Opinion
No. 1767 C.D. 2014
06-02-2015
Rakim Murphy, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Rakim Murphy petitions for review of the September 17, 2014, determination of the Pennsylvania Board of Probation and Parole (Board) denying Murphy's request for administrative relief from a Board recommitment order and recalculation of Murphy's parole violation maximum date. Appointed counsel, David Crowley, Esquire (Counsel), has filed an application for leave to withdraw as counsel, asserting that Murphy's petition for review is wholly frivolous. We grant Counsel's application for leave to withdraw and affirm the Board's determination.
On March 7, 2005, the Court of Common Pleas of Philadelphia County sentenced Murphy to two concurrent five- to ten-year terms of incarceration. (R. at 1.) Murphy was paroled on January 14, 2010, with a maximum date of February 22, 2014. (R. at 9.) On May 19, 2010, Murphy was detained on technical parole violations and recommitted as a technical parole violator (TPV) to serve eight months' backtime. (R. at 14.) Murphy was reparoled on August 25, 2011, to an approved plan. (R. at 50.) Thereafter, Murphy left the premises of the approved plan without permission and was taken into custody on September 20, 2011. (Id.) Murphy was discharged from the approved plan to an approved residence on March 5, 2012. (Id.)
The Board issued a warrant to commit and detain Murphy for technical parole violations on April 30, 2013, and Murphy was taken into custody. (R. at 19, 50.) On June 20, 2013, Harrisburg police arrested Murphy and charged him with new criminal offenses. (R. at 20, 39.) Murphy did not post bail. (R. at 39.) On December 2, 2013, the Board recommitted Murphy as a TPV to serve six months' backtime. (R. at 20.) On December 4, 2013, Murphy pled guilty to simple assault, was sentenced to five months and 15 days to 18 months of incarceration, and was immediately paroled. (R. at 37, 42.)
In a decision mailed March 6, 2014, the Board modified its December 2, 2013, order and recommitted Murphy as a convicted parole violator (CPV) to serve nine months' backtime and set his maximum date at March 1, 2016. Murphy filed a petition for administrative relief, challenging the calculation of his maximum date. The Board denied administrative relief, and Murphy petitioned this court for review. Thereafter, Counsel filed a petition for leave to withdraw and an Anders brief with this court.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Anders v. California, 386 U.S. 738 (1967).
When counsel for a parolee concludes that the appeal is wholly frivolous, counsel may be permitted to withdraw if counsel: (1) notifies the parolee of his request to withdraw; (2) furnishes the parolee with a copy of an Anders brief or no-merit letter; and (3) advises the parolee of his right to retain new counsel or submit a brief on his own behalf. Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125 (Pa. Cmwlth. 2010). The Anders brief must include: (1) a procedural and factual history; (2) reference to anything in the record that may support the parolee's appeal; (3) counsel's conclusion that the parolee's appeal is frivolous; and (4) counsel's reasons for concluding that the parolee's appeal is frivolous. Encarnacion, 990 A.2d at 125 n.2.
In this case, because Murphy does not have a statutory right to counsel, Counsel was only required to submit a no-merit letter. See Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 24-25 (Pa. Cmwlth. 2009) (en banc). A no-merit letter must set forth: (1) the nature and extent of counsel's review of the case; (2) the issues that the parolee wishes to raise on appeal; and (3) counsel's explanation of why the issues are meritless. Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988). When counsel has submitted an Anders brief where a no-merit letter is sufficient, we will "apply the standard of whether the [parolee's] claims are without merit, rather than whether they are frivolous." Hughes, 977 A.2d at 26 n.4.
A constitutional right to counsel exists in a parole revocation matter when the parolee raises:
"[a] colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present."
Here, the record shows that Counsel notified Murphy of his request to withdraw, provided Murphy with a copy of his Anders brief, and advised Murphy 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 issues raised, and provides analysis as to why Counsel concluded that Murphy's appeal is meritless. Because Counsel has satisfied these technical requirements, we will now conduct an independent review of Murphy's appeal. Encarnacion, 990 A.2d at 126.
Murphy argues that the Board erred in recalculating his maximum date. We disagree.
Murphy was on parole from March 6, 2012, until April 30, 2013, for a total of one year and 55 days. According to Murphy, adding one year and 55 days to his original maximum date of February 22, 2014, would yield a new maximum date of April 19, 2015.
We observe that at the time of Murphy's parole on August 25, 2011, Murphy had a maximum date of February 22, 2014, which left 912 days remaining on his sentence. Because the parole on August 25, 2011, was a reparole from a technical violation recommitment, Murphy forfeited his time spent at liberty on parole from January 14, 2010, to May 18, 2010. Thus, 124 days were added to the 912 days, resulting in a total of 1,036 days of backtime owed.
In computing Murphy's new maximum date, the Board then credited Murphy for the time he spent in custody based solely on the Board's warrant. '"[T]ime spent in custody pursuant to a detainer warrant shall be credited to a [CPV's] original term . . . only when the parolee was eligible for and had satisfied bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant lodged against him.'" Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980) (citation omitted). Murphy spent from September 20, 2011, to March 5, 2012, and April 30, 2013, to June 20, 2013, totaling 218 days, in custody pursuant to the Board's detainer. Thus, Murphy was credited 218 days on the 1,036 days owed, resulting in 818 days of backtime owed.
Murphy was not available to serve his 818 days until December 4, 2013, when he was paroled from his new county sentence to the Board's detainer. Thus, the Board added 818 days to December 4, 2013, and calculated Murphy's new maximum date as March 1, 2016.
Accordingly, because we conclude that Murphy's appeal is meritless, we grant Counsel's application for leave to withdraw and affirm the Board's determination.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 2nd day of June, 2015, we hereby grant the application for leave to withdraw as counsel filed by David Crowley, Esquire, and affirm the September 17, 2014, determination of the Pennsylvania Board of Probation and Parole.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
Hughes, 977 A.2d at 26 (citation omitted).