IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy Cuthbert, :

Petitioner :

:

v. : No. 1116 C.D. 2018

: SUBMITTED: March 29, 2019

Pennsylvania Board of Probation and :

Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: July 12, 2019

Timothy Cuthbert (Cuthbert) petitions for review of an order of the 

Pennsylvania Board of Probation and Parole (Board) affirming two prior 

recommitment orders. In response to the Petition for Review, Cuthbert’s appointed 

counsel, David Crowley, Esquire (Counsel), submitted an Application to Withdraw 

as Counsel (Application to Withdraw) and a no-merit letter,1 concluding that the 

arguments raised in the Petition for Review are frivolous and without merit. After 

thorough consideration, we grant Counsel’s Application to Withdraw and affirm the 

Board’s July 18, 2018, order.

 

1

In a no-merit letter, appointed counsel seeks to withdraw from representation because 

“the case lacks merit, even if it is not so anemic as to be deemed wholly frivolous.” Com. v. 

Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).
2

I. Background

On June 4, 2007, Cuthbert was found guilty in the Court of Common Pleas of 

Philadelphia County of one count of criminal trespass. He received a sentence of 18 

to 36 months. 

On January 23, 2008, Cuthbert pleaded guilty in the Court of Common Pleas 

of Philadelphia County to three counts of burglary in three separate cases. He

received three concurrent sentences of 42 to 84 months each, to run consecutively to 

the sentence previously imposed for criminal trespass. 

Cuthbert was subsequently paroled and was released from state prison on 

November 30, 2015. At that time his maximum date was October 28, 2017. He had 

698 days remaining on his combined sentence.

On December 28, 2015, the Board issued a detainer for Cuthbert for violations 

of the terms of his parole. The Board ordered him to be sent to a parole violator 

center. Cuthbert completed his time at the parole violator center on February 29,

2016. However, he was not formally discharged until April 25, 2016, as he did not 

have an approved home plan until that date. 

Thereafter, the Board declared Cuthbert delinquent, effective October 19, 

2016. The Board issued a detainer on November 8, 2016. 

Cuthbert was subsequently arrested on new charges in Limerick Township, 

Pennsylvania. On December 7, 2016, he was remanded to the Montgomery County 

Correctional Facility due to his inability to post bail on a litany of charges related to 

fraud and theft in Montgomery County. He was later also indicted in Berks, Bucks,

and Lancaster Counties in a number of cases on similar charges. 

On January 26, 2017, the Board ordered Cuthbert to be recommitted as a 

technical parole violator (TPV). The Board ordered him to serve 6 months of 
3

backtime, but also directed that he would be paroled immediately, pending 

resolution of the criminal charges against him. 

Cuthbert ultimately pleaded guilty in 7 separate cases in the Courts of 

Common Pleas of Berks and Lancaster Counties to a total of 14 crimes including

fraud, theft, and conspiracy.2

On August 2, 2017, Cuthbert waived his right to a parole revocation hearing, 

as well as to counsel. He also admitted the veracity of his guilty pleas in Berks and 

Lancaster Counties. 

On August 21, 2017, Cuthbert pleaded guilty in the Court of Common Pleas 

of Bucks County to one count each of forgery, fraud, receiving stolen property, and 

conspiracy. He received an aggregate sentence of 2 to 4 years in state prison, with 

230 days of credit for time served prior to sentencing. 

On October 26, 2017, the Board modified its January 26, 2017, action by 

deleting its prior direction that Cuthbert be paroled. In addition, the Board ordered

him to serve 12 months of backtime as a convicted parole violator (CPV) when 

available, pending resolution of the outstanding criminal charges. This backtime 

was to be served concurrent with the 6 months of TPV backtime previously imposed. 

The Board recalculated Cuthbert’s maximum sentence date as July 10, 2019, subject 

to change. 

On November 13, 2017, Cuthbert mailed an Administrative Remedies Form 

to the Board challenging this action. He argued the Board’s recalculation of his 

maximum date would require him to serve time in excess of that imposed upon him 

as a result of his 2007 and 2008 convictions. He alleged the Board had not included 

 

2

In Berks County, Cuthbert received an aggregate sentence of 2 to 5 years in state prison, 

with 141 days of credit for time served. In Lancaster County, he received an aggregate sentence 

of 2 to 4 years in state prison.
4

a time calculation sheet when it imposed backtime against him as a CPV. Thus, he 

stated he had no way to determine whether the Board had forfeited any of his street 

time. He maintained the Board was required to award credit for street time except 

where parole was revoked due to the commission of violent offenses. 

On November 16, 2017, Cuthbert pleaded guilty in the Court of Common 

Pleas of Montgomery County to one count of dealing in the proceeds of unlawful 

activity. He received a sentence of 18 to 36 months in state prison, concurrent with 

his other active sentences. He received credit for 345 days of time served. Cuthbert

waived his right to a parole revocation hearing regarding his Bucks County and 

Montgomery County convictions. 

On January 11, 2018, Cuthbert sent a letter to the Board inquiring as to the 

status of his pending sentence calculation challenge. He reiterated the arguments he 

had previously asserted.

On February 9, 2018, the Board ordered Cuthbert to serve the balance of the 

aggregate sentence remaining from his 2007 and 2008 convictions as a CPV, a total 

of 1 year, 7 months, and 28 days. The Board recalculated Cuthbert’s maximum date 

as July 15, 2019. The Board elected not to award him credit for street time, citing

as reasons his “poor supervision history” and “absconding.” Certified Record (C.R.)

at 242-43. 

On February 26, 2018, Cuthbert mailed another Administrative Remedies 

Form to the Board. He argued that the Board had again miscalculated his maximum 

date and had failed to properly credit him for the aggregate 12 months of CPV/TPV 

backtime it had previously imposed upon him.

On July 18, 2018, the Board responded to Cuthbert’s various administrative

submissions in a lengthy order addressing each of his arguments. The Board stated 
5

Cuthbert was eligible to serve the imposed backtime stemming from his 2007 and 

2008 convictions only after the resolution of the myriad more recent criminal 

charges against him. The Board explained its calculation of Cuthbert’s maximum 

date. It declared it had both properly exercised its statutory discretion and made 

clear its reasons for denying street time credit. Consequently, the Board found 

Cuthbert’s claims to be without merit and affirmed its previous sentence 

calculations. 

II. Issues

In his Petition for Review,3 Cuthbert asserts that the Board inaccurately 

calculated his maximum sentence date, thereby requiring him to serve time in excess 

of that which had been imposed upon him as a result of his 2007 and 2008 

convictions. He contends the Board failed to properly credit him for time served, 

including for periods when he resided at community corrections or parole violation 

centers. Further, he argues the Board unlawfully declined to give him credit for 

street time. 

In his Application to Withdraw, Counsel states that he has reviewed the 

Certified Record, along with notes written during his interview of Cuthbert, and that 

he has concluded Cuthbert’s appeal was “without merit.” Application to Withdraw 

at 2. 

 

3 Under Section 704 of the Administrative Agency Law, our review is limited to 

determining whether the Board violated Cuthbert’s constitutional rights, committed an error of 

law, or made findings of fact that were not supported by substantial evidence. 2 Pa. C.S. § 704.
6

A. Application to Withdraw

Before addressing the validity of Cuthbert’s substantive arguments, we must 

assess the adequacy of Counsel’s no-merit letter.

4

 A no-merit letter must explain the 

nature and extent of counsel’s review, list each issue the petitioner wished to raise, 

and discuss why those issues are meritless. Seilhamer v. Pa. Bd. of Prob. & Parole,

996 A.2d 40, 43 n.4 (Pa. Cmwlth. 2010). If the no-merit letter satisfies these basic 

requirements, we then review the soundness of a petitioner’s request for relief. Zerby 

v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009). 

Counsel’s no-merit letter satisfies these technical requirements. It recites the 

relevant factual and procedural history and discusses each argument raised by 

Cuthbert. Counsel provides a thorough explanation, with citations of authority, 

regarding his conclusion that none of Cuthbert’s arguments afford a basis for relief. 

Counsel provided Cuthbert with copies of these documents, informed him of

Counsel’s intention to seek permission to withdraw, and advised him of his right to 

retain another attorney or to represent himself in this matter. Consequently, we will 

proceed to an independent examination of the Petition for Review, in order to 

determine whether any of Cuthbert’s claims are meritorious.

 

4 Pursuant to Anders v. California, 386 U.S. 738 (1967), court-appointed counsel generally 

must file a brief in support of a request to withdraw from representation. See Com. v. Santiago, 

978 A.2d 349 (Pa. 2009). However, where no constitutional right to counsel is involved, an 

attorney seeking to withdraw from representation in a probation and parole case need only file a 

no-merit letter, as opposed to an Anders brief. Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 

40 (Pa. Cmwlth. 2010); Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19 (Pa. Cmwlth. 2009).

Here, Cuthbert simply challenges the Board’s calculation of his maximum sentence date, 

its imposition of backtime, and its credit calculations. Therefore, Counsel appropriately elected to 

file a no-merit letter. See Seilhamer.
7

B. Calculation of Maximum Sentence Date

Regarding Cuthbert’s claim that he should have received additional credit for 

time served at community corrections or parole violator centers, Counsel states that 

Cuthbert failed to argue before the Board that his residence at such facilities was 

akin to incarceration. Thus, Cuthbert waived this issue. We agree.

Residential programs in community corrections and parole centers may, in 

some instances, impose burdens upon resident parolees which are functionally

equivalent to incarceration. However, it is the parolee’s burden to present an 

argument to this effect before the Board. Cox v. Pa. Bd. of Prob. & Parole, 493 

A.2d 680 (Pa. 1985). 

Here, Cuthbert checked “Sentence Credit Challenge” in the “Petition for 

Administrative Review” section of his November 13, 2017, Administrative 

Remedies Form, and then stated he had “spent a total of over six months in halfway 

house [sic] and altogether 19 months in the streets. I never receive [sic] with the 

revocation order a time calculation sheet with this order.” C.R. at 264. Cuthbert did 

not pinpoint the specific span of dates to which this “over six months” referred, nor 

did he identify any location at which he believed his residence entitled him to credit 

for time served. Further, he did not elaborate on this claim in the narrative statement 

he attached. Notably, he did not mention this argument in his subsequent January 

11, 2018, letter to the Board or his February 26, 2018, Administrative Remedies 

Form. A single oblique reference to his residence at a halfway house was 

insufficiently specific and did not properly put the Board on notice regarding the 

substance of this claim. Consequently, we agree with Counsel that Cuthbert has 

waived this issue. See Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 36 (Pa. 
8

Cmwlth. 2006); White v. Pa. Bd. of Prob. & Parole, 833 A.2d 819, 821 (Pa. Cmwlth. 

2003).

Next, Counsel concludes that Cuthbert was not entitled to credit towards his 

2007 and 2008 aggregate sentence for time served in pre-sentence detention due to 

his more recent arrests, because the length of this detention did not exceed the length 

of the sentences resulting from those arrests. We agree with Counsel that Cuthbert

was entitled to no additional credit towards his 2007 and 2008 sentences as a 

consequence of his pre-sentence detention. 

When a parole violator is held solely on the Board’s detainer, credit for that 

time must be applied to the individual’s original sentence, but when that individual 

is held both on the Board’s detainer and pending disposition of new charges, credit 

for that time must be applied towards any sentence stemming from those newer 

charges. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980). The only 

exceptions to this rule are where the individual is acquitted of the new charges or no 

new sentence is imposed, and where the time spent in pre-sentence custody exceeds 

the length of the new sentence. Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299 

(Pa. 2003); Gaito. In the former situation, all credit for time held in pre-sentence 

detention must be applied towards the individual’s original sentence, while in the 

latter situation, only the excess time may be credited towards his original sentence. 

Martin; Gaito. 

Here, Cuthbert was held solely on the Board’s detainer between November 8, 

2016, and December 7, 2016, for which the Board credited 29 days of time towards 

his original sentence. From December 7, 2016 to November 17, 2017, he was held

both on the Board’s detainer and for failure to make bail on the multitude of new

criminal charges against him. He received 345 days of credit towards his new
9

aggregate sentences as a result. Those sentences exceeded the length of credit time. 

Adding 29 to 345 equals 374, the precise number of days between November 8, 

2016, and November 17, 2017. Therefore, Petitioner received all the credit he was 

due as a consequence of his pre-sentence detention, and that credit was correctly 

apportioned between his original 2007 and 2008 sentences and his new sentences.

Next, Counsel notes that the Board explicitly declined to give Cuthbert credit 

for street time and explained its reasons for doing so. Counsel explains it is 

immaterial that the Board did not mention revoking street time credit in an earlier 

decision. We agree with Counsel that Petitioner was not entitled to credit for time 

spent at liberty on parole. 

The Board has discretionary power, pursuant to Subsection 6138(a)(2.1) of 

the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2.1), to grant credit to a CPV for 

time served at liberty on parole, except in a handful of circumstances that are not 

relevant to this matter. Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466 (Pa. 

2017). However, the Board must provide an adequate explanation when it declines 

to make such an award. Id. 

Here, the Board gave its reasons for denying Cuthbert credit for street time.

In its August 29, 2017, hearing report, the Board recommended that credit not be 

awarded, citing “[s]ix new convictions and delinquent at time of arrest[.]” C.R. at 

20, 25. In its February 2018 decision, the Board stated it was denying credit, in its 

discretion, for the time spent at liberty on parole, because of “poor supervision 

history” and “absconding.” Id. at 242-43. These statements satisfied the Board’s 
10

Pittman duties. See Hughes v. Pa. Bd. of Prob. & Parole, 179 A.3d 117 (Pa. 

Cmwlth. 2018).5

Finally, Counsel observes that Cuthbert became available to start serving the 

imposed backtime on November 16, 2017, the date upon which he was sentenced in 

the Court of Common Pleas of Montgomery County, resolving the final outstanding 

criminal case against him. Counsel points out that adding 1 year, 7 months, and 28 

days (the amount of backtime imposed by the Board) to this date results in a 

maximum date of July 15, 2019, which is the same as that calculated by the Board.

We agree with Counsel that the Board accurately calculated Cuthbert’s maximum

sentence date. 

When Cuthbert was paroled on November 30, 2015, his maximum sentence

date was October 28, 2017. The time remaining on his sentence was 698 days. After 

his new convictions, the Board ordered him to serve the balance of his remaining 

2007 and 2008 aggregate sentence as backtime. The Board gave him 29 days of 

credit for the period when he was held in custody exclusively as a result of the 

Board’s detainer. The Board awarded 63 days of credit for the time he spent between 

December 28, 2015, and February 29, 2016, at a parole violator center, for a total of 

92 days. Subtracting 92 days from 698 days results in an outstanding sentence length 

of 606 days.

Cuthbert became available to serve the backtime on November 16, 2017, the 

date upon which he entered his guilty plea in the Court of Common Pleas of 

 

5 Moreover, even ignoring the notations from the August 29, 2017, hearing report, the 

Board’s failure to articulate in the body of the October 26, 2017, decision its reasoning for 

declining to award Cuthbert credit for street time would not, in itself, justify granting relief to 

Cuthbert. We would have deemed the explanation found in the Board’s February 9, 2018, decision

to have cured this omission. Smoak v. Talaber, 193 A.3d 1160 (Pa. Cmwlth. 2018).
11

Montgomery County.6 Adding 606 days to November 16, 2017, results in a 

maximum date of July 15, 2019, which was precisely the Board’s conclusion. 

Therefore, the Board did not err in calculating Cuthbert’s maximum date.

III. Conclusion

Because we find Counsel’s no-merit letter is technically sufficient and 

Petitioner failed to preserve or raise any meritorious issues, we grant Counsel’s 

Application to Withdraw and affirm the Board’s July 18, 2018, order.

__________________________________

ELLEN CEISLER, Judge

 

6 Since Cuthbert’s multitude of recent guilty pleas resulted in an aggregate sentence with a 

maximum of more than 24 months, this new sentence must be served in a state correctional 

institution. 42 Pa. C.S. § 9762(a). Consequently, he must complete the backtime imposed by the 

Board on his original sentence before serving the new sentences. See 61 Pa. C.S. § 6138(a)(5).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy Cuthbert, :

Petitioner :

:

v. : No. 1116 C.D. 2018

:

Pennsylvania Board of Probation and :

Parole, :

Respondent :

O R D E R

AND NOW, this 12

th day of July, 2019, David Crowley, Esquire’s

Application to Withdraw as Counsel is GRANTED, and July 18, 2018, order of the 

Pennsylvania Board of Probation and Parole (Board) is AFFIRMED. The stay 

previously granted concerning the Board’s duty to file a brief is VACATED as moot.

__________________________________

ELLEN CEISLER, Judge