IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harry T. Murray, :

Petitioner :

:

v. : No. 2380 C.D. 2014

: Submitted: November 13, 2015

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: December 23, 2015

This case returns to us after we denied, without prejudice, Tina M. 

Fryling’s (Attorney Fryling) petition to withdraw as court-appointed counsel for 

Harry T. Murray (Murray).1 Murray petitions for review of an order of the 

Pennsylvania Board of Probation and Parole (Board) that recommitted him to serve 

his unexpired term of one month and two days as a technical parole violator and 18 

months’ backtime as a convicted parole violator, concurrently. Attorney Fryling 

renews her petition to withdraw as counsel on the ground that Murray’s appeal is 

without merit. For the reasons that follow, we grant Attorney Fryling’s amended 

petition to withdraw as counsel, and we affirm the Board’s order.

 

1

See Murray v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 2380 C.D. 2014, filed July 

2, 2015), 2015 WL 5511502 (unreported).
2

I. Background

In 2008, Murray pled guilty to terroristic threats with the intent to 

terrorize another, and he was sentenced to a term of one to five years in prison. 

Certified Record (C.R.) at 1. His original maximum sentence date was May 19, 

2013. Id.

On February 17, 2011, the Board released Murray on parole, with 

conditions. Id. at 10-16. On April 17, 2013, the Board declared Murray delinquent 

and issued a warrant to commit and detain him for technical parole violations for 

the use and possession of drugs and alcohol. Id. at 21, 30, 33. On that same date, 

police arrested and charged Murray with multiple counts: (1) possession with 

intent to deliver (cocaine), (2) possession with intent to deliver (marijuana), (3) 

possession of a controlled substance (cocaine), (4) possession of a controlled 

substance (marijuana), and (5) possession of drug paraphernalia. Id. at 33, 49-50. 

Murray admitted he violated two conditions of his parole by using

marijuana and possessing alcoholic beverages. Id. at 42. The Board recommitted 

him as a technical parole violator to a state correctional institution to serve his 

unexpired term of one month and two days, pending resolution of his outstanding 

criminal charges. Id. at 42. 

Murray posted bail on the new criminal charges on July 2, 2013. Id.

at 79. Murray pled guilty to count one for possession with intent to deliver

(cocaine). Id. at 47-49. The other counts were nolle prossed. Id. at 48. Based on 

his guilty plea, the Board issued a warrant to commit and detain on May 14, 2014. 
3

Id. at 45. On June 17, 2014, a court of common pleas sentenced Murray to 20 to 

40 months, to run consecutive to his original sentence. Id. at 80. 

Based on the new conviction, the Board recommitted Murray as a 

convicted parole violator to serve 18 months’ backtime concurrent with the 

backtime imposed for the technical parole violations. Id. at 94. The Board 

calculated Murray’s new maximum sentence date as August 13, 2016. Id. at 92.

Murray, representing himself, filed a “request for administrative 

review,” asserting the Board abused its discretion by: violating his due process 

rights; denying him credit for time at liberty on parole; extending his maximum 

sentence date to August 13, 2016; and, recommitting him as a technical and a 

convicted parole violator where the two violations arose from the same act. Id. at 

96-97. The Board denied Murray’s request for relief. Id. at 101.

Murray filed a petition for review with this Court, asserting the same 

grounds for relief. Attorney Fryling filed a petition to withdraw as counsel along 

with a no-merit letter based on her belief that Murray’s appeal is without merit. 

We denied Attorney Fryling’s petition to withdraw without prejudice because she

did not address all the issues raised in the petition for review. We directed her to 

refile her petition to withdraw or file a brief in support of Murray’s petition for 

review. Attorney Fryling filed an amended petition to withdraw, which is now 

before us. 
4

II. Withdrawal of Counsel

Counsel seeking to withdraw must conduct a zealous review of the 

case and submit a no-merit letter to this Court detailing the nature and extent of 

counsel’s diligent review of the case, listing the issues the petitioner wants to have 

reviewed, explaining why and how those issues lack merit, and requesting 

permission to withdraw. Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

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

Zerby v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009). The no-merit letter must 

include “‘substantial reasons for concluding that a petitioner’s arguments are 

meritless.’” Zerby, 964 A.2d at 962 (quoting Jefferson v. Pa. Bd. of Prob. & 

Parole, 705 A.2d 513, 514 (Pa. Cmwlth. 1998)). 

In addition, counsel must send the petitioner: (1) a copy of the nomerit letter; (2) a copy of the petition for leave to withdraw; and, (3) a statement 

that advises the petitioner of the right to retain substitute counsel or proceed pro se

by representing himself. Turner; Hughes. If counsel satisfies these technical 

requirements, this Court must then conduct an independent review of the merits of 

the case. Turner; Hughes. If this Court determines the petitioner’s claims are 

without merit, counsel will be permitted to withdraw and the petitioner will be 

denied relief. Turner; Hughes. 

Here, Attorney Fryling’s no-merit letter satisfies the technical 

requirements of Turner. The letter sets forth the procedural history of the case and 

her review of the record and relevant statutory and case law. She addressed the 

issues Murray raised in the petition for review. Specifically, Attorney Fryling
5

addressed whether the Board erred or violated Murray’s due process rights by 

recommitting him to serve 18 months’ backtime as a convicted parole violator, 

failing to apply proper credit, and recalculating a new maximum sentence date 

after his original maximum date expired. She also addressed whether the Board 

erred or violated Murray’s due process rights by recommitting him as a technical 

parole violator based on the same act constituting a new crime for which he was 

convicted. Counsel’s Turner Ltr., 9/22/15, at 1-2. 

Attorney Fryling explains Murray’s issues lack merit. The Board did 

not err or violate Murray’s due process rights when it recalculated his maximum 

sentence date. The Board followed applicable law in determining Murray forfeited 

time spent on parole when he was convicted of a new crime, which he committed 

while on parole. The Board properly calculated his new maximum sentence date 

by adding time spent at liberty on parole to his original maximum sentence, with 

credit for time served solely on the Board’s detainer. 

In addition, Attorney Fryling asserts the Board did not err or violate 

Murray’s due process rights by recommitting him as a technical parole violator and 

a convicted parole violator. Relying on Rivenbark v. Pennsylvania Board of 

Probation and Parole, 501 A.2d 1110 (Pa. 1985), she explains the imposition of 

both technical and convicted parole violations does not constitute double jeopardy. 

The granting and rescinding of parole are purely administrative functions and do 

not affect an inmate’s actual sentence. Id. A recommitment for parole violations 

is not a second punishment for the original offense triggering due process 

protections. Id. Rather, it is an administrative determination that the parolee 
6

should be reentered to serve all or part of the remainder of his original term based 

on violations of his parole. Id.

Based on her review, Attorney Fryling concludes Murray’s appeal is 

without merit, and she requests permission to withdraw. Attorney Fryling 

provided Murray with a copy of the no-merit letter and her request to withdraw. 

She advised Murray of his right to retain new counsel or proceed by representing 

himself.2 As we are satisfied that counsel discharged her responsibility in 

complying with the technical requirements of a no-merit letter, we conduct an 

independent review to determine whether the issues Murray raised in his petition 

for review lack merit.3

III. Independent Review

A. Recommitment & Recalculation

First, Murray contends the Board erred and violated his due process 

rights by recommitting him for 18 months as a convicted parole violator and 

recalculating his maximum sentence date after his original maximum term expired

on May 19, 2013. According to Murray, at the time of his arrest, only 32 days 

remained on his original sentence. He completed the unexpired term of his 

original sentence while on the Board’s detainer for technical parole violations. The 

Board may only direct a parolee to complete the remainder of this original 

 

2 Murray did not retain new counsel or file a brief in support of his petition for review. 

3 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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§704; Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013), appeal denied, 

87 A.3d 322 (Pa. 2014).
7

maximum term. He contends the Board cannot recommit a parole violator to serve 

more than the balance of his unexpired term or impose a sanction past the 

expiration date. 

Due process is satisfied as long as the statute utilized by the Board 

contains “reasonable standards to guide the prospective conduct.” Commonwealth 

v. Mikulan, 470 A.2d 1339, 1343 (Pa. Cmwlth. 1983) (quoting Commonwealth v. 

Heinbaugh, 354 A.2d 244, 246 (Pa. 1976)). The Prisons and Parole Code provides 

that any parolee who, during the period of parole, commits a crime punishable by 

imprisonment and is convicted or found guilty of that crime may be recommitted 

as a convicted parole violator. 61 Pa. C.S. §6138(a)(1). If the parolee is 

recommitted, he must serve the remainder of the term, which he would have been 

compelled to serve had parole not been granted, with no credit for the time at 

liberty on parole, unless the Board, in its discretion, chooses to award credit. 

61 Pa. C.S. §6138(a)(2), (2.1). “[T]he Board retains jurisdiction to recommit an 

individual as a parole violator after the expiration of the maximum term, so long as 

the crimes that lead to the conviction occurred while the individual is on parole.”

Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 73 (Pa. Cmwlth. 2013),

appeal denied, 87 A.3d 322 (Pa. 2014).

If a new sentence is imposed, the parolee must serve the balance of 

the original sentence prior to commencement of the new term. 

61 Pa. C.S. §6138(a)(5)(i). Time incarcerated shall be credited to a convicted 

parole violator’s original term only when he has satisfied bail requirements for the 
8

new offense and, thus, remains incarcerated solely by reason of the Board’s 

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

Here, Murray’s original maximum sentence date was May 19, 2013. 

C.R. at 92. When the Board released Murray on parole on February 17, 2011, 832 

days remained on his original sentence. Id. On April 17, 2013, while on parole, 

Murray committed a new crime, for which he was convicted. Id. at 47-49, 80. The

commission of a new crime while on parole extended the Board’s jurisdiction to 

recommit Murray after the expiration of his original maximum term. 

61 Pa. C.S. §6138(a)(1); Miskovitch. Based on his conviction, the Board 

recommitted Murray as a convicted parole violator to serve 18 months’ backtime,4

concurrently with the one month and two days imposed for the technical parole 

violations. Id. at 94. 

The Board, acting within its discretion, did not award any credit for 

time at liberty on parole. See 61 Pa. C.S. §6138(a)(2), (2.1). But, because Murray 

posted bail on the new criminal charges, the Board properly credited Murray with 

34 days for time spent solely under its detainer from May 14, 2014, through the 

date of sentencing on June 17, 2014. By adding 788 days (832 days less 34 days) 

to Murray’s custody for return date of June 17, 2014, the Board properly 

recomputed a new maximum sentence date of August 13, 2016. C.R. at 92. Upon 

 

4

The offense of manufacture, delivery or possession with intent to manufacture a 

controlled substance (cocaine) is a felony offense with a statutory maximum of 10 years. 

Sections 13(a)(30) & 13(f)(1.1) of The Controlled Substance, Drug, Device and Cosmetic Act, 

Act of April 14, 1972 P.L. 233, as amended, 35 P.S. §§780-113(a)(30), (f)(1.1); see Certified 

Record (C.R.) at 48. The presumptive range for a felony drug law violation with a statutory 

maximum of 10 years is 18 months to 24 months. 37 Pa. Code §75.2. 
9

review, the Board followed the law and afforded all process due. Murray’s 

arguments to contrary lack merit. 

B. Rivenbark

Next, Murray contends the Board lacked authority to recommit him as 

a technical parole violator and a convicted parole violator based on the same 

conduct. In support of his position, he relies on Rivenbark.

Rivenbark holds that a parolee may not be recommitted as a technical 

violator for an act constituting a new crime for which he was convicted. Id.; 

accord Amaker v. Pa. Bd. of Prob. & Parole, 576 A.2d 50 (Pa. 1990); Threats v. 

Pa. Bd. of Prob. & Parole, 553 A.2d 906, 908 (Pa. 1989). The test is whether the 

technical parole violation is also a criminal offense for which the parolee was 

convicted. Amaker.

To illustrate, in Rivenbark, the Supreme Court determined the Board 

exceeded its authority when it recommitted a parolee as a technical violator for 

possession of a firearm as this was the same act constituting a new crime for which 

he was convicted. Rivenbark. However, in Threats, the Court held the technical 

violation for possession of a weapon, a knife, was not co-extensive with a 

conviction for robbery. Similarly, in Amaker, the Court determined the technical 

violation, consumption of alcohol, was not an independent basis for the criminal 

conviction for DUI, which involved the additional element of operating a motor 

vehicle. 
10

Here, the Board recommitted Murray for violating two conditions of 

his parole based on his admitted use of marijuana (condition #5A) and admitted 

possession of alcohol (condition #7). C.R. at 42. Contrary to Murray’s assertions, 

the same act was not used as a basis for the technical violations and the convicted 

violation. The convicted violation was based on Murray’s conviction for 

possession with intent to deliver a controlled substance (cocaine), which involves

different elements. They are clearly not the same offense. See Amaker; Threats.

Upon review, the Board's recommitment of Murray for both types of violations 

was correct. Murray’s claim with respect to the Rivenbark issue is meritless.

IV. Conclusion

Upon review, we agree with Attorney Fryling that Murray’s claims

regarding the denial of his request for administrative relief are without merit. 

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

counsel, and we affirm the order of the Board denying Murray’s request for 

administrative relief. 

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harry T. Murray, :

Petitioner :

:

v. : No. 2380 C.D. 2014

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

AND NOW, this 23rd day of December, 2015, we GRANT Tina M. 

Fryling’s amended petition to withdraw as counsel, and we AFFIRM the order of 

the Pennsylvania Board of Probation and Parole. 

 

ROBERT SIMPSON, Judge