IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald S. Stephens, :

: No. 1135 C.D. 2015

P etitioner : Submitted: June 3 , 2016

:

v. :

: Pennsylvania Board of Probation :

and Parole, :

: Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE FRIEDMAN FILED: August 11, 2016

Ronal d S. Stephens petitions for rev iew of the June 2 , 201 5

,

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

Stephens’ petition for administrative review of the Board ’ s recommitment order and

recalculation of Stephens’ parole violation maximum date

. Appointed counsel, Harry

J. Cancelmi , Esquire (Counsel), has filed an application for leave to withdraw from

representation on the ground that Stephen s ’ petition for review lacks merit. We grant

Counsel ’ s application for leave to withdraw and affirm

.

On April 19, 2001, the Court of Common Pleas of Delaware Cou nty

sentenced Stephens to 8 to 16 years’ imprisonment. ( C. R. at 1.) The Board paroled

Stephens on October 19, 2011, with a maximum parole violation date of October 13,2

2019. ( Id. at 25.) On December 27 , 2013, police arrested Stephens on new criminal

charges , which were filed in the Court of Common Pleas of Montgomery County

(Montgomery County) . ( Id. at 28 , 74 .) Stephens did not post bail. ( Id. at 74 .) On

December 28, 2013, the Board lodged its detai ner against Stephens. ( Id. at 26.) By

order mailed April 1, 2014, the Board recommitted Stephens as a technical parole

violator to serve six months’ backtime . ( Id. at 56

- 58.)

On September 17, 2014, Montgomery County convicted Stephens of the

new crim inal charges . ( Id. at 75.) O n Mar ch 10, 2015, Montgomery County

sentenced him to 4 to 10 years’ imprisonment with 438 days’ credit . ( Id. at 75, 82.)

By order mailed May 5, 2015, the Board recommitted Stephens as a convicted parole

violator to serve 36 months’ backtime concurrent with his prior six months’

backtime. ( Id. at 95.) The Board recalculated Stephens’ parole violation maximum

date to March 4, 2023. ( Id. )

On May 11, 2015, Stephens mailed a petition for administrative review

challenging the Board’s recalculation of his parole violation maximum date. ( Id. at

97 .) On June 2, 2015, t he Board denied Stephen s ’ petition for administrative review

,

and St ephens appealed to this court. 1 ( Id. at 100

- 01.) On May 26, 2015, Stephens

mailed an amended petition for administrative review

, arguing that the Board lacked

authority to extend his judicially

- imposed original sentence. ( Id. at 102.) On July 10,

2015, the Board informed Stephens that in a ccordance with Board regulations

, his

1 Our scope of 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

evidence. Section 704 of the Administrative Agency Law, 2 Pa. C .S. §704.3

amended petition would not be accepted because it was a second or subsequent

petition for administrative review

. ( Id. at 104.) On March 21, 2016, Counsel filed an

application for leave to withdraw and an Anders 2 brief with this court.

When court

- appointed counsel concludes that a petitioner ’ s appeal is

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

of the request to withdr aw; (2) furnishes the petitioner with a copy of an Anders brief

or a no

- merit letter; and (3) advises the petitioner of his right to retain new counsel or

proceed pro se

. Encarnacion v. Pennsylvania Board of Probation and Parole , 990

A.2d 123, 125 (Pa. Cm wlth. 2010).

In this case, because Stephens does not have a constitutional right to

counsel, 3 Counsel was only required to provide Stephens with a no

- merit letter rather

than an Anders brief. See Hughes v. Pennsylvania Board of Probation and Parole

,

977 A.2d 19, 24

- 25 (Pa. Cmwlth. 2009) ( en banc ). Therefore , we will “apply the

standard of whether the petitioner’s claims are without merit, rather than whether

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

3 In a parole revocation matter, a constitutional right to counsel exists when the parolee

raises:

[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 d ifficult to develop or present.

Hughes v. Pennsylvania Board of Probation and Parole , 977 A.2d 19, 2 6 (Pa. Cmwlth. 2009) ( en

banc ) (citation omitted).4

they are frivolous.” Id. at 26 n. 4. A no

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

extent of counsel ’ s review of the case; (2) the issues the petitioner wishes to raise on

appeal; and (3) counsel ’ s analysis of why the petitioner’s appeal is meritless. Id. at

24

- 25

. If counsel satisfies these requirements, this court will conduct an in dependent

review of the petitioner’s appeal to determine if the appeal is meritless

. Id. at 25

.

Here, the record shows that Counsel notified Stephens of his request to

withdraw and provided Stephens with a copy of his Anders brief

. Counsel ’ s Anders

brief shows the nature and extent of his review of the case, sets forth the issues raised,

and provides analysis as to why Counsel concluded that Stephens’ appeal is meritless.

Finally, Counsel advised Stephens of his right to retain new counsel or procee d pro

se

. Because Counsel has satisfied these technical requirements, we will now

independent ly review the merits of Stephens’ appeal.

First, Stephens argues that the Board erred in failing to credit his original

sentence for the 438 days he was incarcerated from December 2 8 , 2013, to Marc h 10,

2015. We disagree. “[W] hen a parolee: (1) is incarcerated on both new criminal

charges and a detainer filed by the Board and (2) does not post bail for the new

criminal charges, the ti me spent incarcerated shall be credited against the sentence for

his new criminal charges. ” Williams v. Pennsylvania Board of Probation and Parole

,

68 A.3d 386, 389

- 90 (Pa. Cmwlth. 2013) . Here, Stephens was incarcerated on the

new criminal charges and th e Board’s detainer from December 2 8 , 2013, the day after

his arrest, to March 10, 2015 , the day he was sentenced . Stephens did not post bail

for the new criminal charges. Therefore, the time Stephens spent incarcerated on5

both the new criminal charges an d the Board’s detainer was properly credited to

Stephens’ new sentence.

Next , Stephens argues that the Board’s recalculation of his parole

violation maximum date to March 4, 2023, is a n unconstitutional extension of his

judicially

- imposed original senten ce. However, Stephens first raised this issue in his

amended petition for administrative review

. Pursuant to the Board ’ s regulation at 37

Pa. Co de § 73.1(b)(3), the Board will not receive second or subsequent petitions for

administrative review. Therefore, we may not consider this issue on appeal. See

McKenzie v. Pennsylvania Board of Probation and Parole , 963 A.2d 616, 621 (Pa.

Cmwlth . 2009) (“[F]ailure to raise an issue before the Board results in waiver and

precludes this Court from review.”).

Accordingly, because we conclude that Stephens’ appeal is meritless, we

grant Counsel ’ s application for leave to withdraw and affirm the Board ’ s

determination.

___________________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald S. Stephens, :

: No. 1135 C.D. 2015

Petitioner :

:

v. :

: Pennsylvania Board of Probation :

and Parole, :

: Respondent :

O R D E R

AND NOW, this 11 th day of August , 201 6

, we hereby grant the

application for leave to withdraw filed by Harry J. Cancelmi, Esquire

, and affirm the

June 2, 2015

, determination of the Pennsylvania Board of Probation and Parole.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge