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 : Submitted: 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) petitions 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) recommitting 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 an Application to 

Withdraw as Counsel (Application) and submitted a no-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 sentence for the charge of person not to possess, use firearms. (Original 

Sentence). See Certified Record (C.R.) at 1, 7. Flannery’s Original Sentence 
2

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 

date, 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 August 24, 2016, the Board detained 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, 2016, Flannery filed a Petition 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 continue to detain 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 sentenced to time served (365 

days) to 23 months. 

On August 15, 2017, the Board issued the Recommitment Order2

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

 

1 The Commonwealth withdrew the second count of possession of a controlled substance by 

a person not registered. 

2 The Recommitment Order reflects that Flannery’s Original Sentence maximum release 

date was February 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 Recommitment Order advised Flannery that 

the Board, in its discretion, did not award him credit for time he spent at liberty on 

parole because he was “STILL USING DRUGS [AND] NOT ADJUSTING WELL TO 

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

IF YOU WISH 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 

envelope 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. Specifically, Flannery averred, 

inter alia:

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

[Flannery] [filed] a Petition with the Board [] for, 

Administrative Appeal [(First Administrative Appeal)], . . .

and within that [First] Administrative Appeal Flannery 

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 dated 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 which 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, explaining:

[The January 2019 Administrative Petition] was received on 

January 17, 2019, in an envelope that was postmarked on

January 15, 2019. The Board decision that established your 

parole violation maximum date was mailed to you on 

August 25, 2017. [Section 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). Accordingly, the 

petition for administrative review is DISMISSED as 

untimely.

C.R. at 98. By March 11, 2019 order, this Court dismissed the February 2019 

Petition on the basis that “[the Board] issued a decision mailed March 6, 2019 

disposing of [Flannery’s] request for administrative review, [Flannery] may file a 

 

5

Importantly, Flannery did not aver that, in the First Administrative Appeal, he challenged 

the Board’s calculation of his maximum release date or the Board’s failure to credit his time spent at 

liberty on parole. In fact, the issues Flannery alleges 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, it 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 review with this Court 

(April 2019 Petition).

6

 On July 26, 2019, Counsel filed the Application and a nomerit 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 

‘the 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 meritless.’ ’ Zerby v. 

Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (quoting 

Commonwealth v. Turner, . . . 544 A.2d 927, 928 ([Pa.] 

1988)). ‘[C]ounsel must fully comply with the procedures 

outlined in Turner to ensure that each of the petitioner’s 

claims has been considered and that counsel has [ ] 

substantive reason[s] for concluding 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 captioned 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

This 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 Application, and notified Flannery that he may either obtain substitute 

counsel or file a brief on his own behalf.7 Counsel represented therein that the 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 Flannery’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 

First Administrative Appeal with the Board, but the Board never issued a decision 

thereon. Although Flannery does not identify the date he allegedly filed the First 

Administrative Appeal with the Board, he asserts that the First Administrative Appeal 

“sat unanswered for [near]ly (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 The certified record contains an administrative remedies form postmarked October 3, 

2016, wherein Flannery challenges the July 25, 2016 Board Decision detaining Flannery pending 

disposition of the criminal charges. The certified record also includes the December 2016 

Administrative Petition, wherein Flannery appeals from the July 25, 2016 Board Decision. It is 

unclear if these are the documents to which Flannery references as the First Administrative Appeal. 

Notwithstanding, these filings occurred prior to the Board’s August 15, 2017 Recommitment Order 

and do not constitute administrative 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 pertinent 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 

administrative 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 Board has mailed its 

response to the petition for administrative review. This 

subsection supersedes [Section 35.226 of the General Rules 

of Administrative Practice and Procedure,] 1 Pa. Code § 

35.226 [relating to final agency orders]. 

. . . .

(3) Second or subsequent 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

challenging the Board’s maximum release date calculation until approximately 16 

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

Even if Flannery filed the First Administrative Appeal as he claims, the issues he 

raised therein did not 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 based 
8

on pure conjuncture and 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 technical requirements and confirms, based upon an independent record 

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

Application 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 in 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, 2020, 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