Opinion
No. 1743 C.D. 2012
04-04-2013
Jose M. Oquendo, Jr., 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
Jose M. Oquendo, Jr., petitions for review, pro se, of the August 13, 2012, order of the Pennsylvania Board of Probation and Parole (Board), which affirmed the decision to recommit Oquendo as a convicted parole violator. Appointed counsel, Richard C. Shiptoski, Esquire (Counsel), has filed a petition for leave to withdraw asserting that the issues raised in the petition for review lack merit. We grant Counsel's petition for leave to withdraw and affirm the Board's recommitment order.
On March 17, 2009, Oquendo received an 18- to 48-month sentence (original sentence) for drug possession, false identification to law enforcement authorities, and driving under the influence. (C.R. at 1.) His maximum sentence date was October 16, 2012. The Board paroled Oquendo on April 18, 2010. (C.R. at 16.)
On March 18, 2011, Oquendo operated a vehicle while under the influence of alcohol, crashed into several cars, and severely injured two women. (C.R. at 50-52.) Oquendo was arrested and did not post bail. (C.R. at 63.) On August 14, 2011, the Board issued a warrant to detain Oquendo. (C.R. at 21.) Oquendo met the bail conditions on August 23, 2011, and returned to the State Correctional Institution at Dallas on August 25, 2011. (C.R. at 64, 70.)
On February 1, 2012, Oquendo pled guilty to two counts of driving under the influence, aggravated assault by vehicle while driving under the influence, simple assault, and driving with a suspended license. (C.R. at 56-58.) He remained in custody under the Board's detainer until May 2, 2012, when the Court of Common Pleas of Luzerne County sentenced him to 24 to 48 months of confinement. (C.R. at 57, 60.)
On June 6, 2012, the Board recommitted Oquendo as a convicted parole violator to serve 1 year, 9 months, and 19 days on the original sentence. (C.R. at 73.) The Board recalculated Oquendo's maximum sentence date to February 20, 2014. (Id.) Oquendo appealed to the Board.
On August 13, 2012, the Board denied the appeal. Oquendo filed the instant petition for review, raising three issues: (1) the Board erred by recommitting him to a period that exceeds the presumptive range; (2) the Board lacked authority to recalculate his maximum sentence date; and (3) the Board erred in recalculating his new maximum sentence date. (Pet. for Review, ¶ 6.) Counsel filed with the court a petition for leave to withdraw and an Anders brief alleging that, in his professional judgment, the issues raised in Oquendo's petition for review lack merit.
Anders v. California, 386 U.S. 738 (1967).
When court-appointed counsel concludes that a parolee's appeal is 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 satisfying the requirements of Turner ; 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 brief 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 concluding that the appeal has no merit and is frivolous. Id. at 126. Once these requirements have been met, this court then makes an independent evaluation of the proceedings before the Board to determine whether the appeal is wholly frivolous. Id.
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). --------
Here, on December 19, 2012, Counsel served Oquendo with his petition for leave to withdraw and provided an Anders brief alerting Oquendo of his intent to withdraw and informing Oquendo that he had the option of retaining new counsel or filing a pro se brief with this court. In the Anders brief, Counsel analyzed each point of appeal and determined that Oquendo's appeal lacked merit. In doing so, Counsel has satisfied the technical requirements of Anders; therefore, we must now independently analyze the merits of the appeal.
Oquendo first argues that the recommitment period imposed exceeded the presumptive range for the violations charged. We disagree.
The regulation at 37 Pa. Code §75.2 specifies the presumptive ranges for convicted parole violators. "As long as the period of recommitment is within the presumptive range for the violation, the Commonwealth Court will not entertain challenges to the propriety of the term of recommitment." Smith v. Pennsylvania Board of Probation and Parole, 524 Pa. 500, 504, 574 A.2d 558, 560 (1990).
Here, Oquendo pled guilty to: (1) two counts of driving under the influence (presumptive range of 3 to 6 months); (2) aggravated assault by vehicle while driving under the influence (presumptive range of 24 to 40 months); and (3) simple assault (presumptive range of 9 to 15 months). The aggregate presumptive range for the new offenses totals 39 to 67 months. 37 Pa. Code §75.2. Thus, the Board did not exceed the presumptive range by recommitting Oquendo to serve his unexpired term of 1 year, 9 months, and 19 days.
Next, Oquendo argues that the Board lacked authority to recalculate his maximum sentence date. We disagree.
Section 6138(a)(1) of the Prisons and Parole Code provides the Board with the authority to recommit a parole violator:
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). Thus, the Board had authority to recalculate Oquendo's maximum sentence date.
Finally, Oquendo argues that the Board erred in recalculating his maximum date to February 20, 2014. We disagree.
When the Board paroled Oquendo on April 18, 2010, his maximum sentence date was October 16, 2012; thus, he had 912 days remaining on his sentence. In the June 6, 2012, order, the Board credited Oquendo with 253 days for time that he was held on the Board's warrant from August 23, 2011, to May 2, 2012, when he was sentenced on the new charges. See Hears v. Pennsylvania Board of Probation and Parole, 851 A.2d 1003, 1007 (Pa. Cmwlth. 2004) (determining that an offender incarcerated on both a Board detainer and new criminal charges must get credit for all time served). The Board subtracted this credit from the 912 days remaining on Oquendo's sentence, recommitted him to serve 659 days, and properly recomputed the maximum sentence date to February 20, 2014.
Accordingly, because we conclude that Oquendo's appeal lacks merit, we grant Counsel's petition to withdraw and affirm the Board's order.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 4th day of April, 2013, we hereby grant the petition for leave to withdraw as counsel filed by Richard C. Shiptoski, Esquire, and affirm the August 13, 2012, order of the Pennsylvania Board of Probation and Parole.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge