IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul DeSabetino, :

:

Petitioner :

:

v. : No. 323 C.D. 2017

: Submitted: November 22, 2017

Pennsylvania Board :

of Probation and Parole, :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE J. WESLEY OLER, Jr., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: April 5, 2018

Paul DeSabetino petitions for review of the February 16, 2017 order of 

the Pennsylvania Board of Probation and Parole (Board) denying his request for 

administrative relief and affirming the Board’s parole revocation decision of 

February 8, 2016. Appointed counsel, Lowell T. Williams, Esquire (Counsel), has 

filed an application to withdraw as counsel, asserting that DeSabetino’s petition for 

review is meritless. We grant Counsel’s application and affirm the Board’s decision.

On July 23, 1985, DeSabetino was sentenced to an aggregate term of 

15 to 30 years confinement. Certified Record (C.R.) at 8. His original minimum 

release date was August 10, 1999, and his original maximum release date was 

August 10, 2014. Id. On March 23, 2000, the Board granted DeSabetino parole and 
2

he was released on May 8, 2000, with 14 years, 3 months, and 2 days remaining on 

his sentence. C.R. at 5-10, 12.

On August 6, 2001, the Board declared DeSabetino delinquent for 

violating conditions of his parole and he was arrested on the Board’s detainer on 

January 15, 2002. C.R. at 13-15, 21. On February 6, 2002, the Board voted to 

revoke DeSabetino’s parole and determined that he should be recommitted to a state 

correctional institution as a technical parole violator (TPV) to serve 10 months of 

backtime1for multiple technical violations. C.R. at 25-26. In recalculating 

DeSabetino’s maximum release date, the Board credited the time that he complied 

with the terms of his parole while at liberty, but denied credit for the five months 

and nine days that he was at liberty but in delinquency. C.R. at 27. Consequently, 

the Board determined that the total time remaining on his sentence was 13 years and 

4 days. Id. The Board recalculated his maximum release date as July 2, 2015.

2

 C.R. 

at 32.

The Board granted DeSabetino reparole on March 21, 2003, and he was 

released on May 1, 2003, with 12 years and 2 months remaining on his original 

 

1 This Court has previously defined the term backtime as:

[T]hat part of an existing judicially-imposed sentence which the 

Board directs a parolee to complete following a finding after a civil

administrative hearing that the parolee violated the terms and 

conditions of parole, which time must be served before the parolee 

may again be eligible to be considered for a grant of parole.

Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth. 1984) 

(emphasis in original).

2 The Board originally recalculated DeSabetino’s maximum date as January 19, 2015;

however, the Board rescinded its decision on September 25, 2002, and recalculated his maximum 

date as July 2, 2015. C.R. at 27-32.
3

sentence. C.R. at 29-32. On July 18, 2005, DeSabetino was arrested on new charges 

but released on his own recognizance. C.R. at 35. DeSabetino was arrested again

for new charges on August 26, 2005. C.R. at 37-39. The Board issued a warrant to 

commit and detain DeSabetino on August 27, 2005. C.R. at 40-41.

On January 12, 2006, DeSabetino pled guilty to the August 26, 2005 

charges and was sentenced to an aggregate term of two years of probation. C.R. at 

52-55. DeSabetino was found guilty of the July 18, 2005 charges on February 17, 

2006, for which he received a sentence of three to six years confinement. C.R. at 

35, 61. The Board subsequently voted to revoke DeSabetino’s parole and recommit 

him as a convicted parole violator (CPV) to serve 18 months backtime. C.R. at 65-

69. The Board credited DeSabetino for the 233 days he was incarcerated on the 

Board’s detainer from August 27, 2005, until his conviction on February 17, 2006. 

C.R. at 104. He was transferred into the custody of the Pennsylvania Department of 

Corrections (DOC) and became available to serve his backtime on August 9, 2006, 

and the Board therefore recalculated DeSabetino’s maximum release date as 

February 19, 2018.3 C.R. at 95, 104.

The Board granted DeSabetino reparole on September 21, 2007, and he 

was released on October 22, 2007, to serve the sentence for his February 17, 2006 

conviction. C.R. 107-17. The Board granted him parole from his February 17, 2006 

conviction on April 16, 2010, and DeSabetino was actually released on July 22, 

2010. C.R. at 113-17. He was arrested for new charges on March 12, 2015. C.R. 

at 120-25.

 

3 The Board originally recalculated DeSabetino’s maximum release date as May 29, 2018, 

however, it modified its order, deleting all reference to the August 26, 2005 charges because the 

hearing was untimely as to those convictions, and recalculated his maximum release date 

accordingly. C.R. at 87, 94.
4

The Board issued a warrant to commit and detain DeSabetino on March 

13, 2015. C.R. at 136. On April 16, 2015, the Board detained him pending 

disposition of his new criminal charges. C.R. at 147. On August 18, 2015, 

DeSabetino was convicted on one of the charges from March 12, 2015, and received 

a sentence of 9 to 18 months confinement. C.R. at 152-55, 181.

DeSabetino was returned to the custody of the DOC on January 7, 2016. 

C.R. at 259. He received notification that the Board would hold a violation and 

revocation hearing and requested a panel hearing on January 8, 2016. C.R. at 165-

67. A panel of the Board held the hearing on February 2, 2016. C.R. 173-80. 

DeSabetino was present and represented by counsel. C.R. at 186.

On February 8, 2016, the Board voted to revoke DeSabetino’s parole 

and recommit him as a TPV to serve 6 months backtime, and as a CPV to serve 24 

months backtime, concurrently. C.R. at 227-28, 265. The Board awarded 

DeSabetino credit for the time he spent at liberty from October 22, 2007, until the 

Board issued its detainer on March 13, 2015. C.R. at 261. At the time of his detainer, 

DeSabetino had 2 years, 11 months, and 6 days remaining on his sentence and the 

Board recalculated his maximum release date as November 18, 2018. Id. 

In March 2016, DeSabetino filed a request for administrative relief of 

the Board’s revocation decision, arguing that he was not provided a timely parole 

revocation hearing and that the Board exceeded its authority in recalculating his 

maximum release date.4 C.R. at 235, 255. In a decision mailed February 16, 2017, 

the Board denied DeSabetino’s request for administrative relief and affirmed its 

decision. DeSabetino then filed a petition seeking this Court’s review. Thereafter, 

Counsel filed an application to withdraw and a no-merit letter under Commonwealth 

 

4 DeSabetino originally filed his administrative appeal pro se on March 8, 2016, but a

counseled appeal was filed on March 21, 2016, raising the same issues.
5

v. Turner, 544 A.2d 927 (Pa. 1988), contending that the appeal is meritless. On 

September 19, 2017, DeSabetino filed a brief, pro se, in support of his petition for 

review and the Board filed a brief in opposition.

When a court-appointed counsel concludes that a petitioner’s appeal is 

meritless, counsel may be permitted to withdraw if counsel: (1) notifies the petitioner 

of the request to withdraw; (2) furnishes the petitioner with a copy of a brief pursuant 

to Anders v. California, 386 U.S. 738 (1967), or a no-merit letter satisfying the 

requirements of Turner;

5

and (3) advises the petitioner of his right to retain new 

counsel or submit a brief on his own behalf. Miskovitch v. Pennsylvania Board of 

Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013). Once appointed counsel 

has fully complied with the technical requirements for withdrawal, the Court will 

independently review the merits of the petitioner’s claims. Id. at 70.

In this appeal, DeSabetino had a statutory right to counsel, and Counsel 

was only required to submit a no-merit letter in support of the petition to withdraw. 

A no-merit letter must set forth: (1) the nature and extent of counsel’s review of the 

 

5

In cases where there is a constitutional right to counsel, court-appointed counsel seeking 

to withdraw must submit an Anders brief that

(1) provide[s] a summary of the procedural history and facts, with 

citations to the record; (2) refer[s] to anything in the record that 

counsel believes arguably supports the appeal; (3) set[s] forth 

counsel’s conclusion that the appeal is frivolous; and (4) states 

counsel’s reasons for concluding that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Where, as here, the right to counsel is 

statutory and does not derive from the United States Constitution, counsel may provide a “no-merit 

letter,” which details the nature and extent of the attorney’s review, identifies each issue the 

petitioner wishes to raise, and explains why counsel concludes those issues are meritless. Turner, 

544 A.2d at 928.
6

case; (2) each issue that the inmate wishes to raise on appeal; and (3) counsel’s 

explanation of why each of those issues is meritless. Miskovitch, 77 A.3d at 69-70. 

The record reflects that Counsel informed DeSabetino of Counsel’s 

request to withdraw; provided DeSabetino with a no-merit letter that details 

Counsel’s review of the issues and the reasons why Counsel concluded those issues 

are meritless; and advised DeSabetino of his right to retain new counsel or raise any 

new points he might deem worthy of consideration. Because Counsel has satisfied 

the procedural requirements for withdrawal, the Court will independently review the 

merits of DeSabetino’s appeal.

On appeal,6 DeSabetino argues that the Board exceeded its authority 

and improperly modified his judicially-imposed maximum sentence when it 

recalculated his maximum release date to November 18, 2018. However, this 

argument is wholly without merit because it rests entirely on DeSabetino’s mistaken 

belief that the maximum date of his sentence, rather than the maximum length of his 

sentence, is controlling for purposes of recalculating his maximum release date.

Section 6138(a)(1) of the Prisons and Parole Code (Parole Code) 

provides that any parolee who, during the period of parole, commits a crime 

punishable by imprisonment and is convicted or found guilty of that crime may be 

recommitted as a CPV. 61 Pa. C.S. §6138(a)(1). Section 6138(a)(2), (2.1) of the 

Parole Code requires that a parolee recommitted as a CPV must serve the remainder 

of the term that he would have been compelled to serve had parole not been granted, 

with no credit for the time at liberty on parole, unless the Board exercises its 

 

6 Our scope of review is limited to determining whether necessary findings of fact are 

supported by substantial evidence, whether an error of law was committed, or whether 

constitutional rights were violated. McNally v. Pennsylvania Board of Probation and Parole, 940 

A.2d 1289, 1292 (Pa. Cmwlth. 2008).
7

discretion to award credit. 61 Pa. C.S. §6138(a)(2), (2.1). Additionally, Section 

6138(c)(2) of the Parole Code provides that a parolee recommitted as a TPV shall 

be given credit for the time served on parole in good standing, but no credit for 

delinquent time, and may be reentered to serve the remainder of the original sentence 

or sentences. 61 Pa. C.S. §6138(c)(2).

When DeSabetino was paroled to serve his new sentence on October 

22, 2007, he had 10 years, 3 months, and 28 days remaining on his original sentence. 

In its February 8, 2016 recommitment order, the Board credited the 7 years, 4 

months, and 19 days that DeSabetino complied with the terms of his parole. The 

Board’s recommitment order properly added the remainder of his original sentence, 

2 years, 11 months, and 6 days, to the date of his return to the Board’s custody7in 

calculating his new maximum release date. Consequently, when the Board imposed 

backtime, the Board did not impose an additional sentence on DeSabetino but, 

rather, directed DeSabetino to complete the remainder of his original judiciallymandated sentence. Epps v. Pennsylvania Board of Probation and Parole, 565 A.2d 

214, 217 (Pa. Cmwlth. 1989); see also Gundy v. Pennsylvania Board of Probation 

and Parole, 478 A.2d 139, 141 (Pa. Cmwlth. 1984) (noting that the Board’s action 

in recommitting a parolee “had no effect” upon the parolee’s judicially-imposed 

sentence).

Accordingly, the order of the Board is affirmed.

MICHAEL H. WOJCIK, Judge

 

7 A parolee is considered returned to the Board’s custody once the Board lodges its detainer. 

Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 305-06 (Pa. 2003).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul DeSabetino, :

:

Petitioner :

:

v. : No. 323 C.D. 2017

: 

Pennsylvania Board :

of Probation and Parole, :

:

Respondent :

O R D E R

AND NOW, this 5

th day of April, 2018, the Application to Withdraw 

as Counsel filed by Lowell T. Williams, Esquire, is GRANTED, and the order of the 

Pennsylvania Board of Probation and Parole, dated February 16, 2017, is 

AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge