Opinion
No. 627 C.D. 2012
02-28-2013
Jared Kunkelman, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Jared Kunkelman petitions for review of the March 12, 2012, order of the Pennsylvania Board of Probation and Parole (Board), which denied Kunkelman's administrative appeal from the Board's decision to recommit him as a convicted parole violator. Kunkelman's counsel has also filed an Anders brief and a petition to withdraw from representation. We affirm the Board's order and grant counsel's petition to withdraw.
Anders v. California, 386 U.S. 738 (1967). When counsel believes that the issues raised by a parolee are frivolous, counsel may be permitted to withdraw if he: (1) notifies the parolee of his request to withdraw; (2) furnishes the parolee with a copy of a no-merit letter or Anders brief; and (3) advises the parolee of the right to retain new counsel or raise any new issues by submitting a brief on his own behalf. Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125 (Pa. Cmwlth. 2010). A brief or no-merit letter must set forth: (1) the nature and extent of counsel's review of the case; (2) the issues the parolee wishes to raise on appeal; and (3) counsel's analysis of why the appeal is frivolous or lacks merit. Id. at 126. Once we are satisfied that these requirements have been met, we will conduct an independent review of the record to determine whether the parolee's appeal is frivolous or lacks merit. Id.
On March 25, 2002, Kunkelman was sentenced to 5 to 10 years' incarceration for robbery and firearm offenses. He was released on parole on May 22, 2006.
On January 5, 2011, Kunkelman pled guilty to new firearm offenses in federal court. The Board received official verification of the federal conviction on April 20, 2011. On July 6, 2011, the Board held a parole violation hearing, at which Kunkelman waived his rights to counsel and to a full panel hearing. On August 23, 2011, the Board recommitted Kunkelman as a convicted parole violator to serve 24 months' backtime upon becoming available to Pennsylvania authorities.
On September 15, 2011, Kunkelman filed a timely pro se petition for administrative relief with the Board. On September 20, 2011, Kunkelman's counsel in the federal matter also filed a timely petition for administrative relief with the Board on Kunkelman's behalf. On March 12, 2012, the Board denied Kunkelman's administrative appeal, addressing only the issues raised in Kunkelman's counseled petition.
Kunkelman filed a timely pro se petition for review with this court. Following the appointment of counsel, Kunkelman filed an amended petition for review. His counsel also filed a petition to withdraw from representation and an Anders brief, stating that there are no non-frivolous issues preserved for appeal. We agree with counsel.
Where, as here, there is no constitutional right involved, an attorney seeking to withdraw need only file a no-merit letter. See Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42 n.4 (Pa. Cmwlth. 2010). If an Anders brief is filed when a no-merit letter would suffice, the Anders brief must at least contain the same information that is required in a no-merit letter. Id. at 42-43. --------
Here, the record shows that counsel notified Kunkelman of the request to withdraw, provided Kunkelman with a copy of the Anders brief, and advised Kunkelman of his right to file a brief on his own behalf. Counsel's brief also includes a description of the nature and extent of his review of the case, the issues Kunkelman raised in his petition for review, and counsel's analysis of why he believes the appeal is frivolous. Because counsel has satisfied these technical requirements, we will now conduct an independent review to determine whether the appeal is frivolous or lacks merit.
First, Kunkelman asserts that his parole revocation hearing was untimely. This claim lacks merit. The Board received official verification of Kunkelman's federal conviction on April 20, 2011. (C.R. Item Nos. 4-5.) The Board held the revocation hearing 78 days later, on July 6, 2011, which was well within the 120-day time limit. See 37 Pa. Code §71.4(1) (stating that a parole hearing arising out of a new criminal conviction must take place within 120 days of the Board's receipt of official verification of the conviction). Therefore, Kunkelman's hearing was timely.
Next, Kunkelman asserts that the Board held a revocation hearing on or about April 7, 2011, but never issued a decision, and then held a second revocation hearing on July 6, 2011. This claim also lacks merit. No transcript or other evidence of an April 2011 hearing exists in the certified record. Furthermore, Kunkelman did not raise any objection to the alleged prior hearing either at the July 2011 hearing or in his petition for administrative relief. Therefore, this claim is waived. See Newsome v. Pennsylvania Board of Probation and Parole, 553 A.2d 1050, 1052 (Pa. Cmwlth. 1989) (finding that the parolee waived his issues by failing to raise them before the Board either at the revocation hearing or in his administrative appeal).
Accordingly, because we conclude that Kunkelman's appeal lacks merit, we affirm the Board's order and grant counsel's petition to withdraw.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 28th day of February, 2013, we hereby affirm the March 12, 2012, order of the Pennsylvania Board of Probation and Parole and grant counsel's petition to withdraw from representation.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge