IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Toy N. Powell, :

Petitioner :

:

v. :

:

Pennsylvania Parole Board, : No. 874 C.D. 2022

Respondent : Submitted: May 5, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: June 30, 2023

Toy N. Powell (Powell) petitions for review from the June 22, 2022 

order of the Pennsylvania Parole Board (Board), which denied his challenge to the 

Board’s recalculation of his parole violation maximum sentence date (Board Order). 

Powell is represented by David Crowley, Esquire (Counsel), of the Centre County 

Public Defender’s Office, who asserts that the appeal is without merit and seeks 

permission to withdraw as counsel. For the following reasons, we grant Counsel’s 

Application to Withdraw Appearance (Application to Withdraw) and affirm the 

Board Order.

I. Background

On March 30, 2015, after a county probation revocation, Powell 

received a sentence of 6 months and 22 days to 2 years of incarceration, with a 
2

minimum incarceration date of September 3, 2015, and a maximum date of February 

12, 2017. See Certified Record (C.R.) at 1. Powell was thereafter paroled on 

November 30, 2015, but was declared delinquent effective December 16, 2016, after 

committing the offense of Accidents Involving Death or Personal Injury (New 

Charge) on December 11, 2016. See C.R. at 11; see also Docket No. CP-06-CR0002324-2021 (New Docket) at 2. Powell remained delinquent until his arrest in 

California on May 7, 2021. See C.R. at 14.

Powell’s bail was set on the New Charge on June 4, 2021, but Powell 

did not post bail and remained detained. See New Docket at 2. On June 30, 2021, 

Powell was recommitted as a technical parole violator pending the disposition of the 

New Charge. See C.R. at 14. The Notice of Board Decision Powell received at the 

time of his recommitment informed him that his parole violation maximum date of 

July 4, 2021, was subject to change if he was convicted on the pending New Charge. 

See C.R. at 16.

On September 30, 2021, Powell pleaded guilty to the New Charge and 

received a sentence of 3 to 6 years of incarceration with credit for 147 days of time 

served. See New Docket at 2, 4. As a result, on February 25, 2022, the Board 

recommitted Powell as a convicted parole violator, ordered Powell to serve six

months’ backtime, and extended his parole violation maximum sentence date to 

November 29, 2022. See C.R. at 20. The Board recalculated Powell’s maximum 

date to November 29, 2022, by subtracting the 28 days he was detained solely on the 

Board’s warrant following his May 7, 2021 arrest from the 440 days that remained 

unserved and outstanding on his original sentence at the time of his parole on 

November 30, 2015. See C.R. at 18. On March 3, 2022, the Board mailed the Notice 

of Board Decision (March 2022 Board Decision), which explained Powell’s 
3

maximum sentence calculation and informed Powell of the 30-day time limitation 

during which he would need to avail himself of the Board’s administrative remedies 

process to challenge the Board’s decision. See C.R. at 21.1 Powell did not avail 

himself of the administrative remedies process regarding the March 2022 Board 

Decision.

On May 12, 2022, the Board denied Powell’s request to be reparoled, 

directing instead that Powell serve his unexpired maximum sentence through 

November 29, 2022. See C.R. at 25. By letter dated June 5, 2022 (June 2022 

Letter),

2 Powell asserted that he had completed his backtime sentence as of July 4, 

2021, and that he had been denied credit (1) for time spent in an inpatient 

rehabilitation program in 2016 and (2) for a program he completed while imprisoned 

in Berks County in 2018. See C.R. at 27. The Board treated the June 2022 Letter as 

1 Specifically, the Notice of Board Decision provided:

This decision involves an issue that is subject to the Board’s 

administrative remedies process. See 37 Pa. Code § 73. Failure to 

administratively appeal the decision may affect your legal rights. If 

you wish to appeal this decision, you must file a request for 

administrative relief with the Board within thirty (30) days of the 

mailing date of this decision. This request shall set forth specifically 

the factual and legal bases for the allegations. You have the right to 

an attorney in this appeal and in any subsequent appeal to the 

Commonwealth Court. You may be entitled to counsel from the 

Public Defender’s Office at no cost. Administrative remedies 

form[s] and the names and addresses of all Chief Public Defenders 

in the Commonwealth are available upon request from the SCI 

parole office. Any request for a public defender should be sent 

directly to the Public Defender’s Office in the county where you 

currently reside. 

C.R. at 21.

2 The postage stamp on the June 2022 Letter indicates that it was mailed on June 9, 2022. 

See C.R. at 29. The Board’s timestamp indicates that the Board received Powell’s letter on June 

14, 2022. See C.R. at 27.
4

a petition for administrative review of the March 2022 Board Decision, which 

petition the Board denied as untimely by letter dated and mailed June 22, 2022 (June 

2022 Board Decision). See C.R. at 30. 

Powell timely appealed the June 2022 Board Decision to this Court on 

July 12, 2022,

3 and we appointed the Public Defender of Centre County to represent 

Powell herein. See Notice to the Commonwealth Court of Pennsylvania filed July 

12, 2022; see also Commonwealth Court Order dated September 20, 2022. On 

October 11, 2022, Counsel filed an Amended Petition for Review (Amended 

Petition) on Powell’s behalf that alleged that the Board failed to properly adjust 

Powell’s original maximum sentence date with all the time credits to which he was 

entitled. See Amended Petition at 3. On December 2, 2022, Counsel filed a 

Turner/Finley letter4(Turner/Finley Letter) and the Application to Withdraw with 

this Court. The Court then filed an order informing Powell that he could either 

obtain substitute counsel at his own expense to file a brief on his behalf or he could 

file a pro se brief on his own behalf within 30 days of the service of the order. See

3 Powell originally filed a handwritten document dated July 10, 2022, and entitled “Notice 

to the Commonwealth Court of Pennsylvania” with this Court on July 12, 2022. See Notice to the 

Commonwealth Court of Pennsylvania filed July 12, 2022. After receiving this Court’s notice 

regarding proper pro se appeals, Powell filed an ancillary petition for review and an application 

for leave to proceed in forma pauperis on August 12, 2022. See Petition for Review (Appellate 

Jurisdiction) filed August 12, 2022. We ascribe the original timely filing date to Powell’s ancillary 

petition for timeliness purposes.

4

See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. 1988) (en banc). Counsel files such a letter when seeking to withdraw from 

representation of a parole violator because the violator’s case lacks merit, although it may not be 

“so anemic as to be deemed wholly frivolous.” Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 

1203, 1204 n.2 (Pa. Cmwlth. 2020) (quoting Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. 

Super. 2007)) (internal quotation marks omitted). Such letters go by many names in the 

Commonwealth, including “no-merit letter,” “Finley letter,” “Turner letter,” and “Turner/Finley

letter.” See Anderson, 237 A.3d 1204 n.2.
5

Commonwealth Court Order dated December 8, 2022. Powell neither secured 

private counsel nor submitted a brief on his own behalf. On May 4, 2023, the Court 

entered an order directing that Counsel’s Application to Withdraw and the merits of 

Powell’s appeal of the June 2022 Board Decision be submitted on briefs. See

Commonwealth Court Order dated May 4, 2023.

II. Issues

Counsel has identified two issues for this Court’s review:

5

 first, 

whether Powell’s claims were waived for failure to exhaust administrative remedies 

of the Notice of Board Decision mailed March 3, 2022, and second, whether the 

Board correctly calculated Powell’s maximum sentence date. See Turner/Finley

Letter at 4-8.

III. Application to Withdraw

Before addressing the validity of Powell’s substantive arguments, we 

must assess the adequacy of the Turner/Finley Letter. As this Court has explained:

A Turner[/Finley] letter must include an explanation of the 

nature and extent of counsel’s review and list each issue 

the petitioner wished to have raised, with counsel’s 

explanation of why those issues are meritless. As long as 

a Turner[/Finley] letter satisfies these basic requirements, 

we may then review the soundness of a petitioner’s request 

for relief. However, if the letter fails on technical grounds, 

we must deny the request for leave to withdraw, without 

delving into the substance of the underlying petition for 

review, and may direct counsel to file either an amended 

request for leave to withdraw or a brief on behalf of their 

client.

5 Our review is limited to determining whether constitutional rights were violated, whether 

the adjudication was in accordance with law, and whether necessary findings were supported by 

substantial evidence. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).
6

Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1207 (Pa. Cmwlth. 2020)

(internal citations, quotation marks, and original brackets omitted).

Here, Counsel has satisfied the requirements for a Turner/Finley letter. 

In the Turner/Finley Letter, Counsel indicated that he reviewed the certified record, 

the notes from his meeting with Powell, and the New Docket. See Turner/Finley

Letter at 1. Counsel identified the issues raised and explained why each lacks merit. 

See Turner/Finley Letter at 4-8. Counsel served Powell with a copy of the 

Turner/Finley Letter and Application to Withdraw and advised him of his right to 

retain new counsel or proceed pro se. See Turner/Finley Letter at Proof of Service; 

see also Application to Withdraw at 2 & Proof of Service. Because Counsel 

complied with the technical and substantive requirements to request withdrawal, and 

because we agree that the appeal is frivolous as discussed infra, we grant the 

Application to Withdraw.

IV. Discussion of Claims

Regarding the exhaustion of administrative remedies, this Court has 

observed that

[u]nder the doctrine of exhaustion of administrative 

remedies, which we have previously held to be applicable 

to the Board’s recommitment orders, a parolee is required 

to exhaust all available administrative remedies before a 

right to judicial review of that order arises. Therefore, a 

parolee’s failure to exhaust his available administrative 

remedies acts as a bar to judicial intervention in the 

administrative process. 
7

St. Clair v. Pa. Bd. of Prob. & Parole, 493 A.2d 146, 151-52 (Pa. Cmwlth. 1985)

(internal citations omitted) (emphasis in original).

6

 Specifically, a parolee who 

wants to challenge aspects of a revocation order must file an administrative appeal 

with the Board within 30 days. See 37 Pa. Code § 73.1; see also Epps v. Pa. Bd. of 

Prob. & Parole, 565 A.2d 214, 216 (Pa. Cmwlth. 1989). “The failure to take an 

appeal within the time required by law will preclude [a] parolee’s assertion of the 

right to challenge the [B]oard’s recommittal order absent proof of ineffective 

assistance of counsel.” Epps, 565 A.2d at 216. As our Supreme Court has explained, 

compliance with administrative appeal time limitations is a jurisdictional 

requirement that must be fulfilled prior to reaching the merits of underlying claims. 

See Robinson v. Pa. Bd. of Prob. & Parole, 582 A.2d 857, 860 (Pa. 1990). An appeal 

that focuses on the substance of claims while ignoring the untimeliness of the 

underlying administrative appeal is frivolous. See id.

Here, Powell did not file an administrative appeal within 30 days of the 

March 2022 Board Decision that recommitted him as a convicted parole violator, 

but instead challenged the Board’s recalculation of his maximum sentence date over 

three months later in the June 2022 Letter. The Board treated the June 2022 Letter 

as a petition for administrative review of the March 2022 Board Decision and denied 

6 As this Court has further explained:

The primary purpose of the exhaustion doctrine is to ensure that 

claims will be heard, as a preliminary matter, by the body having 

expertise in the area. This is particularly important where the 

ultimate decision rests upon factual determinations lying within the 

expertise of the agency or where agency interpretations of relevant 

statutes or regulations are desireable. In addition, the exhaustion 

doctrine provides the agency with the opportunity to correct its own 

mistakes and to moot judicial controversies. 

St. Clair v. Pa. Bd. of Prob. & Parole, 493 A.2d 146, 152 (Pa. Cmwlth. 1985).
8

that petition as untimely. As a result, Counsel concluded the claim to be frivolous 

on appeal. We agree with the Board and Counsel’s assessments. Powell’s failure to 

employ the available administrative appeal procedures to timely challenge the 

recalculation of his maximum sentence date upon his recommitment as a convicted 

parole violator precluded his later petition for review of the recalculation and appeal 

of the denial thereof. See Epps; Robinson. 

Further, Powell’s claim that his maximum sentence date was 

improperly recalculated lacks merit. When released on parole, Powell had 440 days 

remaining on his sentence. Powell received credit for the 28 days he was detained 

solely on the Board’s warrant (from May 7, 2021, through June 4, 2021). See Gaito 

v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa. 1980) (holding that time spent 

incarcerated solely on a detainer warrant lodged by the Board is attributable to the 

original sentence term). However, to the extent Petitioner claims that he should 

receive a credit on his original sentence for the remaining time he spent incarcerated 

while awaiting trial on the New Charge, he is incorrect. Our Supreme Court has 

long held that where a parole violator remains incarcerated prior to trial on new 

charges because he has failed to satisfy bail requirements on the new criminal 

charges, such pre-trial custody time is credited to the parole violator’s new sentence, 

not his original sentence.7 See Gaito, 412 A.2d at 571. 

Further, to the extent Powell argues he was improperly denied credit 

for a two-month inpatient rehabilitation program completed in 2016, he is not 

entitled to relief. “Generally, it is within the trial court’s discretion whether to credit 

7 This rule applies unless the parolee is not convicted or receives no new sentence on the 

new charges, in which case the pre-trial custody time must be applied to the parolee’s original 

sentence. See Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 n.6 (Pa. 1980). That is not 

the case here.
9

time spent in an institutionalized rehabilitation and treatment program as time served 

‘in custody.’” Commonwealth v. Fowler, 930 A.2d 586, 596 (Pa. Super. 2007).

8

 

Whether an individual is entitled to credit for time spent in a rehabilitation facility 

outside of the prison setting depends on the nature of the facility. See Medina v. Pa.

Bd. of Prob. & Parole, 120 A.3d 1116, 1119-20 (Pa. Cmwlth. 2015) (collecting 

cases). To be entitled to such a credit for time spent in a rehabilitation facility, a 

parolee maintains the burden “to develop a factual record and persuade the Board 

that the program presented an environment so restrictive that he should get credit for 

the time spent in it, i.e., that the specific characteristics of the program constituted 

restrictions on his liberty that were equivalent to incarceration.” See Medina, 120 

A.3d at 1119 (internal quotation marks and brackets omitted). In reviewing this 

claim, Counsel stated that he could “find no legal or factual basis to argue that the 

claim for [an inpatient rehabilitation time] credit was not waived in the instant 

matter.” Turner/Finley Letter at 7. Given that Powell failed to avail himself of the 

administrative appeal process available to him, as discussed supra, we agree with 

Counsel’s conclusion that Powell waived such a claim.

V. Conclusion

As discussed above, following our independent review of the record 

and applicable law, we agree with Counsel that Powell has waived the claims raised 

in the June 2022 Letter by virtue of failing to raise them before the Board in a timely 

administrative appeal and, further, that the underlying claims lack factual or legal 

merit. Accordingly, we find the instant appeal to be wholly frivolous and affirm the 

Board’s denial of the claims contained in the June 2022 Letter treated as a petition 

8 Although not binding, Superior Court decisions are persuasive authority in this Court. 

Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
10

for administrative review of the March 2022 Board Decision, and grant the 

Application to Withdraw.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Toy N. Powell, :

Petitioner :

:

v. :

:

Pennsylvania Parole Board, : No. 874 C.D. 2022

Respondent :

O R D E R

AND NOW, this 30th day of June, 2023, the June 22, 2022 order of the 

Pennsylvania Parole Board is AFFIRMED. The Application to Withdraw 

Appearance is GRANTED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge