IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Moore, :

Petitioner :

: No. 1604 C.D. 2016

v. :

: Submitted: April 13, 2017

Pennsylvania Board of :

Probation and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: June 26, 2017

Michelle M. Alaskey, Esquire (Counsel), of the Forest County Public 

Defender’s Office, petitions the Court for leave to withdraw as counsel on behalf of 

David Moore (Moore). Moore petitions for review of the April 21, 2016 decision of

the Pennsylvania Board of Probation and Parole (Board), which denied his 

administrative appeal and affirmed the Board’s January 21, 2016 decision. Counsel 

seeks leave to withdraw on the grounds that Moore’s petition for review lacks merit.

On April 21, 1995, Moore was sentenced to a term of incarceration of 8 

years and 4 months to 20 years after he was found guilty of aggravated assault. On 

April 24, 1995, Moore was sentenced to a consecutive term of incarceration of 1 year 

and 6 months to 5 years for robbery. Moore’s original aggregate sentence was 9 
2

years and 10 months to 25 years. Moore’s original maximum sentence date was 

November, 5, 2019. (Certified Record (C.R.) at 1.)

Following the service of his minimum sentence, the Board voted to 

parole Moore by decision dated March 7, 2005. Moore signed an acknowledgment of 

the conditions governing parole on April 15, 2005. This acknowledgment advised 

him that if he was convicted of a crime while on parole, the Board had the authority 

to recommit him to serve the balance of his sentence, with no credit for time spent at 

liberty on parole. On April 18, 2005, Moore was released on parole. (C.R. at 9-12.)

On May 12, 2006, Moore was arrested for possession of a controlled 

substance by a person not registered. Moore was incarcerated in lieu of monetary 

bail. (C.R. at 13, 14.) On May 13, 2006, the Board issued a warrant to commit and 

detain Moore. (C.R. at 18.) Moore posted bail on May 13, 2006. (C.R. at 14.) 

Moore, however, remained incarcerated on the Board’s detainer pending disposition 

of the criminal charges. (C.R. at 18, 34.) On November 14, 2006, the charge against 

Moore was dismissed. (C.R. at 15.) Moore was re-released on parole on December 

13, 2006. (C.R. at 44, 162.)

On March 1, 2011, Moore was arrested and charged with possessing an 

instrument of crime and murder. (C.R. at 38.) Moore was incarcerated in lieu of 

monetary bail and bail was not posted. (C.R. at 42.) On March 2, 2011, the Board 

issued a warrant to commit and detain Moore. (C.R. at 40.) Moore was detained 

pending disposition of the charge. (C.R. at 53.) On August 29, 2011, Moore was 

acquitted of the charges at trial. Moore was re-released on parole on September 1, 

2011. (C.R. at 79.)

On February 28, 2014, Moore was arrested and charged with several 

offenses, including aggravated assault, unlawful restraint, false imprisonment, 
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possessing an instrument of crime with intent, terroristic threats, endangering welfare, 

and harassment. (C.R. at 63, 88.) Moore was incarcerated in lieu of monetary bail. 

(C.R. at 56.) Monetary bail was set, but not posted. (C.R. at 56.) On February 28, 

2014, the Board issued a warrant to commit and detain Moore. (C.R. at 67.) On 

March 7, 2014, the Board issued a notice of charges and hearing, and a hearing was 

scheduled for and held on March 18, 2014. (C.R. at 68, 71, 82.) Pursuant to the 

Board’s decision recorded on April 7, 2014, Moore was detained pending disposition 

of the criminal charges. (C.R. at 84.) On April 29, Moore’s bail was modified to 

release on his own recognizance, but he remained incarcerated solely on the Board’s 

detainer. (C.R. at 107.)

On October 13, 2015, Moore pled guilty to possession of a firearm 

prohibited, endangering the welfare of children, simple assault, and terroristic threats 

with the intent to terrorize another and was sentenced to a term of incarceration of 5 

to 10 years on the charge of possession of a firearm prohibited and an aggregate of 2 

years, 6 months to 5 years for each of the other offenses, to be served concurrently 

with the firearm possession sentence. (C.R. at 124.)

On October 21, 2015, the Board issued a second notice of charges and 

hearing, with a hearing scheduled for November 30, 2015. (C.R. at 127.) Moore was 

granted a continuance to secure counsel, and the hearing was held on December 17, 

2015. (C.R. at 132, 135.) By decision recorded January 21, 2016, and mailed 

February 17, 2016, the Board revoked Moore’s parole and recommitted Moore as a 

convicted parole violator (CPV) to serve his unexpired term. This order indicated 

that Moore would receive credit for time spent incarcerated from May 12, 2006, to 

December 12, 2006, and from March 1, 2011, to September 1, 2011. Moore also 

received credit for the period of April 29, 2014, to October 13, 2015. The Board 
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recalculated Moore’s parole violation maximum sentence date to be January 13, 

2028. (C.R. at 160-62.) 

On March 2, 2016, Moore’s attorney faxed the Board an administrative 

remedies form challenging the Board decision, arguing that the Board’s recalculation 

of Moore’s parole violation maximum date was erroneous because the Board lacks 

authority to alter a judicially imposed sentence. Moore’s administrative remedies 

form described the Board’s action as imposing an illegal sentence and violative of 

constitutional law. (C.R. at 165.)

By decision mailed April 21, 2016, the Board denied Moore’s petition 

and affirmed the January 21, 2016 decision. (C.R. at 167.) The Board explained that 

the decision to recommit Moore as a CPV gave the Board statutory authority to 

recalculate Moore’s sentence to reflect that he received no credit for the period he 

was at liberty on parole pursuant to section 6138(a)(2) of the Prisons and Parole Code 

(Parole Code), 61 Pa.C.S. §6138(a)(2). The Board indicated it advised Moore of this 

potential outcome via the acknowledgment of conditions governing parole that Moore 

signed on April 15, 2005. The Board also explained that the ability to challenge the 

recalculation satisfies Moore’s due process rights, so the recalculation did not violate 

any constitutional provisions per Young v. Commonwealth Board of Probation and 

Parole, 409 A.2d 843 (Pa. 1979). (C.R. at 167.)

In the meantime, while the Board’s decision as to the aforementioned 

administrative appeal was pending, the Board received a second administrative 

remedies form from Moore’s attorney dated March 3, 2016, reiterating the earlier 

argument that the Board lacked the authority to alter a judicially imposed sentence. 

(C.R. at 177.) By decision mailed November 21, 2016, the Board denied Moore’s 

appeal and affirmed the January 21, 2016 decision. The Board explained that it had 
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the authority to establish a parole violation maximum date for CPVs. Armbruster v. 

Pennsylvania Board of Probation and Parole, 919 A.2d 348 (Pa. Cmwlth. 2007). 

The Board further stated that as a CPV, Moore was not entitled to receive credit for 

time spent at liberty on parole, per section 6138(a)(2) of the Parole Code. (C.R. at 

180.)

On September 28, 2016, Counsel filed an application for leave to file a 

petition for review nunc pro tunc. By order dated October 17, 2016, we granted 

Counsel’s application and accepted Moore’s petition. 

However, on February 7, 2017, Counsel filed an application for leave to 

withdraw and a no-merit “Turner” letter, detailing the reasons why she determined 

that Moore’s appeal lacked merit. Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988). Counsel served copies of this letter on Moore and the Board.

In order to withdraw, Counsel must satisfy the procedural requirement 

set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758, 

760-61 (Pa. Cmwlth. 1985). Under Craig, counsel must notify the parolee of his 

request to withdraw, furnish the parolee with either a copy of a brief complying with 

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

requirements of Turner, and inform the parolee of his right to retain new counsel or 

submit a brief on his own behalf.

If counsel proceeds under Turner, the letter must contain: (1) the nature 

and extent of counsel’s review; (2) the issues the parolee wishes to raise; and (3) 

counsel’s analysis in concluding the parolee’s appeal is without merit. Hughes v. 

Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009); 

Zerby v. Shannon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). We require counsel to 

comply with these requirements to ensure that a parolee’s claims are considered and 
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that counsel has substantial reasons for concluding the claims are without merit. 

Zerby, 964 A.2d at 962.

In the present case, by letter dated February 6, 2017, Counsel explained 

the nature and extent of her review of the record, addressed the issues Moore wishes 

to raise, and set forth an analysis of those issues and her reasons for concluding they 

lacked merit. Counsel served copies of both her application to withdraw and the 

Turner letter on Moore and the Board. By order dated February 7, 2017, we advised 

Moore that he may obtain substitute counsel or file a brief on his own behalf and 

directed Counsel to serve a copy of the order upon Moore and file a certificate of 

service reflecting the same within 14 days. Counsel complied and filed a certificate 

of service with this court on February 10, 2017. Thus, Counsel has complied with the 

procedural requirements of Craig.

Having determined that Counsel satisfied the necessary procedural 

requirements to withdraw, we must now determine if Moore’s appeal is, in fact, 

without merit. An appeal is without merit when it lacks any basis in law or fact. 

Commonwealth v. Santiago, 978 A.2d 349, 356 (Pa. 2009). Moore reiterates his 

argument that the Board erred as a matter of law by extending the judicially imposed 

maximum sentence beyond the original maximum sentence date.

The Pennsylvania Supreme Court provided a helpful distinction between 

judicially mandated sentences and backtime compelled by the Board upon parole 

violators in Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299 

(Pa. 2003):

A sentence can be defined as the judgment formally 

pronounced by the court upon a defendant who has been 

convicted in a new criminal prosecution and which imposes 

the term of punishment to be served. By way of 

comparison, backtime is ‘that part of an existing judiciallyimposed sentence which the Board directs a parolee to 
7

complete following a finding[,] after a civil administrative 

hearing[,] that the parolee violated the terms and conditions 

of parole,’ and before the parolee begins to serve the new 

sentence.

Martin, 840 A.2d at 303 (emphasis in original) (citations omitted) (quoting Krantz v. 

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

1984)).

Moore argues that the Board does not have the authority to increase or 

decrease the maximum term imposed by the judiciary based on Commonwealth ex 

rel. Banks v. Cain, 28 A.2d 897 (Pa. 1942). (C.R. at 177.) His reliance on this 

precedent is misplaced, as explained by the Court in Knisley v. Pennsylvania Board 

of Probation and Parole, 362 A.2d 1146 (Pa. Cmwlth. 1976):

Banks held unconstitutional the portions of the Act which 

gave the Board power to either extend the duration of the 

parole beyond the maximum term or to discharge a parolee 

prior to expiration of the parole period . . . In altering the 

expiration dates of sentences, the Board is not altering the 

total time to be served by a convict under a court-imposed 

sentence. In Banks, it was held that the Board clearly could 

not require a person to remain on parole for a term of years 

in excess of the maximum number of years of the courtimposed sentence. In the instant cases, Plaintiffs are not 

given credit for their ‘street time’ and, therefore, upon 

recommitment for parole violation, must serve time for the 

duration of their previously-imposed original sentence.

Knisley, 362 A.2d at 1148 (citations omitted). 

In Young v. Pennsylvania Board of Probation and Parole, 409 A.2d 843 

(Pa. 1979), the Pennsylvania Supreme Court addressed the argument that the denial 

of credit for time spent at liberty on parole represented an increase in the judicially 

mandated sentence. The Court reasoned that the Board was operating under the 

express authority of the General Assembly, so there was no unconstitutional 

usurpation of judicial power when the Board recommitted the petitioner beyond the 
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original maximum sentence date. Id. at 846-47. In that case, the petitioner’s 

argument that the denial of credit for time at liberty on parole was effectively an 

extension of the maximum date failed because it sought to “equate time served on 

parole with time served in an institution.” Id. at 846. The Court further stated that 

“mere lapse of time without imprisonment . . . does not constitute service of sentence

. . . .” Id. (quoting Anderson v. Corall, 263 U.S. 193, 196 (1923)). This further 

reinforces that recommitting a CPV for the remainder of an unserved term is not an 

increase of the judicially mandated sentence.

Accordingly, as there is no basis in law or fact for the issues raised by 

Moore, we find his claim is without merit. Having found that Counsel satisfied the 

criteria under Turner, we grant Counsel’s motion for leave to withdraw and affirm the 

Board’s denial of administrative relief. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Moore, :

Petitioner :

: No. 1604 C.D. 2016

v. :

:

Pennsylvania Board of :

Probation and Parole, :

Respondent :

ORDER

AND NOW, this 26th day of June, 2017, the application for leave to 

withdraw as counsel filed by Michelle M. Alaskey, Esquire, is granted. The order 

of the Pennsylvania Board of Probation and Parole, dated November 16, 2016, is 

hereby affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge