IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Clayton, :

Petitioner :

:

v. : No. 431 C.D. 2016

: SUBMITTED: May 19, 2017 Pennsylvania Board of : Probation and Parole, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON , Judge

HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER

, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE HEARTHWAY FILED: August 31, 2017

James Clayton petitions for review of the February 18, 2016

determination of the Pennsylvania Board of Probation and Parole (Board) denying

Clayton’s request for administrative review of the Board’s recommitment order.

Appointed counsel, James L. Best, Esquire (Counsel), has filed a petition for leave

to withdraw as counsel, asserting that Clayton’s petition for review is meritless.

We grant Counsel’s petition and affirm the Board’s determination.

On February 25, 2011, Clayton was sentenced to serve 21⁄2 to 5 years

in prison for drug

- related offenses. On January 6, 2014, Clayton was paroled to

Liberty Management halfway house. On April 12, 2014, Clayton absconded from2

the house and was arrested on new criminal charges on May 8, 2014. On May 16,

2014, a parole revocation hearing was held at which Clayton admitted being a

technical parole violator (TPV). On June 19, 2014, the Board recommitted

Clayton as a TPV to serve 6 months of backtime.

On February 12, 2015, Clayton, after plead ing guilty to the new

criminal charges, was sentenced to 111⁄2 to 23 months imprisonment on the new

charges. At a Board hearing on March 27, 2015, Clayton admitted to being a

convicted parole violator (CPV) due to his criminal conviction on the new charges.

On September 23, 2015, the Board recommitted Clayton as a CPV to serve 24

months of backtime. Clayton requested administrative review, which was denied

by the Board. Subsequently, Clayton petition ed this C ourt for review. 1 Thereafter,

Counsel filed an application for leave to withdraw and a no

- merit letter, contending

that Clayton’s appeal is meritless.

When court

- appointed counsel concludes that a petitioner’s appeal is

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

pet itioner of the request to withdraw; (2) furnishes the petitioner with a copy of an

Anders 2 brief or a no

- merit letter satisfying the requirements of Turner ; 3 and (3)

advises the petitioner of his right to retain new counsel or submit a brief on his

1 Our review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are supported by

substantial e vidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

2 Anders v. State of California , 386 U.S. 738 (1967).

3 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988).3

own beh alf. Encarnacion v. Pennsylvania Board of Probation and Parole , 990

A.2d 123, 125 (Pa. Cmwlth. 2010). A no

- merit letter must set forth: (1) the nature

and extent of the counsel’s review of the case; (2) the issues the petitioner wishes

to raise on appeal ; and (3) counsel’s analysis as to why the appeal has no merit. Id.

at 126. Once th ese requirements are met, this C ourt will independently review

petitioner’s appeal to determine whether it is meritless. Id.

Here, Counsel mailed Clayton a letter infor ming Clayton of Counsel’s

request to withdraw. Counsel included a no

- merit letter , which detailed the nature

and extent of Counsel’s review of Clayton’s case, set forth the issues raised, and

explained why Counsel concluded that Clayton’s appeal is meritl ess. Counsel also

provided Clayton with a copy of this Court’s order advising Clayton that he may

obtain substitute counsel at his own expense to file a brief in support of Clayton’s

petition or that he may file a brief on his own behalf. Because Counsel has

satisfied the elemental requirements of Turner , this Court will now independently

review the merits of Clayton’s appeal.

Clayton argues that the Board ’s recommitment of him as a CPV and

the resulting new maximum sentence date is in error because it countermands,

reverses, and interferes with the finality of court orders. Specifically, Clayton

argues that the new maximum release date is the Board’s interpretation of Section

6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138(a)(2), and

that this interpretation encroaches on the exclusive province of the judicial branch

of government

. 4 Simply, Clayton argues that the Board violated the separation of

4 Section 6138(a) of the Code provides: (Footnote continued on next page...)4

powers doctrine by its notice of decision dated September 2 3, 2015 , which

forfeited his street time upon his parole revocation for a new criminal offense ; t hat

such forfeiture is unconstitutional because the Board is without power to alter a

judicial sentence

.

Clayton’s argument has been repeatedly rejected by o ur Courts. In

Young v. Pennsylvania Board of Probation and Parole , 409 A.2d 843 , 848 (Pa.

1979), our Supreme Court determined that the “Bo ard’s power to deny credit for

‘street time’ . . . is not an encroachment upon the judicial sentencing power.”

Furth er, in Gaito v. Pennsylvania Board of Probation and Parole , 412 A.2d 568,

570 (Pa. 1980), the Supreme Court stated that “when the Board refuses to credit a

[CPV] with time spent free on parole there is neither a usurpation of the judicial

(continued...)

Convicted violators.

–

(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 j ury 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 reente red 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.

61 Pa. C.S. §6138(a)(1) and (2).5

function of sente ncing nor a denial of the procedural safeguards to which persons

are entitled.” In Davidson v. Pennsylvania Board of Probation and Parole , 33

A.3d 682, 686 (Pa. Cmwlth. 2011), this Court agree d with Young and determined

that “the Board did not violate the separation of powers doctrine by acting pursuant

to 61 Pa. C.S. § 6138 and recommitting [the p] etitioner as a [CPV] without credit

for time served at liberty on parole.” Thus here, as in Young

, Ga i to , and Davidson

,
the Board in this case did not violat e the separation of powers doctrine when it

recommitted Clayton as a CPV to serve 24 months of backtime, thereby forfeiting

his time at liberty on parole

.

Accordingly, we grant Counsel’s petition for leave to withdraw as

counsel for Clayton and af firm the Board’s determination.

__________________________________ JULIA K . HEARTHWAY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Clayton, :

Petitioner :

:

v. : No. 431 C.D. 2016

: Pennsylvania Board of : Probation and Parole, :

Respondent :

O R D E R

AND NOW, this 31 st day of August, 201 7

, the petition for leave to

withdraw as counsel filed by James L. Best, Esq uire in the above

- captioned matter

is hereby granted and the order of the Pennsylvania Board of Probation and Parole

i s affirmed.

__________________________________ JULIA K . HEARTHWAY, Judge