IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Travis Lee Kitchen, :

Petitioner :

:

v. : No. 2161 C.D. 2014

: Submitted: July 2, 2015

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE LEAVITT FILED: September 30, 2015

Travis Lee Kitchen petitions for review of an adjudication of the 

Pennsylvania Board of Probation and Parole (Board) denying his administrative 

appeal. Kitchen’s appointed counsel, Erie County Assistant Public Defender Tina 

M. Fryling (Counsel), has filed an application for leave to withdraw as counsel. 

Finding no error in the Board’s decision, we affirm and also grant Counsel leave to 

withdraw.

Kitchen’s original sentence stems from convictions in 1999 for 

receiving stolen property and bad checks and convictions in 2000 for sexual abuse 

of children (2 counts). He received an aggregated sentence on all of the charges 

equaling 4 years, 10 months to 14 years, eight months. His maximum sentence 

date was calculated to be March 2, 2014.
2

On September 19, 2005, Kitchen was paroled. He remained on parole 

until May 14, 2013, when he was arrested on new criminal charges of possession 

of a controlled substance, with intent to deliver. Specifically, Kitchen was charged 

with selling Oxycodone tablets to a confidential informant on two occasions in 

2012. A Board detainer was then lodged against him. Kitchen remained in prison 

on the new criminal charges because he was unable to post bail.

On February 26, 2014, Kitchen entered a guilty plea to one count of 

delivery of a controlled substance and was sentenced to a term of incarceration 

ending on May 8, 2014, at which time he was detained on the Board’s warrant and 

committed to SCI-Albion. 

Prior to his return to SCI-Albion, Kitchen waived his right to counsel 

and to a panel hearing and requested that his hearing be held before an examiner. 

Certified Record (C.R.), Item 10 at 96-97. After the hearing, the examiner issued a 

report recommending that Kitchen be recommitted for 12 months. The report 

noted that the presumptive range for backtime to be served was 24-36 months; 

however, the examiner recommended a lesser recommittal because of Kitchen’s

positive adjustment on parole from 2005 until the time of his arrest. C.R. Item 10 

at 90. 

The report also chronicled Kitchen’s account of the circumstances of 

his arrest and conviction. Kitchen claimed that he had a friend with an opiate 

problem, whom he convinced not to buy drugs from “Michelle.” Instead, Kitchen 

offered to supply this friend with prescription drugs to relieve her withdrawal 

symptoms. Because his friend owed Michelle money, he gave Michelle, who 

turned out to be a confidential informant, some of these prescription drugs to pay 

his friend’s debt. Kitchen regards himself as an enabler, not a drug dealer. 
3

On May 28, 2014, the Board recommitted Kitchen as a convicted 

parole violator to serve 12 months backtime. Kitchen was convicted of delivery of 

a controlled substance pursuant to Section 13(a)(30) of the Controlled Substance, 

Drug, Device and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 233, as 

amended, 35 P.S. §780-113(a)(30). Section 13(f)(1) of the Drug Act classifies the 

delivery of Oxycodone, a Schedule II drug, as a felony with a statutory maximum 

sentence of 15 years. 35 P.S. §780-113(f)(1).1 Title 37 of the Pennsylvania Code 

establishes the presumptive ranges for parole violators convicted of drug crimes. 

37 Pa. Code §75.2.2 A felony drug law violation with a statutory maximum of 15 

years has a presumptive recommitment range of 24-36 months. Id.

 

1

It states, in relevant part, as follows:

Any person who violates clause (12), (14) or (30) of subsection (a) with respect 

to:

(1) A controlled substance or counterfeit substance classified in 

Schedule I or II which is a narcotic drug, is guilty of a felony and 

upon conviction thereof shall be sentenced to imprisonment not 

exceeding fifteen years, or to pay a fine not exceeding two hundred 

fifty thousand dollars ($250,000), or both or such larger amount as 

is sufficient to exhaust the assets utilized in and the profits 

obtained from the illegal activity. 

35 P.S. §780-113(f)(1).

2

It states, in relevant part, as follows:

If the Board orders the recommitment of a parolee as a convicted parole violator, 

the parolee shall be recommitted to serve an additional part of the term which the 

parolee would have been compelled to serve had he not been paroled, in 

accordance with the following presumptive ranges:

***

Drug Law Violations:

Felony with Statutory Maximum of 15 years [-] 24 months to 36 months[.]

37 Pa. Code §75.2.
4

The Board accepted the examiner’s report and reduced Kitchen’s 

backtime to 12 months, based on his “positive adjustment on parole since 2005 

until arrest.” Board opinion, C.R. No. 11 at 101. The Board recalculated

Kitchen’s maximum sentence date to October 19, 2022.

Kitchen filed an administrative appeal seeking “some credit” towards

his backtime. C.R. No. 12 at 103. His request was denied. The Board explained 

that Kitchen voluntarily waived his right to counsel and a panel hearing; that the 

Board was entitled to forfeit the time he spent at liberty on parole, based on his 

new conviction; and that his maximum sentence date was correctly calculated.

Kitchen petitioned for this Court’s review.3 The petition for review 

states that the Board erred in “extending his maximum sentence date.” Petition for 

Review, ¶5. Counsel seeks to withdraw from her representation of Kitchen 

because she believes this issue lacks merit. On March 30, 2015, this Court ordered 

Counsel to advise Kitchen of her request to withdraw and to inform Kitchen of his 

right to obtain counsel at his own expense or to file a pro se brief to this Court. 

Counsel complied with this Order on April 13, 2015. New counsel has not filed an 

appearance, and Kitchen has not filed a brief to this Court in support of the issue

raised in the petition for review.

We begin with the technical requirements for a petition to withdraw 

from representation. When counsel believes an appeal lacks merit he may file a 

petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

 

3 Our review is to determine whether substantial evidence supports the Board’s decision, whether 

the Board erred as a matter of law, and whether the parolee’s constitutional rights were violated. 

Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth. 

2009). 
5

1988). This Court has summarized the requirements established by Turner as 

follows:

[C]ounsel seeking to withdraw from representation of a 

petitioner seeking review of a determination of the Board 

must provide a “no-merit” letter which details “the nature 

and extent of [the attorney’s] review and list[s] each issue 

the petitioner wished to have raised, with counsel’s 

explanation of why those issues are meritless.”

Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (quoting Turner, 544 

A.2d at 928). “Counsel must also send to the petitioner: (1) a copy of the “nomerit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement 

advising petitioner of his right to proceed pro se or by new counsel.” Zerby, 964 

A.2d at 960. This Court then reviews the contents of the no-merit letter to 

determine whether it meets the requirements of Turner. Id. If it does, this Court 

conducts its own review of the merits of the parolee’s appeal. If we agree with 

counsel that the issues lack merit, then we will permit counsel to withdraw and 

deny relief. Id. 

Counsel’s no-merit letter details her review of Kitchen’s criminal 

record, addresses the issue raised by Kitchen and explains why it lacks merit. 

Additionally, the record establishes that Kitchen received a copy of the no-merit 

letter and Counsel’s petition to withdraw and was advised of his right to proceed 

pro se or by new counsel.

Having determined that Counsel has fulfilled the procedural

requirements for withdrawal of representation, we now consider the merits of 

Kitchen’s appeal. Because Kitchen has not filed a brief, we are left with his claim

in the petition for review that the Board erred in its calculation of his maximum 

sentence date.
6

Convicted parole violators are subject to the following:

(1) 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. 

(2) 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, except as provided under paragraph (2.1), 

shall be given no credit for the time at liberty on parole. 

(2.1) The board may, in its discretion, award credit to a parolee 

recommitted under paragraph (2) for the time spent at liberty on 

parole, unless any of the following apply: 

(i) The crime committed during the period of 

parole or while delinquent on parole is a crime of 

violence as defined in 42 Pa.C.S. § 9714(g)

(relating to sentences for second and subsequent 

offenses) or a crime requiring registration under 42 

Pa.C.S. Ch. 97 Subch. H (relating to registration of 

sexual offenders). 

(ii) The parolee was recommitted under section 

6143 (relating to early parole of inmates subject to 

Federal removal order). 

61 Pa. C.S. §6138(a). In sum, when a convicted parole violator is recommitted, he 

is not given credit for the time spent at liberty on parole, unless the Board, in its 

discretion, concludes a credit is warranted. When “reviewing the Board’s 

discretionary acts, this Court will only overturn the Board’s actions where the 

Board acts in bad faith, fraudulently, capriciously or commits an abuse of its 

power.” Badelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92, 96 
7

(Pa. Cmwlth. 2013), petition for allowance of appeal denied, 83 A.3d 416 (Pa. 

2014). An arbitrary, capricious or unreasonable determination is established when 

the Board’s actions cannot be supported by the record. Id.

Kitchen fails to establish, or even claim, the Board abused its 

discretion. In fact, the record establishes that the Board did consider the long 

period of time Kitchen spent on parole, prior to his arrest, and rewarded Kitchen by 

limiting his backtime to 12 months; the presumptive range permitted the Board to 

impose backtime of up to 36 months. 

The Board is not required to credit Kitchen for the time he spent at 

liberty on parole. Kitchen was given the opportunity to have his time spent outside 

of prison credited toward his sentence. However, he lost that privilege by 

committing a new criminal offense. As such, the Board properly forfeited his 

street time and recommitted him to serve the remaining portion of his original 

sentence.

Counsel has fulfilled the technical requirements for withdrawing her 

representation, and our independent review of the record before the Board reveals 

that Kitchen’s appeal lacks merit. Accordingly, we grant Counsel’s application for 

leave to withdraw and affirm the Board’s decision.

______________________________

MARY HANNAH LEAVITT, Judge

President Judge Pellegrini concurs in the result only.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Travis Lee Kitchen, :

Petitioner :

:

v. : No. 2161 C.D. 2014

: 

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

AND NOW, this 30th day of September, 2015, the order of the 

Pennsylvania Board of Probation and Parole, dated October 19, 2014, is 

AFFIRMED and the application for leave to withdraw as counsel filed by Tina M. 

Fryling is GRANTED.

______________________________

MARY HANNAH LEAVITT, Judge