IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Flannery

, :

Petitioner :

:

v. :

: Commonwealth of Pennsylvania : and Pennsylvania Probation and Parole : Board, : No. 470 C.D. 2019

Respondents : Submitt ed: November 15 , 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON

, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: February 7, 2020

Joseph Flannery (Flannery) petition s this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) March 6, 2019 order denying
his request for administrative relief from the Board’s August 15, 2017 order (mailed
August 25, 2017) recommit ting him (Recommitment Order) as a convicted parole
violator (CPV)

. Flannery is represented in this matter by Schuylkill County Public
Defender Kent D. Watkins, Esquire (Counsel), who has filed a n Application to

Withdraw as Counsel (Application) and submitted a n o

- merit letter in support thereof

. After review, we grant Counsel’s Application and affirm the Board’s order.

Flannery is an inmate at the State Correctional Institution (SCI) at
Mahanoy . On August 26, 2015

, Flannery was paroled to a county detainer from his

3

- to 10

- year senten ce for the charge of person not to possess, use firea r ms. (Original

Sentence). See Certified Record (C.R.) at 1, 7

. Flannery’s Original Sentence2

maximum release date was February 27, 2022. Flannery’s parole release date was
September 20, 2015. See C.R . at 7.

On June 17, 2016, Flannery was arrested in Montgomery County for two
counts of possession of a firearm, two counts of possession of a controlled substance
by a person not registered, and use or possession of drug paraphernalia. On the same

dat e, the Board issued a warrant to commit and detain Flannery. On June 30, 2016,
Flannery waived representation of counsel and a detention hearing.

By Board decision recorded July 25, 2016 ( July 25 , 2016 Board

Decision) and notice thereof issued on Augus t 24, 2016

, the Board detain ed Flannery
pending disposition of the criminal charges. See C.R. at 32. On October 3, 2016,
Flannery filed an administrative remedies form challenging the July 25, 2016 Board

Decision

. On December 8 , 201 6

, Flannery filed a P etition for Administrative Appeal
with the Board requesting that he be placed at liberty on parole during the pendency
of the criminal proceedings ( December 2016 Administrative Petition)

. On February

9, 2017, the Board issued a decision to continu e to det ain Flannery pending
disposition of the criminal charges.

On June 6, 2017, following a jury trial, Flannery was found not guilty of
possessing a firearm

, but was found guilty of one count of possessing a controlled
substance by a person not registered. 1 Flannery was sentence d to time served (365
days) to 23 months.

On August 15, 2017

, the Board issued the Recommitment O rder 2

directing that Flannery be recommitted as a CPV to serve 9 months of backtime for

1 The Commonwealth withdrew the second count of possessi on of a controlled substance by a person not registered

. 2 The Recommitment O rder reflects that Flannery’s O riginal Sentence maximum release date was Fe bruary 27, 2022; he was paroled on September 20, 2015, at which time he owed 2,352 days; his custody for return date was June 7, 2017; and his new Original Sentence maximum release date was November 15, 2023. See C.R. at 68.3

the controlled substance conviction. The Recom mitment Order advised Flannery that

t he Board, in its discretion, did not award him credit for time he spent at liberty on
parole because he was “ STILL USING DRUGS [A ND] NOT ADJUSTING WE LL TO

PAROLE .” C.R. at 70. The Recommitment Order stated :

IF YOU WIS H TO APPEAL THIS DECISION, YOU MUST FILE A REQUEST FOR ADMINISTRATIVE RELIEF WITH THE BOARD WITHIN THIRTY (30) DAYS OF THE MAILING DATE OF THIS
DECISION. THIS REQUEST SHALL SET FORTH
SPECIFICALLY THE FACTUAL AND LEGAL BASES FOR THE
ALLEGATIONS. YOU HAVE THE RIGHT TO AN ATTORNEY IN THIS APPEAL AND IN ANY SUBSEQUENT APPEAL TO
THE COMMONWEALTH COURT.

C.R. at 71.
On January 17, 2019, the Board received Flannery’s Administrative
Appeal and Petition for Review ( January 2019 Administrative Petition) in an

envel ope postmarked January 15, 2019. 3 Therein, Flannery raised substantive and
constitutional challenges to the Board’s Recommitment Order.

On February 1, 2019, Flannery filed in this Court a “Petition for Writ of
Mandamus for a Court Order Compelling the [] Board to Answer the Appeal and Re[

- ]parole [Flannery ]” (February 2019 Petition)

. 4 In the February 2019 Petition

, Flannery alleged that he had filed administrative appeals from the Recommitment
Order and that the Board had not ruled upon them. Specific ally, Flannery averred

, inter alia :
Thereafter, [Flannery] receiv [ed] the Board’ s decision,

[Flannery] [filed] a Petition with the Board [] f or, Administrative Appeal [(First Administrative Appeal) ]

, . . . and within that [First] Administrative Appeal Flan nery raised well (est)ablished law of: (1). That he had ‘ no ’ technical parole violations, (2). [T] hat he was gainfully employed full

- time, and (3). [T] hat the ‘ alleged ’ criminal

3 The document itself is date d January 8, 2018.

4 This Court docketed the February 2019 Petition at No. 60 M.D. 2019.4 infraction was based on pure conjuncture and speculation from a ‘ CONFIDENTIAL INFORMANT ’

, in which [sic] happened to be a ‘ close relative ’ , in w hich this relative would and did name anyone to get himself [ou] t of trouble. [ 5 ]

As this respected Court is aware [] there ‘ HAS ’ to be a [ time

- ]stamped copy afforded to [Flannery] of that [ First] Administrative Appeal, to [date] the Board of Parole ‘ HAS ’

‘ denied ’ such to [Flannery] , let alone an answer/reply to that appeal.

February 2019 Petition at 6, ¶ 14.

On March 6, 2019, the Board dismissed the January 2019 Administrative
Petition, exp laining:

[The January 2019 Administrative Petition] was received on January 17, 2019, in an envelope th at was postmarked on January 15, 2019. The Board de ci sion that established your parole violation maximum date was mailed to you on August 25, 2017. [Se ction 73.1(b)(1) of t] he Board ’ s [R] egulations provide that a petition for administrative review must be received at the Board ’ s Central Office within 30 days of the mailing date of the Board ’ s determination. 37 Pa. Code. § 73.l(b)(l). Ac c ordingly, the
p etition for administrative review is DISMISSED as untimely.

C.R. at 98. By March 11, 2019 order , this Court dismiss ed the February 2019
Petition on the basis that “[the Board] issued a decision mailed March 6, 2019
disposing of [Flannery’s] request for ad ministrative review, [Flannery] may file a

5 Importantly, Flannery d id not aver that

, in the First Administrative Appeal

, he challenged the Board’s calculation of his maximum release date or the Board’s failu re to credit his time spent at liberty on parole. In fact, the issues Flannery allege s that he raised in the First Administrative Appeal are the same issues he raised in his December 2016 Administrative Petition requesting that he be placed at liberty on parole during the pendency of the criminal proceedings

. However, i t is unclear whether the First Administrative Appeal is, in fact, the December 2016 Administrative
Petition

.5

timely appellate jurisdiction petition for review from that decision within 30 days

from the exit date of this order. ” March 11, 2019 Order, No. 60 M.D. 2019.

On April 3, 2019, Flannery filed a petition for revi ew with this Court
(April 2019 Petition)

. 6 On July 26, 2019 , Counsel filed the Application and a no

merit letter. On July 30, 2019, this Court ordered Counsel’s Application to be
considered along with the merits of Flannery’s appeal. On August 21, 2019, this
Court granted Flannery’s petition for an extension of time to file his brief.
Notwithstanding, Flannery did not file a brief with this Court.

This Court has held that in order to withdraw from representation

,

‘ counsel

. . . must provide a ‘no

- merit ’ letter which details ‘th e nature and extent of [counsel’ s] review and list[s] each issue the petitioner wished to have raised, with counsel's explanation of why those issues are meritle ss.’ ’ Zerby v. Shanon , 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (quotin g Commonwealth v. Turner , . . . 544 A.2d 927, 928 ([Pa.] 1988) ). ‘[ C]ounsel must fully comply with the procedures outlined in Turner to ens ure that each of the petitioner’ s claims has been considered and that counsel has [ ] substantive reason[s] for conc luding that those claims are meritless. ’ Hont v. Pa. Bd. of Prob. & Parole , 680 A.2d 47, 48 (Pa. Cmwlth. 1996)

. Counsel is also required to ‘ notify the parolee of his request to withdraw , furnish the parolee with [ ] a copy of

. . . [the] no

- merit letter satisfying the requirements of Turner , and inform the parolee of his right to retain new counsel or submit a brief on his own behalf. ’ Reavis v. Pa. Bd. of Prob. & Parole , 909 A.2d 28, 33 (Pa. Cmwlth. 2006)

. This Court must then ‘ conduct its own independent review of the petition to withdraw and must concur in counsel ’ s assessment before [it] may grant counsel leave to withdraw

. ’ Hont , 680 A.2d at 48

.

Stroud v. Pa. Bd

. of Prob. & Parole , 196 A.3d 667, 670 (Pa. Cmwlth. 2018)

.

6 Flannery c aptioned the April 2019 Petition, “Supplemented/Amended Petition for Writ of Mandamus Pursuant to Original Filing and Supplement for Board [ ’ ] s Error[s]

. ” April 2019 Petition
at 1.6 T his Court observes that Counsel’s no

- merit letter contains the
procedural history of Flannery ’s case, as well as Counsel’s review of the record and

relevant statutes and case law. Counsel served Flannery with a copy of the no

- merit
letter and his App lication, and notified Flannery that he may either obtain substitute

counsel or file a brief on his own behalf. 7 Counsel represented therein that t he sole
issue before this Court is whether the Board properly dismissed Flannery’s appeal as
untimely. In his no

- merit letter to this Court, Counsel provides sufficient reasons
why Flannery ’s appeal is without merit. Accordingly, this Court concludes that
Counsel complied with Turner’s technical requirements and will now independently

review the merits of Fla nnery ’s appeal to determine whether to grant or deny
Counsel’s Application.

According to the February 2019 Petition

, Flannery contends in his April

2019 Petition that

, at some point following the Recommitment Order , he filed his

F irst A dministrative A p peal with the Board, but the Board never issued a decision

thereon

. Although Flannery does not identify the date he allegedly filed the F irst

A dministrative A ppeal with the Board , h e asserts that the F irst A dministrative A ppeal
“sat unanswered for [near]l y (2)

- years[.]” April 2019 Petition at 3. Notwithstanding,

other than the January 2019 Administrative Petition , the certified record does not
contain an administrative appeal from the Recommitment Order

. 8

Flannery filed the January 2019 Administrative Petition (described by
Flannery as a second administrative appeal ) with the Board on January 15, 2019

. On

7 Flannery did not obtain substitute counsel or file a brief.

8 T he certified record contain s an administrative remedies form postmarked Octobe r 3, 2016, wherein Flannery challenges the July 25, 2016 Board D ecision detaining Flannery pending disposition of the criminal charges. The certified record also includes the December 2016 Administrative Petition

, wherein Flannery appeal s from the July 25 , 2016 Board Decision. It is
unclear if th ese are the document s to which Flannery references as the F irst A dministrative A ppeal. Notwithstanding , these filings occurred prior to the Board’s August 15, 2017 Recommitment Order
and do not constitute adminis trative appeals therefrom

.7

March 6, 2019, the Board dismissed the January 2019 Administrative Petition as untimely.
Section 73.1(b) of the Board’s Regulations provides, in pe rtinent part:

(1) A parolee, by counsel unless unrepresented, may petition for administrative review under this subsection of determinations relating to revocation decisions which are not otherwise appealable under subsection (a). Petitions for administra tive review shall be received at the Board ’ s Central Office within 30 days of the mailing date of the Board ’ s determination

. When a timely petition has been filed, the determination will not be deemed final for purposes of appeal to a court until the Boar d has mailed its response to the petition for administrative review. This subsection supersedes [Section 35.226 of the General Rules of Administra tive Practice and Procedure,] 1 Pa. Code § 35.226 [relating to final agency orders]

.

. . . . (3) Second or s ubsequent petitions for administrative review and petitions for administrative review which are out of time under this part will not be received.

37 Pa. Code § 73.1 (b) (emphasis added). “ Where a prisoner fails to meet this

deadline, this [C] ourt has held that the Board has no jurisdiction to entertain the
appeal and should dismiss it as untimely. ” McCaskill v. Pa

. Bd. of Prob . & Parole

, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993)

.

Because Flannery did not file the January 2019 Administrative Petition

challen ging the Board’s maximum release date calculation until approximately 16

months after the Board mailed the Recommitment Order, the filing was untimely

.
E ven if Flannery filed the First Administrative Appeal as he claims , the issues he

raised therein did n ot pertain to Flannery’s Original Sentence maximum release date

, but instead, “[1) t] hat he had ‘ no’ technical parole violations

, [ 2) ] that he was
gainfully employed full

- time, and [ 3) ] that the ‘alleged’ criminal infraction was based8

on pure conjuncture a nd speculation from a ‘ CONFIDENTIAL INFORMANT ’ [.]”
February 2019 Petition at 6, ¶ 14. 9

Thus, even if Flannery could demonstrate that he had timely filed the
First Administrative Appeal, he did not therein challenge the Board’s Recommitment

Order and thus , did not preserve the issue

. “ The law is well settled that issues not

raised before the Board either at the revocation hearing or in the petitioner ’ s

administrative appeal are waived and cannot be considered for the first time on
appeal. ” Chesson v. Pa. Bd. of Prob. & Parole , 47 A.3d 875, 878 (Pa. Cmwlth.

2012). Accordingly, the Board properly dismissed Flannery’s January 2019

Administrative Petition as untimely.

Based on the foregoing, this Court concludes that Counsel complied with

Turner’s technic al requirements and confirms

, based upon an independent record

review

, that Flannery ’s appeal lacks merit. For all of the above reasons, Counsel’s

A pplication is granted, and the Board’s order is affirmed.

___________________________ ANNE E. COVEY, Judge

9 Importantly, in the February 2019 Petition , Flannery did not allege that he challenged the Board’s calculation of his Original Sentence maximum release date or the Board’s failure to credit his time spent at liberty on parole i n the First Administrative Appeal.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Flannery, :

Petitioner :

:

v. :

: Commonwealth of Pennsylvania : and Pennsylvania Probation and Parole : Board, : No. 470 C.D. 2019

Respondents :

O R D E R

AND NOW, this 7 th day of February , 20 20

, Schuylkill County Public
Defender Kent D. Watkins, Esquire ’s Application to Withdraw as Counsel is

GRANTED , and the Pennsylvania Board of Probation and Parole’s March 6, 2019

order is AFFIRMED

.

__________ _________________ ANNE E. COVEY, Judge