Opinion
No. 2317 C.D. 2012
08-16-2013
Nicholas Lebotesis, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Before this Court are the petition of Nicholas Lebotesis (Lebotesis) for review of the November 30, 2012 determination of the Pennsylvania Board of Probation and Parole (Board), which affirmed its recommitment of Lebotesis as a convicted parole violator and recalculation of his maximum sentence date, and the petition of Richard C. Shiptoski, Esq., Assistant Public Defender of Luzerne County (Counsel), for leave to withdraw as counsel for Lebotesis on the ground that the petition for review is frivolous and without merit. After review, we grant Counsel's petition and affirm the order of the Board.
At the time Lebotesis was paroled from a state prison on September 30, 2007, his maximum sentence date was February 27, 2021. (Certified Record (C.R.) at 19-23.) On January 4, 2012, he was arrested on new criminal charges, and on that same date, the Board issued its Warrant to Commit and Detain for violation of his parole. (C.R. at 28.) Lebotesis did not post bail, and on May 17, 2012, he pled guilty to forgery, and received a sentence of one-to-two years state confinement. (C.R. at 61.) He signed a Waiver of Revocation Hearing and Counsel/Admission Form (C.R. at 58) and by decision mailed August 17, 2012, the Board recommitted Lebotesis to a state institution as a Convicted Parole Violator, to serve nine months backtime, with a reparole to a state detainer sentence effective on or after May 14, 2013. (C.R. at 70.) Lebotesis' maximum sentence date was recalculated to January 12, 2026. (C.R. at 68.)
"Backtime is that part of an existing judicially-imposed sentence which the Board directs a parolee to complete following a finding...that the parolee violated the terms and conditions of parole, and before the parolee begins to serve the new sentence." Cimaszewski v. Pennsylvania Board of Probation and Parole, 582 Pa. 27, 33 n.1, 868 A.2d 416, 419 n.1 (2005).
Lebotesis requested administrative relief and alleged that his new maximum date was excessive; he also objected to the May 2013 reparole date calculation. By decision mailed November 30, 2012, the Board denied Lebotesis' request for administrative relief and affirmed the Board's August 17, 2012 decision. (C.R. at 92-3.)
On December 26, 2012, Lebotesis filed a pro se Petition for Review with this Court, alleging that the Board's decision to recommit him for nine months backtime as a result of his new conviction, and its decision to recalculate his maximum sentence date to January 12, 2026, without allowing him credit for the four years, three months, and three days he spent at liberty while on parole, constituted an abuse of discretion and amounted to double jeopardy. (Lebotesis' Petition for Review.) On April 19, 2013, Lebotesis' appointed counsel filed a Petition for Leave to Withdraw as Counsel and, in support thereof, filed an Anders Brief.
An "Anders brief" refers to a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and the decisions of our Supreme Court with respect to appointed counsel's obligations where he seeks leave to withdraw from representing a criminal defendant on the ground that the appeal is frivolous.
When appointed counsel for an inmate in an appeal from a decision of the Board seeks to withdraw as counsel on the ground that the appeal is frivolous or without merit, he must satisfy the following procedural requirements: 1) he must notify the inmate of his request to withdraw; 2) he must furnish the inmate with a copy of a sufficient Anders brief or no-merit letter; and 3) he must advise the inmate of his right to retain new counsel or raise any new points he might deem worthy of consideration by submitting a brief on his own behalf. Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125 (Pa. Cmwlth. 2010); Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22-25 (Pa. Cmwlth. 2009) (en banc); Zerby v. Shanon, 964 A.2d 956, 958-60 (Pa. Cmwlth. 2009). Here, Counsel has satisfied all of these requirements.
A no-merit letter must set forth: 1) the nature and extent of counsel's review of the case; 2) each issue that the inmate wishes to raise on appeal; and 3) counsel's explanation of why each of those issues is meritless. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009); Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009).
"[T]he purpose of ... a no-merit letter is to ensure that court-appointed counsel has discharged his or her duty to carefully assess any claims available to an indigent appellant." Furthermore, the "failure to discharge such duty will hinder our independent examination of the merits of the appeal."
Counsel's Anders brief adequately discusses all of the issues raised by Lebotesis and explains his determination that any appeal of the Board's decision is frivolous and without merit. Specifically, Counsel addresses Lebotesis' argument that the Board's denial of credit for the period of time spent at liberty while on parole, or "street time," along with his recommitment as a result of his new conviction and one-to-two year sentence, is excessive and constitutes double jeopardy. Counsel also addresses other issues not raised in Lebotesis' Petition for Review, but rather in his request for administrative relief.
In addition to reviewing the Petition for Leave to Withdraw, we independently evaluate the proceedings before the Board to determine whether the appeal is without merit. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). After a review of the record, we find no merit to Lebotesis' assertion that the Board erred in declining to award him credit for the period of time spent at liberty while on parole or in the recalculation of his parole violation maximum sentence date. Section 6138 (a) (1) of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138(a) (1), grants the Board power to recommit a parolee. Section 6138 (a)(2) of the Code states that "[i]f the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had parole not been granted and, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole." 61 Pa. C.S. § 6138 (a)(2). Section 6138 (2.1) allows the discretionary award of credit to a parolee who has been recommitted for time spent at liberty on parole, unless the crimes committed are certain enumerated offenses in which the loss of "street time" would, in effect, be mandatory. 61 Pa. C.S. § 6138 (2.1). Thus, the denial of credit for Lebotesis' "street time" was clearly within the Board's discretion. Further, our Supreme Court has ruled that constitutional prohibitions against double jeopardy are inapplicable to parole revocation proceedings since they are not part of a criminal prosecution; the granting and rescinding of parole are purely administrative functions. Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 252, 501 A.2d 1110, 1112 (1985).
Nor do we find any merit to the issues raised by Lebotesis in his request for administrative relief. Lebotesis relied upon our Supreme Court's decision in Ohodnicki v. Pennsylvania Board of Probation and Parole, 418 Pa. 316, 211 A.2d 433 (1965), and this Court's decision in McCauley v. Pennsylvania Department of Probation and Parole, 510 A.2d 877 (Pa. Cmwth. 1986), for the proposition that the Board lacked power to recommit beyond the state parole maximum date set by Inmate's sentencing court, and cannot alter a judicially-imposed sentence. However, Ohodnicki clearly indicates that in declining to extend credit for time spent at liberty while on parole, the Board is not unlawfully extending the sentence term of a convicted parole violator, but merely acting under express statutory authority - the resulting extension of the expiration date of the maximum term of the original sentence does not constitute a change in such sentence. Ohodnicki, 418 Pa. at 318-19, 211 A.2d at 435. In McCauley, our Court considered a revocation order that specified that an inmate was to serve eighteen months backtime, a period that would have exceeded the time remaining on his unexpired sentence; our Court indicated that the Board could only require the inmate to serve the remaining balance, since the Board lacks power to alter a judicially-imposed sentence. McCauley, 510 A.2d at 879 n.8.
Section 6138 (a)(2) of the Code states:
(2) If the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had parole not been granted and, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole.
Here, Lebotesis had a total of 4,899 days remaining on his sentence at the time he was paroled, and as a result of his new conviction, he was sentenced to serve nine months backtime. In his Anders brief, Counsel cites our decision in Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984), wherein backtime imposed by the Board upon parole violations is distinguished from sentences imposed by the judiciary upon convicted criminal defendants:
Lebotesis was paroled from the State Correctional Institution at Retreat on September 30, 2007 with a maximum sentence date of February 27, 2021. (C.R. at 19-23.) --------
A 'sentence' has been defined as the judgment formally pronounced by the court upon a defendant who has been convicted in a criminal prosecution which awards the punishment to be inflicted....By comparison, "backtime" is merely 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....We have previously held that the Board's imposition of backtime is not a sentence on the parole violation nor analogous to a sentence....Rather, when the Board imposes backtime, it is establishing a new parole eligibility date for the parolee, in effect, a recomputed minimum term. Upon completion of the Board-imposed backtime, the parolee has a right to again apply for parole and have the Board consider that application.Krantz, 483 A.2d at 1047-8 (citations and footnotes omitted).
Accordingly, we grant the Petition for Leave to Withdraw and affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 16th day of August, 2013, the Petition for Leave to Withdraw as Counsel filed by Richard C. Shiptoski, Esq., Assistant Public Defender of Luzerne County in the above-captioned matter is hereby GRANTED and the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge
Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 44 (Pa. Cmwlth. 2009) (citation omitted) (quoting Presley v. Pennsylvania Board of Probation and Parole, 737 A.2d 858 (Pa. Cmwlth. 1999)).