IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Julian Patton, : Petitioner :

: v. : No. 175 C.D. 2020
: Submitted: September 11, 2020 Pennsylvania Board of : Probation and Parole, : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CROMPTON FILED: November 20 , 2020

Julian Patton , an inmate confined at the State Correctional I nstitution (SCI) at Mercer, petitions for review of an adjudication of the Pennsylvania Board
of Probation and Parole (Board) , 1 recommitting him to serve 24 months ’ backtime as a convicted parole violator (CPV) and recalculati ng his maximum sentence date to April 21, 2022. His counsel, Robert H. H artley, J r., Esquire (C ounsel) , 2 has filed an application to withdraw appearance (application to withdraw) , along with a no

1 S ubsequent to the filing of the petition for r eview, the Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and 6111(a) of the Priso ns and Parole Code, as amended , 61 Pa.C.S. §§ 6101 , 6111(a)

.

2 Counsel is an assistant public defender in Mercer County.2

merit letter, 3 because the petition for review was untimely filed

. For the following

reasons , we grant Counsel ’s application to withdraw and dismiss the petition for
review

. In 2013, Patton plead ed guilty to the charge of burglary in the Court of Common Pleas of Allegheny County . He was sentenced to serve two years, three
months to six years in an SCI . At that time , his maximum sentence date was September 17, 2019.

Patton was paroled on April 24, 2016. He remained on parole until February 2, 2017, when he was arrested by the Pittsburgh Police Department for receipt of stolen property, possession of a firearm w ithout a license, and possession
of a firearm by a convicted felon. The Board lodged a warrant to commit and detain
Patton on February 3, 2017. Certified Record (C.R

. ) at 11

. At that time, Patton waived his rig hts to counsel, a detention hearing, and a panel hearing. C.R. at 17

- 18. On March 21, 2017, the Board ordered Patton to be detained pending disposition of the new criminal charges. C.R. at 23.

On April 11, 2017, Patton was indicted on federal charges for possession of a firearm and ammunition by a convicted fe lon. C.R. at 31. The state charges were dismissed at the magisterial level , and , on May 25, 2017, Patton was
transferre d from the Allegheny County Jail to a federal d etention facility by the
United States Marshal s Service. Id

.

On August 27 , 2018, Patton ple a d ed guilty to the federal firearm charge
in the United States District Court for the Western District of Pennsylvania and was

3 The “no merit” standard for withdrawing is applied in situations where, as here, the right to counsel is statutorily base d. Zerby v. Shanon , 964 A. 2d 956, 960 (Pa. Cmwlth. 2009). The “wholly frivolous” standard, a slightly higher standard, is applied where the right to counsel is constitutional. Id

.3

sentenced to 30 months ’ confinement followed by 3 years of supervised release

. 4 He remained in federal custody until November 27, 2018, at which point he was
transferred to SCI

- Greene. C.R. at 51.

On Septem ber 13, 2018, prior to his return to state custody, t he Board
received ve rification of the federal conviction . C.R. at 42. On September 24 , 2018,
Patton signed a Waiver of Panel Hearing and a Waiver of Revocation Hearing and
Counsel/Admission Form , waivi ng his right to a panel hearing and a revocation hearing and his right to counsel and admitting that he violated his parole by possessing a firearm and ammunition as a convicted felon

. C.R. at 35

- 37. The Board accepted Patton’s waivers and indicated in the Hearing Report that Patton would n ot receive credit for time he spent at liberty on parole by checking “No” next to “Credit time spent at liberty on parole.” C.R. at 43.

By decision mailed November 6, 2018, the Board recommitted Patton to an SCI as a CPV to serve 24 months’ backtime. C.R. at 48

- 49. Patton owed 1,241 days on his unexpired original sentence. C.R. at 52. The Board mailed a second decision on December 5, 2018, referring to its prior decision of November 6, 2018, explaining it did not grant Patton credit for time spent a t liberty on parole because his “conviction involved possession of a weapon,” and recalculating Patton’s maximum date as April 21, 2022. C.R. at 54

- 55.

Patton, pro se , filed for administrative review of the Board’s December
5 , 2018 decision . He claimed the presumptive range for a firearm violation was 12

to 18 months. He also clai med he “received a n [sic] [ n ] on

- monetary bond and [did not] understand how [his] last 22 months in jail [wa s ] not credited to [his] parole

4 Patton was convicted of possession of a firearm and ammunition by a person “ who has been convicted in any court of, a crime punis hable by imprisonment for a term exceeding one y ear[.]” 18 U.S.C. § 922(g)(1).4

violation.” C.R. at 56. By decisio n mailed October 11, 2019 , the Acting Board
S ecretary denied relief. C.R. at 58. T he Board explained that the presumptive range for the offense of possession of a firearm and ammunition by a convicted felon is 18
to 24 months. 37 Pa. Code § 75.2. 5 Therefore, because the backtime imposed was
with i n the presumptive range under the Board’s Regulation, it cannot be challenged now on appeal

. The Board did not address Patton’s claim that his federal time should
be credited toward his state sentence

.

On February 14 , 2020, 6 Patton filed a pro se petition for review with
this Court. His petition did not question the presumptive range for his firearm charge

or that his 22 months in federal custody should be credited toward hi s state sentence.
I nstead, Patton claimed to be “entitled to a total of 112 days and 88 days presentence credit for two period s o f incarceration solely on the [Board’s ] warrant s on 02/02/2 017 until 0 5/26/2017 when [he] was arraigned by federal autho rities and
0 8/31/2018 until 11/27 /2018 when [he] was returned to [state custody].” Petition for Review ¶ 3.

On March 10, 2020, this Court appointed the Public Defender of Mercer County to represent Patton and Counsel thereafter entered his appearance. Counsel

5 Patton was convicted of violating 18 U.S.C. § 922(g)(1) , for possessing a firearm and ammunition as a convicted felon . C.R. at 24. Section 6105(c)(9) of the Pennsylvania Un iform Firearms Act of 1995 (Firearms Act) , 18 Pa. C.S. § 6105(c)(9), lists a conviction under 18 U .S.C. § 922(g)(1) as a violation of the Firearms Act. Thus, Section 75.2 of the Board’s Regulations provides that the presumptive range for “[v]iolation of a ny Provision of the [ Firearms Act ]” is 18 to 24 months. See 37 Pa. Code § 75.2.

6 Patton’s petition for review was received by this Court on F ebruary 19, 2020, but deemed filed on F ebruary 14, 2020 . P ursuant to the “prisoner mailbox rule
, ” pro se legal filings by prisoners are deemed filed on the date “given to prison officials or put in the prison mailbox.” Kittrell v. Watson , 88 A.3d 1091, 1096 (Pa. Cmwlth. 2014) ; see also Pa.R.A.P. 121(a)

.5

subsequently filed the appl ication to withdraw from representation of Patton , along
with his no

- merit l etter, claiming that the petition for review is time barred.

When evaluating an application to withdraw f rom representation of a parolee who challeng es a revocation decision, we must determine whether counsel
has satisfied the following requirements of : (1) notifying the inmate of the application to withdraw; (2) providing the inmate with a copy of a no

- merit letter in
accordan ce with Commonwealth v. Turner , 54 4 A.2d 927 (Pa. 1988) ; and (3) advising the inmate of his right to retain new counsel or file a brief on his own behalf.
Miskovitch v. P a. Bd. of Prob

. & Parole , 77 A.3d 66, 69 (Pa. Cmwlth. 2013). The

no

- merit letter must detail the extent of counsel’s review and explain why the
inmate’s claim is meritless. Zerby v. Shanon , 964 A .2d 956, 961 (Pa. Cmwlth. 2009). If counsel has fully complied with the technical requirements for withdraw al , the Court will independently review t he merits of the inmate ’ s claim s

.

Here, the record reflect s that Counsel has notified Patton of the applica tion to withdraw; has provided him with a copy of the no

- merit letter that
details Counsel ’ s review of the issues and the reasons why Counsel concluded those
issues are meritless ; and has advised P atton of his right to retain new counsel or raise any new points he might deem worthy of consideration. 7 Accordingly, we conclude
that Counsel has satisfied the technical requirements for withdrawal

.

Turning to our review of the merits, Counsel asserts in his no

- merit
letter that the issues raise d by Patton are frivolous because the petition for review was untimely filed. Couns el notes that the period for filing a petition for review to this Court from an order of the Board is 30 days. Pa.R.A.P. 1512(a)(1) ( “ A petition for review of a quasijudicial order

. . . shall be filed with the prothonotary of the

7 Patton has not retained new counsel or filed a bri ef on his own behalf

.6

appellate court w ithin 30 days after the entry of the order. ” ). The failure to file a timely appeal deprives this Court of jurisdiction to consider the merits of the case.
Hillanbrand v. Pa. Bd. of Prob. & Parole , 508 A.2d 375, 378 (Pa. Cmwlth. 1986).
T h is Court has recognized that the untimeliness of a petition for review filed by a

pro se inmate that lacks an y explanation for the delay is a valid basis for appointed
counsel to seek withdrawal o f his appearance. Murph v. Pa. Bd. of Prob. & Parole , 641 A.2d 1275, 1276

- 77 (Pa. Cmwlth. 1994) (concluding this Court lacked jurisdiction to consider untimely petition f or review filed by pro se inmate )

. Counsel states that pursuant to Robinson v. Pennsylvania Board of
Probation and Parole , 582 A.2d 857 (Pa. 1990) , he must raise and address the
untimeliness of a pro se petition for review or risk sanctions. In Robinson , a pro se inmate filed a petition for review t o this Court, approximately nine months after the appeal period expired. This Court appoin ted a public defender to represent the
inmate , who filed a brief addressing the merits of the petition for rev iew, but did not
mention the untimely filing of the appeal . The Board petitioned for dismissal, arguing that the petition for rev iew was untimely . We agreed the petition was untimely, and therefore, frivolous, and ordered the public defender to pay costs and attorney’s fees for filing a frivolous appeal.

Before the Supreme Court, the public defender argued that this Court appointed him after the filing of the untimely appeal. As such, he assumed he was expected to address the merits of the case. T he Supreme Court disagreed, stating that “[t]o employ a strat [ a ] gem of focusing on the merits of a claim and ignoring a clearly apparent jurisdiction al defect is a frivolous strategy which rendered the appeal frivolous.” Id . at 860. Thus , the Supreme Cou rt affirmed this Court’s imposition of sanctions.7 Here, administrative relief was denied on October 11, 2019 , and Patton filed his petition for review on F ebruary 14 , 2020. Patton gave no reason for the nearly 4

- month delay in filing his petition for review, which is well beyond the 30

- day appeal period. Pa.R.A.P. 1512(a)(1). As such, Counsel was obligated , pursuant

to Robinson , to address the issue. Moreover , upon receipt of Counsel’s no

- merit letter, explain ing Patton’s claim was untimely, Pa tton had an opportunity to address the delay in filing, but declined to respond. Accordingly, this Court lacks jurisdiction to c onsider Patton’s untimely petition for re view

. Hillanbrand , 508
A.2d at 378.
For the above reasons, we grant Counsel leave to withdraw and dismiss the petition for review as untimely

.

______________________________ J. ANDREW CROMPTON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Julian Patton, : Petitioner :

: v. : No. 175 C.D. 2020
: Pennsylvania Board of : Probation and Parole, : Respondent :

O R D E R

AND NOW , this 20 th day of November 2020, the Application to
Withdraw Appearance filed by Robert H. Hartley, Jr., Esquire is GRANTED, and Julian Patton’s petition for review of the Pennsylvania Board of Probation and Parole’s Order of October 11, 2019, is DISMISSED as untimely.

______________________________ J. ANDREW CROMPTON, Judge