Opinion
No. 1163 C.D. 2012
05-24-2013
Sheldon Miller, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Sheldon Miller (Miller), an inmate at State Correctional Institution - Greene, petitions this Court for review of the Pennsylvania Board of Probation and Parole's (Board) May 16, 2012 order denying his request for administrative relief. Miller's counsel, Harry J. Cancelmi, Jr., Esquire (Counsel), has filed an application for leave to withdraw as counsel, and has submitted a no-merit letter in support of his petition. We grant Counsel's application and affirm the Board's order.
On July 22, 2003, Miller was paroled from a 10 to 20-year sentence for attempted murder and attempted robbery, to a detainer in Mississippi, with a maximum release date of June 6, 2007. He was released from his Mississippi detainer sentence in March 2005. Thereafter, the Board transferred Miller's parole supervision to Mississippi, where he wished to reside with his family. On April 18, 2006, Miller was arrested and charged with homicide and other lesser charges. On June 7, 2011, after two hung jury homicide verdicts, he pled guilty to simple assault on a law enforcement officer, a misdemeanor, in the Circuit Court of Lamar County, Mississippi. On June 8, 2011, the Board lodged its detainer against Miller and, on June 14, 2011, he was returned to a Pennsylvania correctional institution.
On January 25, 2012, the Board conducted a revocation hearing on the new conviction. At the hearing, Parole Supervisor Cheryl Hartzell provided to Miller's counsel and submitted without objection, a certified copy of the Order of Conviction and Sentence from the Circuit Court of Lamar County, Mississippi (Order of Conviction), which attested to Miller's conviction for simple assault. By decision mailed February 13, 2012, the Board recommitted Miller as a convicted parole violator and directed that he serve 15 months of backtime. The Board recalculated Miller's maximum sentence date to April 18, 2015. On March 13, 2012, Counsel filed an appeal with the Board which the Board denied on May 16, 2012. Counsel filed a petition for review with this Court on June 15, 2012. On December 3, 2012, Counsel filed an application for leave to withdraw as counsel and a no-merit letter. On January 2, 2013, Miller, pro se, filed his brief with this Court.
"Our review in a parole revocation action is limited to determining whether the findings were supported by substantial evidence, whether constitutional rights were violated, or whether the Board committed an error of law." Flowers v. Pennsylvania Bd. of Prob. & Parole, 987 A.2d 1269, 1271 n.3 (Pa. Cmwlth. 2010).
This Court must first consider Counsel's application to withdraw his appearance. Pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1998) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (Turner/Finley), an attorney seeking to withdraw representation must review the case zealously, and:
then submit a 'no-merit' letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation omitted). "[C]ounsel must fully comply with the procedures outlined in Turner to ensure that each of the petitioner's claims has been considered and that counsel has a substantive reason for concluding that those claims are meritless." Hont v. Pennsylvania Bd. of Prob. & Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996). "Counsel must also send to the petitioner: (1) a copy of the 'no-merit' letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed [pro se] or by new counsel." Wrecks, 931 A.2d at 721. "[T]he court does not reach an examination of the merits of the appeal until it is satisfied that counsel has discharged its responsibility in complying with the technical requirements of . . . a no-merit letter." Wesley v. Pennsylvania Bd. of Prob. & Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992).
Accordingly, we review Counsel's no-merit letter to determine whether it properly lists Miller's issues and explains why the appeal lacks merit. Miller raises six issues for this Court's review: 1) whether the Board violated Miller's due process rights when it admitted documents into the record that had not been provided to Miller in advance of the hearing; 2) whether certain evidence should have been excluded as hearsay; 3) whether evidence that Miller did not commit the act to which he pled guilty should have outweighed the evidence of his conviction; 4) whether the Board failed to consider his purported innocence when it declined to mitigate a backtime penalty; (5) whether the Board had authority to remove street time and recalculate Miller's maximum sentence date based upon his recommitment as a convicted parole violator; and, 6) whether Miller's counsel was ineffective in that he refused to contact and present several witnesses identified by Miller.
Although the ineffective assistance of counsel issue was not raised in Miller's petition for review, but instead, in Miller's pro se brief to this Court, the issue is not waived. "We may not impute a waiver of the ineffectiveness issue where hearing counsel and administrative appellate counsel were one and the same." Vereen v. Pennsylvania Bd. of Prob. & Parole, 515 A.2d 637, 639 (Pa. Cmwlth. 1986). "[C]ounsel [can] not be expected to argue [his] own ineffectiveness." Commonwealth v. Kenney, 463 A.2d 1142, 1143 n.1 (Pa. Super. 1983). The ineffectiveness issue is not addressed in Counsel's no-merit letter, presumably because Miller's pro se brief was filed after Counsel submitted his application to withdraw as counsel and since he acted as both hearing and appellate counsel. Because, as discussed herein, we conclude Miller's ineffective counsel claim lacks merit, its absence from the no-merit letter does not render the letter inadequate.
Counsel's letter reflects a "diligent review of the case," addressing the issues raised and explaining why those issues do not have merit. Wrecks, 931 A.2d at 721. The letter sets forth the proper standard of review, and explains that Counsel agrees with his client that the Board should have exercised its discretion differently. However, Counsel's no-merit letter also recognizes that the Board acted within its discretionary authority. Further, the record demonstrates that Counsel sent Miller the required documents. Finding that Counsel's letter satisfies the requirements of Turner and Finley, we review the merits of Miller's appeal.
Miller first argues that he was deprived of his due process rights because he was not provided with the documents that the Board relied upon in reaching its decision to revoke his parole in advance of the hearing. We disagree.
The record is clear that the sole basis for the Board's decision was the "certified copy of court record proving conviction." Original Record at 104. "[C]onvictions are sufficient proof, by themselves, of both the direct and technical parole violations . . . ." Anderson v. Pennsylvania Bd. of Prob. & Parole, 497 A.2d 947, 950 (Pa. Cmwlth. 1985). Moreover, the Board was permitted to rely upon the certified copy of Miller's conviction. See Sanchez v. Pennsylvania Bd. of Prob. & Parole, 616 A.2d 1097 (Pa. Cmwlth. 1992). Miller was fully aware of his conviction before the revocation hearing and, in fact, testified at the hearing that he had pled guilty as reflected in the Order of Conviction. The record reveals that Miller's attorney was furnished a copy of the Order of Conviction at the hearing and that document was offered into evidence without objection. Further, Miller was given an opportunity during the hearing to address the conviction, and he did so. Accordingly, Miller's due process argument has no basis.
Miller also contends that the Board should not have relied upon hearsay contained in the various documents presented. Several documents offered at the hearing, including the Criminal Arrest and Disposition Report, the out-of-state police report and the supervision history, contained hearsay. However, as discussed above, the Board's decision was based solely upon the Order of Conviction, which alone was a sufficient basis for the Board to recommit Miller. Therefore, Miller's argument is without merit.
Miller next asserts that he introduced evidence at the revocation hearing which established he did not commit the offense to which he pled guilty, and the Board in its discretion should have concluded that such evidence outweighed a finding that he is a convicted parole violator. This Court has stated "that a parolee cannot use a parole revocation hearing to relitigate issues which have already been determined against him in other forums." Chapman v. Pennsylvania Bd. of Prob. & Parole, 484 A.2d 413, 417 (Pa. Cmwlth. 1984). Miller's conviction was proven by the Order of Conviction and confirmed by Miller himself.
Miller testified that he had pled guilty as reflected in the Order of Conviction and that no appeal was pending.
Moreover, Section 6138(a)(1) of the Prisons and Parole Code (Parole Code) provides:
A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.61 Pa.C.S. § 6138(a)(1) (emphasis added). Accordingly, the Board had discretionary authority to weigh the evidence and recommit Miller based upon his conviction while on parole. Therefore, we reject Miller's argument.
Miller also argues that the Board should have considered his purported innocence when it declined to mitigate a backtime penalty. We disagree.
Section 75.1 of the Board's Regulations provides for the discretionary application of presumptive ranges of parole backtime to be served where a parolee is convicted of a new criminal offense. Specifically, that section provides in pertinent part:
(a) Presumptive ranges of parole backtime to be served will be utilized if a parolee is convicted of a new criminal offense while on parole and the Board orders recommitment as a convicted parole violator after the appropriate revocation hearing.37 Pa.Code § 75.1. Under Section 75.2 of the Board's Regulations, the presumptive range for simple assault is 9 to 15 months. 37 Pa.Code § 75.2. The Board imposed 15 months of backtime.
(b) The presumptive ranges of parole backtime are intended to structure the discretion of the Board while allowing for individual circumstances in terms of mitigation and aggravation to be considered in the final decision.
. . . .
This Court has recognized that "[t]he Board, as the ultimate fact-finder, evaluates witness credibility, resolves conflicts in the evidence, and assigns evidentiary weight. We leave the sufficiency of . . . evidence to the Board's discretion . . . ." Flowers v. Pennsylvania Bd. of Prob. & Parole, 987 A.2d 1269, 1271 n.2 (Pa. Cmwlth. 2010) (citation omitted). Further, "[t]his Court will only interfere with the Board's exercise of administrative discretion where it has been abused or exercised in an arbitrary or capricious manner." Green v. Pennsylvania Bd. of Prob. & Parole, 664 A.2d 677, 679 (Pa. Cmwlth. 1995). Finally, "[w]here . . . a parole violation is unchallenged, admitted or supported by substantial evidence and the backtime imposed by the Board is within the presumptive range, the Board's discretionary imposition of backtime will not be reviewed by this Court." Mangone v. Pennsylvania Bd. of Prob. & Parole, 553 A.2d 91, 94 (Pa. Cmwlth. 1988) (emphasis added); see also Wright v. Pennsylvania Bd. of Prob. & Parole, 743 A.2d 1004 (Pa. Cmwlth. 1999). Thus, the Board was free to evaluate Miller's credibility, weigh his testimony, and in its discretion, decline to mitigate his backtime penalty in recommitting him. Given that the Board's decision to recommit Miller was based solely upon the Order of Conviction, and his backtime was within the presumptive range for the type of offense committed, Miller's argument fails.
Miller next contends that the Board did not have the authority to recalculate his maximum sentence date by removing his street time because, pursuant to McCauley v. Pennsylvania Board of Probation & Parole, 510 A.2d 877, 879 n.8 (Pa. Cmwlth. 1986), the Board "does not have the power to alter a judicially-imposed sentence." We disagree. This Court previously rejected the same argument made by Miller, that the application of Section 6138(a) of the Parole Code is a violation of the constitutional separation of powers. See Davidson v. Pennsylvania Bd. of Prob. & Parole, 33 A.3d 682 (Pa. Cmwlth. 2011).
The Board acted in accordance with the law when it recalculated Miller's maximum sentence date. Section 6138(a)(2) of the Parole Code, in effect at the time of Miller's parole revocation, provided:
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 the parole not been granted and shall be given no credit for the time at liberty on parole.61 Pa.C.S. § 6138(a)(2) (emphasis added).
Act 122 of 2012 amended Section 6138(a)(2) to permit the Board, in its discretion, to credit time spent at liberty on parole, subject to certain restrictions. See 61 Pa.C.S. § 6138(a)(2.1). --------
Contrary to Miller's assertion, an extension of the maximum sentence date as provided under Section 6138(a)(2) of the Parole Code does not constitute the alteration of a judicially-imposed sentence, but instead is the application of that sentence with the withdrawal of credit for time at liberty on parole. Davidson. Because the Board acted in accordance with Section 6138(a)(2) of the Parole Code when it recalculated Miller's maximum sentence date, his argument is without merit.
Finally, Miller contends that his counsel was ineffective because Counsel failed to contact certain witnesses and make them available at the hearing. We disagree.
In LaCourt [v. Pennsylvania Board of Probation & Parole, 488 A.2d 70 (Pa. Cmwlth. 1985)] this Court adopted a two-tiered test for determining whether a parolee is entitled to relief based upon counsel's alleged ineffective performance. Under the LaCourt test, a parolee must show (1) counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed by law; and (2) counsel's errors were so serious that there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. We also note that the parolee bears the burden of showing counsel's ineffectiveness. Additionally, in reviewing counsel's performance we must examine counsel's stewardship in light of the standards existing at the time and will not impose upon counsel the qualities of a seer who is able to predict future developments in the law.Vereen v. Pennsylvania Bd. of Prob. & Parole, 515 A.2d 637, 640 (Pa. Cmwlth. 1986) (citations omitted).
Miller contends that his witnesses would have provided information regarding his "claim of innocence in the Mississippi case." Miller Br. at 9. However, because the Order of Conviction established his parole violation and Counsel was precluded from relitigating Miller's conviction at the revocation hearing, Counsel's options were limited in his representation of Miller at the hearing. Counsel did, however, have Miller testify about the circumstances behind his guilty plea. Thus, we conclude that Miller has not met his burden of demonstrating that Counsel made errors so serious that he was not functioning as "counsel," as referenced in the first prong of the test.
In regard to the second prong of the test, Miller's conviction was proven by the Order of Conviction and confirmed by Miller himself. His parole was revoked on that basis. Accordingly, Miller cannot establish that "[C]ounsel's errors were so serious that there is a reasonable probability that but for [C]ounsel's errors, the result of the proceeding would have been different." Vereen, 515 A.2d at 640. Therefore, Miller's argument fails.
For all of the above reasons, Counsel's application for leave to withdraw as counsel is granted, and the Board's decision is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 24th day of May, 2013, Counsel's application for leave to withdraw as counsel is granted, and the Pennsylvania Board of Probation and Parole's May 16, 2012 denial of Miller's administrative appeal is affirmed.
/s/_________
ANNE E. COVEY, Judge