IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Casey, :

Petitioner :

:

v. : No. 2346 C.D. 2014

: Submitted: September 18, 2015

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE COLINS FILED: October 15, 2015

Before this Court are the petition of Richard Casey for review of the 

December 2, 2014 determination of the Pennsylvania Board of Probation and 

Parole (Board), which denied his administrative appeal of a Board order 

recommitting him for six months of backtime and recalculating his maximum 

sentence date, and the application of Victor Rauch, Esq., Assistant Public Defender 

of Philadelphia County (Counsel), for leave to withdraw as attorney for Mr. Casey 

on the ground that the petition for review is frivolous. Because we conclude that 

the issues raised in Mr. Casey’s appeal are meritless, we grant Counsel’s

application for leave to withdraw and we affirm the Board’s determination. 

On November 3, 2010 Mr. Casey was released on parole with a 

maximum sentence date of June 21, 2015. (Record Item (R. Item) 2, Release on 

Parole.) At the time of his parole, Mr. Casey agreed to specific conditions 
2

governing his parole. (Id., Conditions Governing Parole.) One of the conditions 

that Mr. Casey acknowledged was that if he was convicted of a crime while at 

liberty on parole the Board, following a hearing, had authority to recommit Mr. 

Casey for the balance of his sentence with no credit for time spent at liberty on 

parole. (Id.) 

On September 15, 2013, Mr. Casey was arrested by the Eddystone

Police Department on charges of theft by deception, forgery, and resisting arrest. 

(R. Item 7, Police Criminal Complaint.) On September 16, 2013, bail was set for 

Mr. Casey and the Board lodged a detainer against Mr. Casey pending disposition 

of his new criminal charges. (R. Item 4, Detainer; R. Item 15, Criminal Docket.) 

Mr. Casey did not post bail on the new criminal charges. (R. Item 15, Criminal 

Docket.)

On March 17, 2014, Mr. Casey pled guilty to theft by deception and 

resisting arrest. (R. Item 15, Criminal Docket; R. Item 16, Certificate of 

Imposition of Judgment of Sentence.) Mr. Casey was sentenced to 1 to 23 months 

with 1 year of supervised probation, he received credit for 1 month of the time he 

spent incarcerated in county jail towards his sentence, and he was immediately 

paroled. (Id.) On May 15, 2014, Mr. Casey acknowledged receipt of notice of a 

revocation hearing scheduled for June 18, 2014 to address whether he had been 

convicted on new criminal charges while he was at liberty on parole and he waived 

his right to a full panel hearing. (R. Item 12, Panel Hearing Waiver, Notice of 

Charges and Hearing.) On June 18, 2014, Mr. Casey, represented by counsel, 

testified before a hearing examiner and admitted to his new criminal conviction. 

(Supplemental R. Item, Hearing Transcript at 5, 8.)
3

On July 28, 2014 the Board recommitted Mr. Casey as a convicted 

parole violator to serve six months backtime and recalculated his maximum 

sentence date as November 2, 2018. (R. Item 15, Board Action Recorded 7/22/14.) 

Mr. Casey filed a pro se appeal and, on December 2, 2014, the Board affirmed its 

July 28, 2014 order. (R. Item 16, Petition for Administrative Review, Board 

Determination.) On December 18, 2014, Mr. Casey filed a pro se petition for 

review with this Court and, on February 12, 2015, Counsel was appointed for Mr. 

Casey.1

On July 6, 2015, Counsel submitted a petition to withdraw 

accompanied by a brief in accordance with Anders v. California, 386 U.S. 738 

(1967). Where a constitutional right to counsel exists, appointed counsel must file 

an Anders brief in support of a petition to withdraw. A constitutional right to 

counsel arises in appeals from determinations revoking parole and exists where a 

parolee has a colorable claim “(i) that he has not committed the alleged violation of 

the conditions upon which he is at liberty; or (ii) that, even if the violation is a 

matter of public record or is uncontested, there are substantial reasons which 

justified or mitigated the violation and make revocation inappropriate, and that the 

reasons are complex or otherwise difficult to develop or present.” Hughes v. 

Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009) 

(en banc). Where a parolee has a statutory right to counsel, rather than a 

constitutional right, a no-merit letter is sufficient and counsel need not submit an 

 

1

The Luzerne County Office of the Public Defender was originally appointed to represent Mr. 

Casey. On January 25, 2015, Mr. Casey was paroled within Philadelphia County and, upon 

application, the Luzerne County Office of the Public Defender withdrew and Counsel was 

appointed to represent Mr. Casey.
4

Anders brief.2 Commonwealth v. Santiago, 978 A.2d 349, 351 n.2 (Pa. 2009); 

Hughes, 977 A.2d at 24-25. A no-merit letter must set forth: (i) the nature and 

extent of counsel’s review of the case; (ii) each issue that the inmate wishes to 

raise on appeal; and (iii) counsel’s explanation of why each of those issues is 

meritless. Commonwealth v. Turner, 544 A.2d 927, 928-929 (Pa. 1988); Reavis v. 

Pennsylvania Board of Probation and Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 

2006). In the instant matter, Counsel filed an Anders brief when a no-merit letter 

would have been sufficient. In such instances, this Court will accept an Anders

brief in place of a no-merit letter if the Anders brief has complied with the 

technical requirements of a no-merit letter. Seilhamer v. Pennsylvania Board of 

Probation and Parole, 996 A.2d 40, 43 (Pa. Cmwlth. 2010). Additionally, this 

Court will evaluate the issues presented to determine whether they are meritless 

rather than to determine if the appeal lacks any basis in law or fact as is required by 

Anders. Hughes, 977 A.2d at 26 n.4.

Upon review of Counsel’s petition and accompanying brief, it is clear 

that Counsel has satisfied the procedural requirements necessary to withdraw as 

appointed counsel: (i) Counsel has notified Mr. Casey of his request to withdraw; 

(ii) Counsel has furnished Mr. Casey with a copy of the petition to withdraw and 

the brief filed in support of withdrawal; and (iii) Counsel has advised Mr. Casey of 

his right to retain new counsel, to proceed pro se and to raise any additional points 

that Mr. Casey may deem worthy of consideration. Miskovitch v. Pennsylvania 

Board of Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013). Furthermore, 

Counsel has complied with the substantive requirements of a no-merit letter. 

Seilhamer, 996 A.2d at 43-44; Hughes, 977 A.2d at 26-27; Reavis, 909 A.2d at 33.

 

2

See Section 6(a) of the Act commonly known as the Public Defender Act, Act of December 2, 

1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a).
5

Counsel has included a statement advising this Court that after a thorough review 

of the record, Counsel has concluded that the issues preserved for appeal are 

frivolous. Counsel has described the factual and procedural history of the instant 

matter, with citations to the record. Counsel has listed each issue that Mr. Casey 

sought to raise in his pro se petition for review and has offered an explanation as to 

why Counsel believes that each of these issues is without merit. Therefore, 

because we conclude that Counsel has satisfied the procedural and substantive 

requirements necessary to withdraw as counsel, we will conduct an independent 

review of the proceedings before the Board to determine if Mr. Casey’s appeal is 

meritless.3

Initially, we reiterate that failure to raise an issue before the Board 

results in waiver of that issue and review by this Court is precluded. Reavis, 909 

A.2d at 34. In the instant matter, Mr. Casey appears to have waived his first two 

issues. However, even if Mr. Casey had preserved each of the issues presented in 

his petition for review, our independent analysis leads us to determine that the 

issues he has raised are meritless. 

The first issue raised by Mr. Casey in his petition for review is that the 

Board acted beyond its authority by recalculating his maximum sentence date as 

November 2, 2018. Section 6138 of the Prisons and Parole Code (Code), 61 Pa. 

C.S. § 6138, provides the Board with authority to deny a convicted parole violator 

credit for time spent at liberty on parole towards the convicted parole violator’s 

 

3 Our scope of review is limited to determining whether constitutional rights were violated, 

whether an error of law was committed, and whether necessary findings were supported by 

substantial evidence. 2 Pa.C.S. § 704; Adams v. Pennsylvania Board of Probation and Parole, 

885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).
6

maximum term expiration date.4 Our Supreme Court has consistently upheld the 

constitutionality of the Board’s statutory authority to deny a convicted parole 

violator credit for time spent at liberty on parole. See Gaito v. Pennsylvania Board 

of Probation and Parole, 412 A.2d 568, 570 (Pa. 1980) (“when the Board refuses 

to credit a convicted parole violator with time spent free on parole there is neither a 

usurpation of the judicial function of sentencing nor a denial of the procedural 

safeguards to which persons are entitled.”).

Denying credit for time spent at liberty on parole is not an extension 

of a judicially imposed sentence. Had the Board attempted to add time in addition 

to that spent at liberty on parole as a punishment, then the Board would have acted 

illegally by usurping powers reserved to the judicial branch. Instead, the Board 

 

4

Section 6138(a) of the Code provides, inter alia:

(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).

61 Pa. C.S. § 6138(a)(1)-(2.1). 
7

denied Mr. Casey credit for his time spent at liberty on parole because he did not 

adhere to the conditions of his parole and was convicted on new criminal charges. 

Put simply, Mr. Casey failed to serve that portion of his sentence spent outside the 

confines of a state correctional facility and the Board determined that he must do 

so.

Moreover, the Board’s determination demonstrates that it exercised its 

discretion without abuse and concluded that Mr. Casey should be recommitted. 

The Board’s hearing report reflects that it reviewed the evidence, which was 

substantial and included Mr. Casey’s admission, and that the Board determined 

that Mr. Casey should be evaluated for drugs and alcohol, participate in a cognitive 

behavioral change program, and then be reevaluated for parole. (R. Item 14, 

Hearing Report.) There is no evidence that the Board acted in an arbitrary or 

capricious manner, acted fraudulently, or committed an abuse of power. Harmer v. 

Pennsylvania Board of Probation and Parole, 83 A.3d 293, 298 (Pa. Cmwlth. 

2014); Baldelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92, 96-97 

(Pa. Cmwlth. 2013). Therefore, this Court has no authority to disturb the Board’s 

order, as it acted clearly within the discretion afforded it under the Code, and Mr. 

Casey’s argument to the contrary is without merit. 

Next, Mr. Casey claims that he did not receive adequate notice that 

one possible outcome of his recommitment hearing was the loss of credit for time 

spent at liberty on parole and that this lack of notice violated his right to due 

process. The record reflects otherwise. As noted above, Mr. Casey agreed to a 

number of conditions governing his parole, one of which stated that if he was 

convicted of a crime while at liberty on parole, the Board had authority to 

recommit him to serve the balance of his sentence without credit for any of his 
8

time spent at liberty on parole. (R. Item 2, Conditions Governing Parole.) The 

Board was not required to advise Mr. Casey again as a part of his recommitment 

hearing that, as one of many possible outcomes, he was subject to loss of credit for 

time spent at liberty on parole. Due process requires that Mr. Casey be given 

notice of the claimed parole violation, disclosure of the evidence against him, an 

opportunity to be heard before a neutral hearing body, and a written decision. 

Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Commonwealth ex rel. Rambeau v. 

Rundle, 314 A.2d 842, 846-847 (Pa. 1973); Mignone v. Pennsylvania Board of 

Probation and Parole, 545 A.2d 483, 484 (Pa. Cmwlth. 1988). Mr. Casey 

received notice that he was charged by the Board with having received a new 

criminal conviction. (R. Item 12, Notice of Charges and Hearing.) A hearing was 

held where Mr. Casey was represented by counsel, testified before the hearing 

examiner, and was given the opportunity to present evidence and cross-examine 

his parole officer, the sole witness presented by the Board. (Supplemental R. Item, 

Hearing Transcript.) Following the hearing, the Board issued a written 

determination. (R. Item 15, Board Action Recorded 7/22/14.) It is clear from the 

record that Mr. Casey received the full process he was due and that his argument to 

the contrary is without merit.

Finally, Mr. Casey contends that the Board erred in failing to credit 

his sentence with time spent incarcerated in county jail due to the Board’s detainer. 

Mr. Casey was granted but did not post bail. Mr. Casey was sentenced on March 

17, 2014 to 1 to 23 months with 1 year of supervised probation, he was given 

credit against his county sentence for the period from September 16, 2013 until 

October 14, 2013, and he was immediately paroled. Mr. Casey contends that the 

period from October 14, 2013, the date of retroactive parole given to him at 
9

sentencing, to March 17, 2014, the date of his sentencing, should be credited 

against his state sentence. In Banks v. Pennsylvania Board of Probation and 

Parole, 928 A.2d 384 (Pa. Cmwlth. 2007), this Court held that a convicted parole 

violator “did not become available to begin serving backtime on his original state 

sentence on the date of retroactive parole because a retroactive parole has no legal 

effect on availability to serve an existing state sentence. Instead, [a convicted 

parole violator] continued to serve only his new county sentence until that sentence 

was actually pronounced.” Id. at 387. An exception to this rule exists where a 

convicted parole violator “is confined on both the Board’s warrant and the new 

criminal charges and it is not possible to award all of the credit on the new 

sentence because the period of pre-sentence incarceration exceeds the maximum 

term of the new sentence.” Armbruster v. Pennsylvania Board of Probation and 

Parole, 919 A.2d 348, 355 (Pa. Cmwlth. 2007). Mr. Casey does not fall within 

this exception; instead, Mr. Casey is in the same position as the convicted parole 

violator in Banks. Mr. Casey’s argument that the time period from October 14, 

2013 to March 17, 2014 should be applied to his state rather than his county 

sentence is therefore without merit. 

Accordingly, we grant Counsel’s petition to withdraw and affirm the 

Board’s order.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Casey, :

Petitioner :

:

v. :

: No. 2346 C.D. 2014

Pennsylvania Board of Probation :

and Parole, :

Respondent :

ORDER

AND NOW, this 15th day of October, 2015, the application of Victor 

Rauch, Esq., Assistant Public Defender of Philadelphia County, for leave to 

withdraw as attorney for Richard Casey is GRANTED and the order of the 

Pennsylvania Board of Probation and Parole in the above-captioned matter is 

AFFIRMED. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge