IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Melvin L. Lovett, :

Petitioner :

:

v. : No. 1153 C.D. 2018

: Submitted: May 31, 2019

Pennsylvania Board :

of Probation and Parole, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: August 21, 2019

Petitioner Melvin L. Lovett (Lovett) petitions for review of a final 

determination of the Pennsylvania Board of Probation and Parole (Board), dated 

July 27, 2018, which denied Lovett’s request for administrative relief, challenging 

the Board’s recalculation of his maximum sentence date as July 26, 2020. Lovett’s 

counsel, David Crowley, Esquire (Counsel), filed a motion to withdraw as counsel. 

Counsel asserted in an initial “no-merit” letter that the issues Lovett raises in his 

petition for review are without merit. Following our review of Counsel’s initial 

no-merit letter, we concluded that the letter was inadequate and denied Counsel’s 

motion for leave to withdraw as counsel. We permitted Counsel to submit an 

amended motion for leave to withdraw as counsel and no-merit letter in response to 
2

our order, and Counsel has done so. We now vacate the Board’s decision, remand 

the matter for issuance of a new decision, and dismiss as moot Counsel’s amended 

motion for leave to withdraw. 

Lovett had been incarcerated at a state correctional institution when the 

Board granted him parole and released him on October 15, 2009. (Certified Record 

(C.R.) at 6.) At the time of his parole, Lovett had a maximum sentence date of 

September 4, 2016. (Id.) On November 5, 2010, the Philadelphia Police Department 

arrested Lovett on new criminal charges, and the Board detained him on these 

charges until the charges were dismissed on June 6, 2012. (Id. at 10-11.) On 

December 19, 2013, the Philadelphia Police Department arrested Lovett and charged 

him with felony possession of a firearm. (Id. at 16.) On that same date, the Board 

issued a detainer against Lovett. (Id. at 17.) Lovett waived his right to attend a 

revocation hearing relating to the pending criminal charges. (Id. at 19-20, 24.) On 

January 22, 2014, the Board recommitted Lovett as a technical parole violator to 

serve 6 months at a state correctional institution. (Id. at 40-44.) At that time, the 

Board recalculated Lovett’s maximum sentence date to December 18, 2016. (Id.) 

Lovett pleaded guilty to the charge of felony possession of a firearm on 

April 10, 2015. (Id. at 66-70.) Lovett, again, waived his right to a revocation 

hearing, and, on October 19, 2015, the Board recommitted Lovett as a convicted 

parole violator to serve 24 months consecutive to his recommitment as a technical 

parole violator. (Id. at 48, 87, 89.) In doing so, the Board recalculated Lovett’s 

maximum sentence date to July 26, 2020. (Id. at 87, 89.) By decision issued on 

May 18, 2017, the Board reparoled Lovett. (Id. at 93-95.) 
3

Lovett then filed a request for administrative relief, challenging the 

Board’s recalculation of his sentence.1 (Id. at 98.) The Board denied Lovett’s 

request for administrative relief, explaining only: “Upon review of your case, it was 

determined there is no indication the Board failed to appropriately recalculate your 

maximum date and your request for relief is denied.” (Id. at 103.) Lovett then filed 

a petition for review in this Court. 

We begin by addressing Counsel’s request to withdraw from his 

representation of Lovett. When no constitutional right to counsel is involved in a 

parole case, an attorney seeking to withdraw from representing a prisoner may file a 

no-merit letter, as compared to an Anders brief.2 In Hughes v. Pennsylvania Board 

 

1 Lovett actually requested administrative relief from the Board’s decision entered on 

October 19, 2015, which recalculated his maximum sentence date as July 26, 2020. The Board 

did not receive Lovett’s administrative appeal until May 24, 2017, more than 30 days after the 

Board’s recorded action. Pursuant to 37 Pa. Code § 73.1(b)(1): “Petitions for administrative 

review shall be received at the Board’s Central Office within 30 days of the mailing date of the 

Board’s determination.” Further, 37 Pa. Code § 73.1(b)(3) provides: “[P]etitions for 

administrative review which are out of time under this part will not be received.” We are unsure 

as to why the Board did not reject the administrative appeal as untimely. Regardless, we will 

review the merits of the appeal. 

2

In Anders v. California, 386 U.S. 738 (1967), the Supreme Court of the United States 

held that in order for a criminal defendant’s counsel to withdraw from representing his client in an 

appeal, the counsel must assert that the case is completely frivolous, as compared to presenting an 

absence of merit. An appeal is completely or “wholly” frivolous when there are no factual or legal 

justifications that support the appeal. Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758, 761 (Pa. 

Cmwlth. 1985). In seeking to withdraw, counsel must submit a petition to withdraw and a brief 

“referring to anything in the record that might arguably support the appeal.” Cmwlth. v. 

Baker, 239 A.2d 201, 202 (Pa. 1968) (quoting Anders, 386 U.S. at 744). The Supreme Court of 

Pennsylvania, however, has held that in matters that are collateral to an underlying criminal 

proceeding, such as parole matters, counsel seeking to withdraw from his representation of a client 

may file a “no-merit” letter that includes information describing the extent and nature of the 

counsel’s review, listing the issues the client wants to raise, and informing the court of the reasons 

why counsel believes the issues have no merit. Cmwlth. v. Turner, 544 A.2d 927, 928-29 

(Pa. 1988). 
4

of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009) (en banc), this Court held 

that a constitutional right to counsel in a parole matter arises only when the 

prisoner’s case includes:

[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 difficult to develop or present.

Hughes, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). 

The record in this matter contains no suggestion by Lovett that he did not commit

the crimes for which he received a new criminal conviction, nor does Lovett suggest 

any reasons constituting justification or mitigation for his new criminal conviction. 

Thus, Lovett only has a statutory right to counsel under Section 6(a)(10) of the Public 

Defender Act.3

In order to satisfy the procedural requirements associated with no-merit 

letters, counsel must: (1) notify the parolee that he has submitted to the Court a 

request to withdraw; (2) provide the parolee with a copy of counsel’s no-merit letter; 

and (3) advise the parolee that he has the right to obtain new counsel and to submit 

to the Court a brief of his own, raising any arguments that he may believe are 

meritorious.4 Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 33 

(Pa. Cmwlth. 2006). In seeking to withdraw, this Court has consistently required an 

attorney to include the following descriptive information in a no-merit letter: (1) the 

 

3 Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).

4 Counsel served Lovett with his petition to withdraw and his amended no-merit letter. In 

a letter addressed to Lovett, Counsel advised Lovett of his right to retain counsel and to file a brief 

on his own behalf. Thus, Counsel has complied with these requirements. 
5

nature and extent of counsel’s review of the case; (2) the issues the parolee wants to 

raise; and (3) the analysis counsel used in reaching his conclusion that the issues are 

meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). Consequently, 

before making an independent review of the merits of the appeal to determine 

whether Lovett’s appeal has no merit, we must first evaluate Counsel’s amended 

no-merit letter to determine whether it complies with the requirements for 

withdrawal applications. 

In his request for administrative relief before the Board, Lovett 

challenged the Board’s authority to recalculate his judicially imposed sentence, 

alleging that the Board’s recalculation of Lovett’s maximum sentence date to extend 

it beyond its original date: (1) violates the separation of powers doctrine; (2) violates 

his right to procedural due process; and (3) eviscerates the judicial discretion 

provided to the courts under Section 9721(a) of the Sentencing Code, 42 Pa. C.S. 

§ 9721(a). Lovett also alleges that the Board’s recalculation is improper because 

Section 6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138(a)(2), 

is in direct conflict with Section 6138(a)(5) of the Code, 61 Pa. C.S. § 6138(a)(5).5 

 

5 Section 6138(a) of the Code sets forth provisions pertaining to violation of terms of parole 

by a convicted parole violator. Section 6138(a)(2) of the Code provides: 

If the parolee’s recommitment is so ordered, the parolee shall be reentered 

to serve the remainder of the term which the parolee would have been compelled 

to serve had the parole not been granted and, except as provided under paragraph 

(2.1), shall be given no credit for the time at liberty on parole.

Section 6138(a)(5) of the Code provides: 

If a new sentence is imposed on the parolee, the service of the balance of 

the term originally imposed by a Pennsylvania court shall precede the 

commencement of the new term imposed in the following cases:
6

In the petition for review filed with this Court, Lovett raises the following 

issues: (1) the Board improperly declined to credit his original sentence; and (2) the 

Board did not articulate contemporaneous reasons for refusing to award credit. 

Counsel’s amended no-merit letter identifies all of Lovett’s arguments and includes 

an adequate analysis of the merits of each issue raised. We, therefore, will proceed 

to consider whether Counsel is correct in asserting that Lovett’s appeal has no merit. 

Section 507 of the Administrative Agency Law, 2 Pa. C.S. § 507, 

provides: “All adjudications of a Commonwealth agency shall be in writing, shall 

contain findings and the reasons for the adjudication, and shall be served upon all 

parties or their counsel personally, or by email.” (Emphasis added.) Based upon the 

record before this Court, we must conclude that the Board’s decision does not meet 

the requirements of Section 507, as it does not explain the reasons for the Board’s 

determination that it properly calculated Lovett’s maximum sentence date. The 

Court, therefore, is unable to engage in effective appellate review.6

Accordingly, we vacate the Board’s decision and remand the matter to 

the Board for the issuance of a decision that sets forth the basis for its determination 

 

(i) If a person is paroled from a State correctional institution and the new 

sentence imposed on the person is to be served in the State correctional 

institution.

(ii) If a person is paroled from a county prison and the new sentence 

imposed upon him is to be served in the same county prison.

(iii) In all other cases, the service of the new term for the latter crime shall 

precede commencement of the balance of the term originally imposed.

6 This analysis is consistent with our memorandum opinion in Brown v. Pennsylvania 

Board of Probation and Parole (Pa. Cmwlth., No. 710 C.D. 2018, filed January 25, 2019). 

Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code 

§ 69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may be cited 

“for its persuasive value, but not as binding precedent.” 
7

that the Board properly calculated Lovett’s maximum sentence date, and we dismiss 

as moot Counsel’s amended petition for leave to withdraw as counsel.

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Melvin L. Lovett, :

Petitioner :

:

v. : No. 1153 C.D. 2018

:

Pennsylvania Board :

of Probation and Parole, :

Respondent :

O R D E R

AND NOW, this 21st day of August, 2019, the order of the 

Pennsylvania Board of Probation and Parole (Board) is VACATED, and the matter 

is REMANDED to the Board for the issuance of a new decision. The motion to 

withdraw as counsel filed by David Crowley, Esquire, is DISMISSED as moot.

Jurisdiction relinquished.

P. KEVIN BROBSON, Judge