Opinion
No. 1687 C.D. 2011
06-04-2012
Anthony Wallace, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before us is Richard C. Shiptoski's (Attorney Shiptoski) petition to withdraw as counsel for Anthony Wallace (Wallace) regarding Wallace's petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) which recommitted Wallace as a convicted parole violator to serve six months backtime and established Wallace's maximum date as July 20, 2016.
On September 20, 1975, Wallace was effectively sentenced to a term of ten to twenty years for third degree murder. Also, on September 20, 1975, he was effectively sentenced to a term of one year six months to five years for aggravated assault to be served consecutively to the murder sentence for a total sentence of eleven years six months to twenty-five years. On October 1, 1987, Wallace was released on parole. In a decision recorded November 3, 1989, and mailed on November 9, 1989, the Board recommitted Wallace to serve three months backtime as a technical parole violator for failure to report as instructed. The Board established Wallace's maximum date as May 9, 2001. On December 19, 1989, Wallace was released on parole. In a decision recorded on September 14, 1992, and mailed November 17, 1992, the Board recommitted Wallace to serve five months backtime as a technical parole violator for failure to report and drug use. The Board established Wallace's maximum date as September 21, 2001. On January 21, 1993, Wallace was released on parole. In a decision recorded May 2, 1996, and mailed June 6, 1996, the Board recommitted Wallace to serve fifteen months backtime as a technical parole violator for failure to report and use of drugs. The Board also recommitted Wallace to serve forty-two months backtime concurrently as a convicted parole violator for aggravated assault, simple assault, possession of an instrument of crime-generally, and possession of instrument of crime-weapon. The Board established Wallace's new maximum date as August 18, 2008. On January 29, 2003, Wallace was paroled to a state detainer sentence. That sentence was complete on December 27, 2006.
On July 2, 2008, the City of Philadelphia Police Department arrested Wallace and charged him with public drunkenness, marijuana possession, and knowing/intentional possession of a controlled substance. On July 3, 2008, the Board issued a warrant to commit and detain Wallace. On August 11, 2008, the Board detained Wallace pending the disposition of criminal charges. On August 18, 2008, Wallace was released from a state correctional institution because he had reached his maximum date. On October 9, 2008, the Board declared Wallace delinquent for control purposes effective July 2, 2008. On July 30, 2010, Wallace was found guilty of possession of marijuana, a misdemeanor, with no further penalty in the Municipal Court of Philadelphia. He was ordered to pay $318.00 in costs plus a lab fee of $135.00.
On February 15, 2011, the Board issued a warrant to commit and detain Wallace. On February 16, 2011, Wallace admitted to the marijuana conviction and waived his revocation hearing. In a decision recorded April 15, 2011, and mailed April 21, 2011, the Board recommitted Wallace to serve six months backtime as a convicted parole violator. The Board's order stated that Wallace was not eligible for reparole until June 30, 2011. The Board established a maximum date of July 20, 2016.
Wallace requested administrative relief and alleged that the recommitment for six months backtime violated the Board's regulations because it exceeded the presumptive range for the established violation, that the Board lacked authority to recommit him as a convicted parole violator because he was not convicted in a court of record, that the Board erred and violated his constitutional rights when it recomputed his new maximum date without providing him with an adequate explanation, and that the Board erred in the computation of his maximum date and did not provide him with forty-six days credit from July 2, 2008, until August 18, 2008, and with fifty-nine days credit from February 15, 2011, until April 15, 2011.
On August 26, 2011, the Board denied Wallace's request for administrative relief and concluded:
First, the record reflects that, on February 16, 2011, you knowingly and voluntarily chose to waive your right to a
revocation hearing and admit [sic] to being convicted of Possession of Marijuana in the Philadelphia Municipal Court at MC# 33701-2008 in violation of your parole. This admission included your acknowledgement that the conviction occurred in a court of record. In addition, the waiver/admission form specifically indicates that you chose to take said action of your own free will, without promise, threat or coercion. You also failed to withdraw the waiver/admission within the ten-day grace period. As such, the Board was justified in recommitting you for that offense. Purely for your information, Commonwealth Court has previously held that the Philadelphia Municipal Court is a Court of record. . . .
Second, the Board imposed recommitment period establishes a new parole eligibility date for a parole violator to apply for reparole. . . . The Board recommitted you to serve six months for the new offense in this matter. The record reflects that this recommitment period expired on June 30, 2011 and you are currently eligible to apply for reparole. Thus, any challenges to the imposed recommitment is [sic] moot at this point since that period has expired and you are already eligible to apply for reparole.
Finally, when the Board paroled you from a state correctional institution on January 29, 2003, your max date was August 18, 2008. In light of your recommitment as a convicted parole violator, which required you to forfeit credit for the period that you were at liberty on parole, you had 2028 days remaining on your sentence. . . . On July 2, 2008, authorities detained you for new criminal charges that were docketed in the Philadelphia Municipal Court at MC# 33701-2008. The Board lodged its detainer against you on July 3, 2008. You posted bail from the new criminal charges on July 4, 2008, but remained confined on the Board detainer. On August 18, 2008, the Board lifted its detainer due to the expiration of your original max date. On July 30, 2010, the court found you guilty of the new criminal charge and imposed a sentence of no further penalty. The Board re-lodged its detainer against you on February 15, 2011.
Based on these facts, the Board gave you 46 days of credit on your original sentence for the period you were incarcerated from July 3, 2008 to August 18, 2008 because you were incarcerated on the Board detainer during that period and credit for that period could not be applied to another sentence of imprisonment. . . . Subtracting this credit from the time you had remaining left 1982 days remaining on your sentence. Additionally, because you received a sentence of no further penalty for the new conviction, you became available to commence service of your original sentence when the Board re-lodged its detainer against you on February 15, 2011. Adding 1982 days to that date yields a new maximum sentence date of July 20, 2016. (Citations omitted).Board Decision, August 26, 2011, at 1-2; Certified Record at 84-85.
On October 27, 2011, the Board determined that Wallace could be granted parole.
The record does not contain the actual date that Wallace was paroled.
Attorney Shiptoski was assigned to represent Wallace. After review of Wallace's petition for review and the certified record, Attorney Shiptoski desires to withdraw and asserts that Wallace's petition for review is without merit.
Appointed counsel may withdraw from assisting an indigent parolee in appealing a parole revocation order, "[w]hen, in the exercise of his professional opinion, counsel determines that the issues raised . . . are meritless, and when the . . . court concurs. . . ." Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 928-929 (1988).
In reviewing a motion to withdraw, this Court must make an independent evaluation of proceedings before the Board to determine whether a parolee's appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). When this Court agrees with counsel's assertion that the appeal is without merit, this Court will permit counsel to withdraw when counsel has fulfilled the technical requirements set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must (1) notify the parolee of the request to withdraw, (2) furnish the parolee with a copy of the brief, and (3) advise the parolee of his right to retain new counsel to raise any new points that he might deem worthy of consideration. In the no merit letter or brief counsel must indicate the nature and extent of his review, the issues the parolee wishes to raise, and counsel's analysis in concluding that the appeal is without merit. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992).
Wallace petitioned for review and alleged that the Board's decision to recommit him as a convicted parole violator violated controlling law and the Board's regulations because he was not convicted in a court of record, that the six month recommitment of backtime exceeded the presumptive range for the violation as set forth in the Board's regulation, 37 Pa.Code §75.2, that the Board erred and violated his constitutional rights when it recomputed his maximum expiration date without providing him with an adequate explanation, that the Board did not give him proper credit, and that the Board lacked authority to recommit him when he was convicted after his maximum expiration date had expired.
With respect to the assertion that the Board improperly recommitted him as a convicted parole violator because he was not convicted in a court of record, Attorney Shiptoski concluded:
The record reflects that Mr. Wallace signed a Waiver of Revocation Hearing and Counsel/Admission form. The form contains language indicating that the offender knowingly, intelligently and voluntarily admits that he was convicted of the offense in a court of record and the offense(s) was punishable by imprisonment. . . .Attorney Shiptoski's Brief, December 19, 2011, (Brief) at 13-14.
In his pro se Petition for Review, Mr. Wallace argues that he was coerced into signing the above noted Waiver of Revocation Hearing and Counsel/Admission form by his parole agent by way of promises of early release from confinement and that all other information in the form was forged.
These assertions were not raised in the Administrative Appeal.
Issues not raised by a convicted parole violator before the Board in an Administrative Appeal were waived for the purposes of appellate review. . . .
The Board noted that the waiver admission form specifically indicates that Mr. Wallace chose to take this action of his own free will, without promise, threat or coercion and that he failed to withdraw the waiver/admission within the prescribed ten-day grace period. . . .
This Honorable Court impliedly ruled that the Philadelphia Municipal Court is a court of record. In Johnson v. Pa. Bd. of Prob. and Parole, 511 A.2d 894 (Pa. Cmwlth. . . 1986), the Court dealt with an issue of timelines [sic] of a revocation hearing after a conviction occurred in Philadelphia Municipal Court and an appeal de novo was taken in the Philadelphia County Common Pleas Court. . . . (Citations and footnote omitted).
Attorney Shiptoski accurately asserts that Wallace signed the Waiver of Revocation Hearing and Counsel/Admission Form which stated that he was convicted of the offense of marijuana possession in a court of record. While Wallace argues in his petition for review with this Court that he was coerced into signing the form with a promise of early release and that other information on the form was forged, Attorney Shiptoski correctly points out that Wallace did not raise this issue of coercion and forgery in his request for administrative relief. The failure to raise issues before the Board in the request for administrative relief results in a waiver of those issues before this Court. McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993). Therefore, because Wallace admitted in the Waiver form that he was convicted in a court of record, he cannot now raise the issue that he was not. This Court must agree with Attorney Shiptoski that this issue is without merit.
Assuming arguendo that Wallace did preserve this issue, this Court essentially noted that the Philadelphia Municipal Court qualifies as a court of record in Johnson v. Pennsylvania Board of Probation and Parole, 511 A.2d 894 (Pa. Cmwlth. 1984). Further, Wallace was convicted of misdemeanor marijuana possession.
With respect to whether the Board accurately computed his new maximum date, Attorney Shiptoski concluded:
According to Anthony Wallace, he turned over to a new criminal case at SCI-Dallas on January 29, 2003 and didn't max out on that case until December 28, 2006. . . . As such, any backtime owed should be calculated from December 28, 2006 which leaves 599 days remaining to his parole violation max date of August 18, 2008. . . .
In sum, Anthony Wallace argues that any backtime owed should be calculated from December 28, 2006 and the Board states that it begins on January 29, 2003 when Mr. Wallace was paroled to a detainer sentence but remained incarcerated.Brief at 15-16.
Here, we are faced with the issue commonly known as 'constructive parole.' A person on constructive parole is not released from prison; although paroled on his original sentence, he immediately begins serving his new sentence. . . .
. . . .
Pennsylvania law states that convicted parole violators should be given no credit for time at liberty on parole. . . .
Commonwealth Court has previously ruled that a parolee who remains incarcerated on a second sentence while on constructive parole from the first sentence is still considered to be 'at liberty on parole' and that the parolee should be given no credit for time 'at liberty on parole' and thus is not entitled to credit against his original sentence for the time on constructive parole. . . .
In light of the above, the calculation of backtime owed begins on January 29, 2003 when Mr. Wallace was paroled on his original charge to the state detainer sentence as explained in the order to commit. . . .
He is entitled to 46 days of credit on his original sentence for the period of July 3, 2008 to August 18, 2008 at which time he was incarcerated solely on the Board warrant. . . .
The period of time from January 29, 2003 to August 18, 2008 contains 2,028 days. This is to be reduced by the 46 days credit. Since the Board re-lodged its detainer on February 15, 2011, the 1982 days remaining commences on that date and yields a new parole violation max date of July 20, 2016. (Citations omitted).
This Court agrees with Attorney Shiptoski's analysis. Section 6138(a)(2) of the Prisons and Parole Code, 61 Pa.C.S. §6138(a)(2), clearly states that convicted parole violators shall receive no credit for time at liberty on parole. Further, this Court has held that when a parolee is paroled to a second sentence he is still considered to be at liberty on parole from the first sentence and is not entitled to credit for this period if he becomes a convicted parole violator. Hines v. Pennsylvania Board of Probation and Parole, 420 A.2d 381 (Pa. Cmwlth. 1980). Attorney Shiptoski's calculation of Wallace's maximum date is the same as the Board's calculation.
With respect to whether the Board had authority to revoke Wallace's parole and recommit him after the expiration of his maximum date of August 18, 2008, Attorney Shiptoski concluded:
Mr. Wallace was arrested by Philadelphia Police on July 2, 2008. . . .Brief at 17.
At the time of his arrest, he had a maximum parole violation date of August 18, 2008. . . .
He was convicted of possession of marijuana on July 30, 2010. . . .
. . . .
The Board retains jurisdiction to recommit a parolee convicted of a crime committed while on parole even after the expiration of an original maximum sentence. . . .
The Board can recommit and recompute the sentence of a parolee who commits a crime while on parole, but is not convicted until after the original sentence expired. . . . (Citations omitted).
Once again, this Court agrees with Attorney Shiptoski. It is well settled law that the Board has the authority to recommit a parolee as a convicted parole violator if he commits a crime while at liberty on parole even if he is not convicted until after the expiration of his maximum date. For instance, in Jezick v. Pennsylvania Board of Probation and Parole, 530 A.2d 1031 (Pa. Cmwlth. 1987), Michael Jezick (Jezick) was at liberty on parole when he was arrested on February 5, 1985, one week before the expiration of his maximum date. His maximum term expired. Thereafter, on March 10, 1986, Jezick was convicted. On May 2, 1986, following a revocation hearing, Jezick was recommitted to serve the unexpired term of his original sentence, when available. The Board denied Jezick's request for administrative relief. This Court affirmed.
With respect to whether the Board erred when it recommitted Wallace to backtime outside the presumptive range, Attorney Shiptoski concluded that the Board recommitted Wallace to serve six months backtime where the presumptive range was only one to three months and the Board failed to provide any justification for the excessive recommitment as required. See Duncan v. Pennsylvania Board of Probation and Parole, 687 A.2d 1179 (Pa. Cmwlth. 1996). Attorney Shiptoski agreed with the Board's determination that this issue was moot. Attorney Shiptoski noted that Wallace reached his parole eligibility date, and the Board issued an order to release him on parole. Because there is no relief available for Wallace relative to the recommitment of backtime without justification because he has already been ordered to be released on parole, Attorney Shiptoski finds that this issue is moot.
This Court agrees with Attorney Shiptoski. In Taylor v. Pennsylvania Board of Probation and Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000), this Court held that it will dismiss an appeal as moot when the occurrence of an event renders it impossible for this Court to grant the requested relief. Here, even though the Board erred when it recommitted Wallace in excess of the presumptive range without written justification, there is no relief available to Wallace as the Board has already ordered his release on parole. This issue is moot.
Accordingly, this Court grants Attorney Shiptoski's request and affirms the order of the Board.
This Court also notes that Attorney Shiptoski attached a letter from him to Wallace to his petition to withdraw which indicates that he has complied with the notification requirements to Wallace. See Craig. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 4th day of June, 2012, the petition to withdraw filed by Richard C. Shiptoski is granted and the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge