IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Montae Gerald , :

Petitioner :

: v. : : Pennsylvania Board of : Probation and Parole, : No. 765 C

. D. 201 8

Respondent : Submitted: October 25 , 201 9

BEFORE: HONORABLE MARY HANNAH LEAVITT , President Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: April 20, 2020

Montae Gerald (Gerald) petitions for review from the May 11, 2018 order of the Pennsylvania Board of Probation and Parole (Board) , which denied Gerald’s requ est challenging the recalculation of his parole violation maximum sentence date. Gerald is represented by James L. Best, Esquire (Counsel) , who
asserts that th e appeal is withou t merit and seeks permission for leave to withdraw

as counsel. W e vacate the Board’s decision, remand the matter to the Board for the
issuance of a new decision, and dismiss as moot Counsel’s motion for leave to
withdraw as counsel.2 O n March 13, 2014 , the Board released Gerald on parole from a state
correctional in stitution where he was serving “[ o ] verlapping [ c ] oncurrent ” 5

- year to 10

- year sentence s resulting from robbery and burglary convictions

. C ertified Record (C.R.) at 1

- 2 & 12. At the time of his release, Gerald’s maximum sentence
date was October 15, 2018. Id . at 2. While on parole, on December 19, 2015, the Philadelphia Police Department arrested Gerald and, on the same day, the Board
detained him

. Id

. at 12

- 15

. The next day, on December 20, 2015, the police charged Gerald with multiple crimes and the Court of Common Pleas of Philadelphia County (trial court) set bail at $900,000, which Gerald did not post. Id . at 16

- 17 & 52

- 61.
The Board issued Gerald a notic e of charges and scheduled a detention hearing , but Gerald waived his right to counsel and t he hearing

. Id . at 20

- 22. T he Board voted to detain him pending the disposition of the criminal charges. Id . at 18

- 19

. On May 12, 2017, Gerald pleaded guilty to four felonies , including robbery, burglary, conspiracy to commit robbery , and possession of a firearm when prohibited. Id . at 39

- 40 & 55

- 56. The same day, the trial court se ntenced Gerald to serve time in a

sta te correc tional institution as follows : 7 years, 6 months to 20 years for his robbery, burglary, and conspiracy convic tions ; and 5 years to 10 years for his possession of a firearm conviction. Id . at 39

- 40.

Based on Gerald’s new criminal convictions, t he Board issued a notice of charges and scheduled a revocation hearing . C.R. at 41. Gerald waived his right

to counsel and a r evocation hearing and admitted to the new criminal convictions.
Id . at 37. On August 24, 2017, the Board voted to recommit Gerald as a convicted parole violator, with no credit for time spent at liberty on parole. Id . at 31 & 36. By decision mailed October 3, 2017, the Board notified Gerald of its decision to
recommit him as a convicted parole violator, for his unexpired term of 4 years, 73

month s, and 1 day ( i.e. , 1,676 days). Id . at 63

- 65 . As a result of Gerald’s recommitment, the Board recalculated his maximum sentence date to March 27,
2022. Id . at 65

.

In respo nse to the Board’s October 3, 2017 decision, Gerald filed an administrative remedies form challenging the Board’s recalculation of his maximu m sentence date. C.R. at 71. On his administrative remedies form, 1 Gerald checked
the sentence credit challenge box and order of se rvice of sentence s box and provided the following explanation: “My judge order [sic] for my new sentence to be running concurrent with my backtime and that [’] s not what my green sheet says [sic] also its on my sentence transcript.” Id

. The Board , in its May 11, 2018 decision, responded
to Gerald ’s request for relief as follows: “Upon review of your case, it was
determined there is no indication the Board failed to appropriatel y recalculate your maximum date and your request for relief i s denied.” Id . at 73

.

Gerald , pro se , filed a timely petition for review with this Court challenging the Board’s decision. By order dated June 12, 2018, this Court appointed Counsel to represent Gerald and granted Gerald’s application to proceed
in f orma pauperis . Cmwlth. Ct. Order dated 6/12/18. 2 O n January 23, 2019, Counsel

1 The Admini strative Remedies Form provided : Petition for Administrative Review (appeal of a revocation decision regarding sentence calculations): Check the Reason(s) for Relief and Explain : 1.  Sentence Credit Challeng e 2. ☐ Reparole Eligibility Date 3.  Order of Service of Sentences 4. ☐ Other Explanation: ______________________________________ C.R. at 71.

2 This Court gave Counsel an opportunity to file an amended petition for review but Counsel did not do so. Cmwlth. Ct. Order dated 6/12/18.4

filed a motion for leave to withdraw as counsel. In his motion for leave to withdraw as counsel, Counsel states that “there is no basis in law or fact for the appeal” and

repr esents that he sent a copy of his motion and no

- merit letter 3 to Gerald . Motion
for L eave to Withdraw as Counsel ¶¶ 3

- 5. We now consider Counsel’s request to withdraw

. When court

- appointed counsel concludes that a petitioner’s appeal is meritless, c ounsel may be permitted to withdraw if counsel satisfies th e following requirements: (i) he must notify the petitioner of the request to withdraw; (ii) he must furnish the petitioner with a copy o f a no

- merit letter; and (iii) he must advise the petitione r of his right to retain new counsel and to raise any new points he might deem worthy of consideration. Miskovitch v. Pa. Bd. of Prob. & Parole , 77 A.3d 66, 69 (Pa. Cmwlth. 2013); Hughes v. Pa. Bd. of Prob. & Parole , 977 A.2d 19, 22 (Pa. Cmwlth. 2009). T he no

- merit letter must detail: (i) the nature and extent of counsel’s review; (ii) each issue the petitioner wishes to have raised ; and (iii) counsel’s explanation as to why those issues are meritless. Commonwealth v.
Turner , 544 A.2d 927 (Pa. 1988) ; Zerby v. Shanon , 964 A.2d 956, 961 (Pa. Cmwlth. 2009). A no

- merit letter must include “substantial reasons for concluding that” a petitioner’s arguments are without merit. Zerby , 964 A.2d at 962. Once appointed counsel fully complies with these requirem ents to withdraw, the Court independently reviews the merits of the petitioner’s claims. Id. at 960.

3 Counsel seeking to withdraw may file an “ Anders Brief” or a no

- merit letter. See Anders v. California , 386 U.S. 738 (1967 ). If petitioner has a constitutional right to counsel, then counsel should file an Anders Brief. Hughes v. Pa. Bd. of Prob. & Parole , 977 A.2d 19, 25 (Pa. Cmwlth. 2009). In cases where there is no constitutional right to counsel, i.e. , an appeal from the Board’s decision to recalculate a parolee’s maximum sentence date, this Court only requires a no

- merit letter explaining why the claim is m eritless to support the motion to withdraw. Id. at 25

- 26. The standard applied in this case is whether Gerald’s claims are without merit. Id. at 26 n.4.5 Here, on January 23, 2019 , Counsel served Gerald a copy of the motion
for leave to withdraw as counsel and the no

- merit letter

. See Certificate of Ser vice
attached to the Motion for Leave to Withdraw as Counsel . In his January 23, 2019
letter enclosed with the motion for leave to withdraw as counsel, Coun sel advised
Gerald that his appeal is “without merit” and advised him that he is free to file his

o wn brief with the Court or, alternatively, to hire private counsel. See Motion for
Leav e to Withdraw as Counsel ¶ 4 , Exhibit A, No

- Merit Letter to Gerald dated 1/23/19 (No

- Merit Letter)

. On January 30, 2019 , Counsel filed a Certificate of
Service with this Court ce rtifying that he served Gerald with a copy of this Court’s
order dated January 24, 2019 by First

- Class M ail. See Certificate of Service dated
1/30/19 . This Court’s January 24, 2019 order gave Gerald 30 days to obtain
substitute counsel at hi s own expense or to file a brief on his own behalf in light of Counsel’s request to withdraw. See Cmwlth. Ct. Order dated 1/24/19 (1)

- (2).

I n his no

- merit letter, Counsel represents that he reviewed the certified
record and provided the factual and p ro cedural history of the case. No

- Merit Letter
at 1

- 3 . Counsel identified the following issue for our consideration : “Did the Board violate . . . Gerald’s rights by forfeiting his street time and extending his maximum beyond the judicially set term?” Id

. at 3. Counsel provided citations to law and , a legal analysi s, and concluded that the issue he asserts that Gerald raised is without
merit. Id

. at 2

- 5. Because Counsel complied with the requirements to withdraw, we

now independently review Gerald’s claims.

Before this Court , 4 Gerald argue s that the Board “ does not have [ the ] power to alter a judicially imposed sentence. ” Petition for Review ¶ 1. Gerald

4 Gerald’s petition for review contains eight paragraphs, most of which appears to be facts or Gerald’s statement of law. Petition for Review ¶¶ 3

- 7.6

“asks/requests that all time incarcerated be credited to original sentence as well as parole time at liberty in good standing towards the maximum of his State sentence issued by the judicial system.” Id

. ¶ 8. We cannot, however, ascertain whether Gerald’s claims are properly before this Court 5 or whether the Board erred by denying Gerald’s request for relief because the Board did not provid e reasons for its adjudication. Section 507 of the Administrative Agency Law provides that “[a]ll adjudications of a Commonwealth agency shall be in writing , shall contain f indings and the reasons for the adjudication , and shall be served upon all parties or their counsel personally , or by mail.” 2 Pa. C.S. § 507 (emphasis added). An a gency is required to explain the reasons for its decision. Id

. The Boar d, in its May 11, 2018
decision , stated, “[u]pon review of yo ur case, it was determined there is no indication the Board failed to appropriately recalculate your maximum date and your request for relief is denied.” C.R. at 73. Because t he Board failed to explain t he reasons for
its decision that it properly calculated Gerald’s maximum sentence date
, this Court
is unable to engage in effective appellate review

. 6

5 We note that the Board’s regulations provide that petit ions for administrative review may be denied if the petition fails to present with “accuracy, brevity, clearness and specificity whatever is essential to a ready and adequate understanding of the factual and legal points requiring consideration.” 37 Pa. C ode § 73.1(b)(2). Here, in his petition for administrative review filed with the Board, Gerald checked the sentence credit challenge box and provided a written explanation. C.R. at 71. We are unable to ascertain whether the issues Gerald raised or attem pted to raise in his petition for review to this Court were considered by the Board or are properly preserved before this Court.

6 Our analysis is consistent with memorandum opinions issued by this Court where the Board used the same or simila r concluso ry language to deny parolees re quests for administrative relief challenging their recalculated maximum sentence date. See , e.g. , Lovett v. Pa. Bd. of Prob. & Parole , (Pa. Cmwlth., No. 1153 C.D. 2018, filed August 21, 2019); Barksdale v. Pa. Bd. of Prob. & Parole , (Pa. Cmwlth., No. 1402 C.D. 2018, filed August 21, 2019); & Brown v. Pa. Bd. of Prob. & Parole, (Pa. Cmwlth., No. 710 C.D. 2018, filed January 25, 2019). Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69. 414(a), unreported panel decisions issued by this Court after Janua ry 15, 2008 may be cited for their persuasive value.7 Accordingly , w e vacate t he Board ’s decision and remand the matter to the Board for the issuance of a decision that sets forth the basis for concluding tha t the Board properly calculated Gerald’s max imum sentence date, and we dismiss as moot Counsel’s motion f or leave to withdraw as counsel.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeI N THE COMMONWEALTH COURT OF PENNSYLVANIA

Montae Gerald, :

Petitioner :

: v. : : Pennsylvania Board of : Probation and Parole, : No. 765 C.D. 2018

Respondent :

O R D E R

AND NOW, this 20th day of April , 20 20 , the May 11 , 2018 order of the Pennsylvani a Board of Probation and Parole is VACATED , and the ma tter is
REMANDED to the Board for the issuance of a new decision. The motion for leave to withdraw as counsel filed by James L. Best, Esquire , is DISMISSED as moot.

Jurisdiction relinquished.

__________________________________ CHRISTINE FIZZANO CANNON, Judge