the record. Accordingly, the Board did
not abuse its discretion by denying Petitioner credit for time spent at liberty on
parole.
IV. Conclusion
Based on the foregoing, we conclude Counsel fulfilled the requirements of
Turner, and our independent review confirms Petitioner’s arguments are meritless.
Accordingly, we grant Counsel’s Application to Withdraw. Additionally, the Board
appropriately applied the Parole Code and followed Pittman by supplying the
requisite rationale for its decision to deny Petitioner credit for time spent at liberty
on parole. Therefore, we conclude the Board did not commit an error of law or abuse
its discretion, and we affirm the Board’s Order.
______________________________
STACY WALLACE, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Yusef George, :
Petitioner :
:
v. : No. 491 C.D. 2023
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 16th day of April 2024, the August 1, 2023 Application to
Withdraw as Counsel filed by Kent D. Watkins, Esq. is GRANTED, and the April
21, 2023 order of the Pennsylvania Parole Board is AFFIRMED.
______________________________
STACY WALLACE, Judge