Opinion
No. 904 C.D. 2012
04-10-2013
Yusuf Mitchell, Petitioner v. John J. Talaber and Pennsylvania Board of Probation and Parole, Respondents
BEFORE: HONORABLE BERNARD L.McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Yusuf Mitchell (Mitchell) petitions for review of the April 16, 2012 order of the Pennsylvania Board of Probation and Parole (Board), which dismissed as untimely Mitchell's petition for administrative relief from the Board's March 20, 2008 decision modifying his parole violation maximum date. Richard C. Shiptoski, Esquire, the Assistant Public Defender of Luzerne County (Counsel), has filed an application to withdraw as counsel, asserting that Mitchell's petition is time-barred and therefore frivolous. We grant the application to withdraw and affirm the Board's order.
On November 20, 2000, a trial court sentenced Mitchell to 3 to 6 years' imprisonment at the State Correctional Institution at Pittsburgh following his convictions for drug possessory offenses. On November 10, 2003, Mitchell was paroled with conditions, and his maximum parole violation date was listed as July 31, 2006. On June 5, 2006, the Board issued a decision to detain Mitchell pending disposition of criminal charges stemming from his arrest on April 8, 2006. On March 8, 2007, Mitchell was convicted of the new criminal offenses. By decision recorded June 8, 2007, the Board recommitted Mitchell as a convicted parole violator and ordered him to serve 12 months backtime at the State Correctional Institution at Fayette for the drug possessory convictions. In the June 8, 2007 decision, Mitchell's parole violation maximum date was listed as February 2, 2009. (C.R. at 1, 8, 12, 14, 17.)
By decision recorded March 20, 2008, the Board modified Mitchell's parole violation maximum date to February 19, 2009. The Board's decision notified Mitchell that if he wished to appeal the modification of his parole violation maximum date, he must file a request for administrative relief with the Board within 30 days. (C.R. at 19.)
Four years later, on March 29, 2012, Mitchel filed a Pro Se Request for Administrative Relief with the Board, challenging his parole violation maximum date and requesting that it be recalculated in a manner that does not exceed the original maximum sentence imposed by the trial court. By correspondence dated April 16, 2012, the Board dismissed Mitchell's petition for administrative review as untimely. (C.R. at 20, 21, 24, 26.)
On May 11, 2012, Mitchell filed a pro se petition for review with this Court, and we appointed Counsel to represent Mitchell. The Board filed a motion to limit the issues on appeal, and this Court granted the motion, limiting the issue on appeal to whether the Board properly dismissed Mitchell's request for administrative relief because it was filed untimely.
Thereafter, Counsel filed an application to withdraw, stating that Mitchell's appeal is frivolous. In accordance with Anders v. California, 386 U.S. 738 (1967), Counsel also submitted a brief to this Court, confirming his review of the record and applicable case law and his conclusion that Mitchell's appeal to the Board was filed untimely.
In Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125 (Pa. Cmwlth. 2010), this Court stated that when counsel believes 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 points he might deem worthy of consideration by submitting a brief on his own behalf. Additionally, 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 in concluding that the appeal is frivolous or lacks merit. Encarnacion, 990 A.2d at 126. Once this Court is satisfied that these requirements have been met, we will then make an independent evaluation of the proceedings before the Board to determine whether the parolee's appeal is frivolous or, in this case, lacks merit. Id.
Where court-appointed counsel seek to withdraw from a case in which there is no constitutional right to counsel, counsel need not file an Anders brief but, rather, may file a no-merit letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). Although a no-merit letter would have been proper in this case, we will not deny an application to withdraw simply because an attorney has filed an Anders brief where a no-merit letter would suffice. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 n.4 (Pa. Cmwlth. 2009). Instead, we apply the standard of whether the petitioner's claims are without merit, rather than whether they are frivolous. Id.
Here, the filings indicate that Counsel notified Mitchell of his request to withdraw, provided Mitchell with a copy of the Anders brief, and advised Mitchell of his right to submit a brief on his own behalf. Counsel's brief shows the nature and extent of his review of the case, sets forth the issue Mitchell raises, and provides Counsel's analysis in concluding that the appeal is untimely and frivolous. Therefore, we conclude that Counsel has satisfied the technical requirements to withdraw, and we shall now conduct an independent review to determine whether Mitchell's appeal lacks merit.
On appeal, Mitchell asserts that the Board abused its discretion in dismissing his administrative review as untimely.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence. 2 Pa. C.S. §704; Adams v. Board of Probation and Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005). --------
Pursuant to the regulation at 37 Pa. Code §73.1(b)(1), an individual may challenge the calculation of his parole maximum violation date by filing a petition for administrative review. Evans v. Pennsylvania Department of Corrections, 713 A.2d 741, 743 (Pa. Cmwlth. 1998). "Petitions for administrative review shall be received at the Board's Central Office within 30 days of the mailing date of the Board's determination." 37 Pa. Code §73.1(b)(1). If an individual files a petition for review beyond the 30-day time-limit, barring exceptional circumstances that are not present here, the petition will be deemed untimely and the Board will lack jurisdiction to entertain the petition. Ayers v. Pennsylvania Board of Probation and Parole, 565 A.2d 1257, 1259 (Pa. Cmwlth. 1989).
In this case, the certified record establishes that on March 20, 2008, the Board recalculated and modified Mitchell's parole maximum violation date to February 19, 2009. (C.R. at 19.) On March 29, 2012, Mitchell filed a request for administrative review, challenging the arithmetic and lawfulness of the Board's recalculation. (C.R. at 20). Consequently, Mitchell's petition for administrative review is patently untimely, being filed approximately four years late. On this record, we conclude that Mitchell's assertion that the Board abused its discretion in dismissing his petition is wholly devoid of merit.
Accordingly, we grant Counsel's application to withdraw and affirm the Board's order.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 10th day of April, 2013, the application to withdraw as counsel filed by Richard C. Shiptoski, Esquire, the Assistant Public Defender of Luzerne County, is granted. The April 16, 2012 order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge