IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert S. Riede, :

Petitioner :

:

v. : No. 337 C.D. 2015

: Submitted: February 19, 2016

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: August 8, 2016

Before this Court are (i) the petition of Robert S. Riede for review of 

the January 21, 2015 determination of the Pennsylvania Board of Probation and 

Parole (Board), which affirmed its recommitment of Riede as a convicted parole 

violator to serve 18 months of backtime1and the recalculation of his parole 

violation maximum date, and (ii) the petition of Christopher E. Farrell, Esq., a 

public defender in Wayne County (Counsel), for leave to withdraw as counsel for 

Riede on the grounds that the petition for review is frivolous. Because we conclude 

that Counsel has not satisfied the technical requirements for withdrawal as 

 

1

“‘Backtime’ is the portion of a judicially imposed sentence that a parole violator must serve as 

a consequence of violating parole before he is eligible for re-parole.” Palmer v. Pennsylvania 

Board of Probation and Parole, 134 A.3d 160, 162 n.1 (Pa. Cmwlth. 2016).
2

appointed counsel for a parolee contesting a revocation and recommitment 

decision, we deny the petition for leave to withdraw without prejudice and do not 

reach the merits of the petition for review.

On May 7, 2007, Riede was released on parole from the State 

Correctional Institution (SCI) at Chester; at the time of his release, Riede had a 

parole violation maximum date of September 18, 2013 based on an 8 to 16 year 

sentence imposed by the Court of Common Pleas of Monroe County in 1997. 

(Certified Record (C.R.) at 12.) On June 9, 2011, federal authorities arrested Riede 

in North Carolina based upon an arrest warrant issued in the Middle District of 

Pennsylvania. (C.R. at 35, 37.) The Board lodged a warrant to detain Riede on 

June 10, 2011; this detainer was canceled on September 18, 2013, Riede’s original 

maximum date. (C.R. at 20.) Riede was extradited from North Carolina to 

Pennsylvania where he was held in Lackawanna County Prison on a federal 

detainer without posting bail. (C.R. at 64.)

On March 4, 2014, Riede pleaded guilty to one count of conspiracy to 

distribute 5 kilograms or more of a substance containing a detectable amount of 

cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 846. (C.R. 

at 38-46.) The Board relodged its detainer against Riede on June 20, 2014 based 

on the new conviction. (C.R. at 22.) On June 23, 2014, Riede was sentenced in 

the United States District Court for the Middle District of Pennsylvania to time 

served with a three-year period of supervised release. (C.R. at 57-63.) 

On June 24, 2014, the Board served Riede with notice of charges and 

its intent to hold a parole revocation hearing while Riede was still in Lackawanna 

County Prison, and on that date, Riede signed a waiver and admission form in 

which he waived his revocation hearing and admitted his guilty plea to the federal 
3

charge. (C.R. at 23, 33.) On June 25, 2014, Riede was returned to the Board’s 

custody at SCI Waymart. (C.R. at 66.) 

On September 19, 2014, the Board issued a decision recommitting 

Riede as a convicted parole violator to serve 18 months backtime based upon a 

conviction of conspiracy to commit controlled substances, setting a parole 

eligibility date of December 23, 2015, and recalculating Riede’s parole violation 

maximum date as November 4, 2020. (C.R. at 69.) In making this recalculation of 

the maximum date, the Board determined that Riede owed 2,326 days when he was 

paroled on May 7, 2007 with an original maximum date of September 18, 2013, 

and that Riede became available to serve his original sentence on June 23, 2014. 

(C.R. at 67.) 

Riede filed a timely petition for administrative review, and the Board 

affirmed its earlier decision on January 21, 2015.2 (C.R. at 72-73, 80-81.) Riede, 

acting pro se, filed a petition for review of the Board’s denial of his petition for 

administrative review with this Court. Riede also filed an application to proceed in 

forma pauperis; by a March 30, 2015 per curiam order, this Court granted Riede

permission to proceed in forma pauperis and appointed the Wayne County Public 

Defender to represent Riede in this matter. On July 15, 2015, Counsel filed a

petition for leave to withdraw and an Anders brief3in support of the petition. 

Riede thereafter filed a pro se brief, and the Board filed a brief in response.

 

2

Following his initial petition for administrative review, Riede submitted three other items of 

correspondence to the Board after his initial appeal that contained additional legal argument; the 

Board did not address this correspondence pursuant to its regulations providing that second or 

subsequent requests for administrative relief will not be received. (C.R. at 71, 74-80, 82-91); see 

also 37 Pa. Code § 73.1(b)(4). 

3

See Anders v. California, 386 U.S. 738 (1967).
4

When evaluating a petition for leave to withdraw as appointed counsel 

for a parolee challenging a revocation decision, we first determine whether counsel 

has satisfied the technical requirements of: (i) notifying the inmate of his request 

to withdraw; (ii) furnishing the inmate with a copy of the Anders brief or a nomerit letter satisfying the requirements of Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988);

4

and (iii) advising the inmate of his right to retain new counsel or raise 

any new points he might deem worthy of consideration by submitting a brief on his 

own behalf. Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758, 

760 (Pa. Cmwlth. 1985); see also Hughes v. Pennsylvania Board of Probation and 

Parole, 977 A.2d 19, 22-25 (Pa. Cmwlth. 2009) (en banc); Wesley v. Pennsylvania 

Board of Probation and Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992). Only 

once appointed counsel has fully complied with the technical requirements for 

withdrawal will the court independently evaluate the proceedings before the Board 

to determine whether the appeal is frivolous or without merit. Jefferson v. 

 

4 Where there is a constitutional right to counsel, court-appointed counsel seeking to withdraw 

must submit an Anders brief that (i) provides a summary of the procedural history and facts, with 

citations to the record; (ii) refers to anything in the record that counsel believes arguably 

supports the appeal; (iii) sets forth counsel’s conclusion that the appeal is frivolous; and (iv) 

states counsel’s reasons for concluding that the appeal is frivolous. Commonwealth v. Santiago, 

978 A.2d 349, 361 (Pa. 2009). Alternatively, where the parolee has only a statutory, rather than 

a constitutional, right to counsel, appointed counsel may submit a Turner no-merit letter instead 

of an Anders brief; a no-merit letter must set forth: (i) the nature and extent of counsel’s review 

of the case; (ii) each issue that the inmate wishes to raise on appeal; and (iii) counsel’s 

explanation of why each of those issues is meritless. Turner, 544 A.2d at 928; Seilhamer v.

Pennsylvania Board of Probation and Parole, 996 A.2d 40, 43 & n.4 (Pa. Cmwlth. 2010); 

Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009) 

(en banc). Only a statutory right to counsel exists here and therefore only a no-merit letter is 

required. Seilhamer, 996 A.2d at 42 n.4; Hughes, 977 A.2d at 25-26. This Court, however, will 

not deny a petition for leave to withdraw where an Anders brief is filed but only a no-merit letter 

will suffice but instead will simply apply the lack of merit standard where there is no 

constitutional right to counsel and a no-merit letter would suffice. Hughes, 977 A.2d at 26 n.4.
5

Pennsylvania Board of Probation and Parole, 705 A.2d 513, 514 (Pa. Cmwlth. 

1998); Hont v. Pennsylvania Board of Probation and Parole, 680 A.2d 47, 48 (Pa.

Cmwlth. 1996) (en banc); Wesley, 614 A.2d at 356.

We conclude that Counsel has not satisfied the technical requirements 

for withdrawal and therefore we do not reach the merits of Riede’s petition for 

review. There is no indication in the record that Counsel served either his petition 

for leave to withdraw as counsel or his Anders brief, which was attached as an 

exhibit to the petition, on Riede. Indeed, the certificate of service submitted by 

Counsel demonstrates that service was made to counsel for the Board and to the 

Attorney General, but there is no mention of service to Riede. Furthermore, Riede 

avers in his pro se brief that after being informed that Counsel had been appointed 

to represent him, he has not received any subsequent communication from 

Counsel. (Petitioner’s Br. at 6.) While the July 20, 2015 per curiam order issued 

by this Court advised that Riede may obtain substitute counsel at his own expense 

or file a brief on his own behalf, Counsel served that order on Riede as the order

directed him to do, and Riede subsequently filed a pro se brief, Counsel’s service 

of this order alone did not discharge the requirements for withdrawal from 

representation. 

We also conclude that Counsel did not meet the technical

requirements for withdrawal from representation because his Anders brief did not 

sufficiently analyze the issues Riede seeks to raise on appeal or address all the 

issues that Riede intended to argue. In an Anders brief or a no-merit letter 

submitted in support of a petition for leave to withdraw, counsel must not only 

state his conclusion that the appeal is frivolous or without merit but must also 

conduct an analysis explaining why each issue the petitioner seeks to raise on 
6

appeal is frivolous or without merit. Commonwealth v. Santiago, 978 A.2d 349, 

361 (Pa. 2009); Turner, 544 A.2d at 928-29; Seilhamer v. Pennsylvania Board of 

Probation and Parole, 996 A.2d 40, 43-44 & n.5 (Pa. Cmwlth. 2010); Jefferson, 

705 A.2d at 514. This Court will also deny a petition for leave to withdraw as 

counsel where counsel fails to analyze why the petitioner’s issues lack merit5or 

where counsel fails to address an issue that a petitioner sought to raise on appeal.6 

In addressing the challenge raised by Riede to the calculation of his parole 

violation maximum date, Counsel in his Anders brief has merely summarily stated 

that the Board has the legal authority to change Riede’s maximum date and Riede’s 

appeal is without merit with no analysis to support Counsel’s conclusion that the 

Board’s calculation of his maximum date was correct. Furthermore, Counsel does 

not address the assertion by Riede in his petition for review that he was entitled to 

double credit for the time applied to his federal sentence and does not mention or 

attempt to distinguish either of the two cases that Riede cited in his petition for 

 

5

See, e.g., Seilhamer, 996 A.2d at 44 (holding that appointed counsel had not satisfied the 

technical requirements of a no-merit letter because there was no explanation or analysis 

supporting counsel’s conclusion that the issue that the petitioner sought to raise on appeal was

without merit); Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245, 1249 (Pa. 

Cmwlth. 2003) (holding that counsel’s failure to provide sufficient legal analysis to support the 

conclusion in his Anders brief that the Board properly denied the petitioner credit for street time 

precluded the Court from undertaking “our own independent evaluation, no matter that even with 

cursory research, we could find that the appeal was frivolous”); Jefferson, 705 A.2d at 514

(holding that counsel’s “cursory explanation, with no analysis to support his conclusions [that the 

petitioner’s parole violation maximum date was calculated correctly] nor any citation to the 

record” did not “meet the requirement that the ‘no merit letter’ provide ‘analysis’ of [the 

petitioner]’s allegedly frivolous claims”). 

6

See, e.g., Hont, 680 A.2d at 48 (denying counsel’s petition for review because counsel 

neglected to analyze two of the three issues the petitioner sought to raise on appeal); Wesley, 614 

A.2d at 356-57 (holding counsel’s Anders brief was facially defective because it failed to address 

two of the four issues the petitioner raised in his petition for review).
7

review.7 Counsel therefore has failed to meet the requirements for withdrawal and 

this Court will not address the merits of Riede’s appeal. 

Accordingly, we deny Counsel’s petition for leave to withdraw, with 

leave to refile.

______________________________________

JAMES GARDNER COLINS, Senior Judge

 

7

See Yates v. Pennsylvania Board of Probation and Parole, 48 A.3d 496 (Pa. Cmwlth. 2012);

Davidson v. Pennsylvania Board of Probation and Parole, 722 A.2d 232 (Pa. Cmwlth. 1998). 

Nor does Counsel address the applicability of Section 6138(a)(5.1) of the Prisons and Parole 

Code, 61 Pa. C.S. § 6138(a)(5.1), relating to the order of service of sentences when a parole 

violator is convicted of new federal criminal charges. See Banks v. Pennsylvania Board of 

Probation and Parole, 136 A.3d 1102 (Pa. Cmwlth. 2016). In determining the issues that Riede 

seeks to raise on appeal, Counsel appears to have ignored Riede’s petition for review and instead 

looked only to a memorandum of law that Riede had originally sent to the Board following his 

initial petition for administrative review and then subsequently attached to his Application for 

Leave to Proceed In Forma Pauperis. Even if this memorandum of law is considered the 

operative document for determining what issues Riede seeks to raise on appeal, Counsel did not 

address all of the issues cited by Riede in the memorandum of law, including (i) whether the 

Board’s recommitment of Riede beyond his original judicially imposed sentence maximum date 

unconstitutionally usurps the power of the judiciary; (ii) whether the Board’s recommitment of 

Riede beyond his original maximum date violates the Ex Post Facto clause of the United States 

Constitution; and (iii) whether the Board abused its discretion in recommitting him as a 

convicted parole violator to serve his remaining term without giving him any credit for time 

spent at liberty on parole. See 61 Pa. C.S. § 6138(a)(2.1); Pittman v. Pennsylvania Board of 

Probation and Parole, 131 A.3d 604 (Pa. Cmwlth.) (en banc), petition for allowance of appeal 

granted, ___ A.3d ___ (Pa., No. 90 MAL 2016, filed May 23, 2016). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert S. Riede, :

Petitioner :

:

v. : No. 337 C.D. 2015

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

AND NOW, this 8

th day of August, 2016, the petition for leave to 

withdraw as counsel filed by Christopher E. Farrell, Esq., (Counsel) in the abovecaptioned matter is hereby DENIED without prejudice. Counsel is granted leave to 

refile the petition for leave to withdraw as counsel within thirty (30) days from the 

date of this Order with a supporting brief in accordance with Anders v. California, 

386 U.S. 738 (1967), or a no-merit letter. Counsel is further directed to file a 

certificate of service demonstrating service of a copy of such re-filed petition for 

leave to withdraw and Anders brief or no-merit letter on Petitioner Robert S. Riede. 

If Counsel concludes, upon reconsideration, that the above-captioned appeal is not 

frivolous, Counsel shall submit a brief on the merits of the appeal within thirty (30) 

days of the date of this Order. Consideration of the merits of the petition for 

review is deferred until Counsel files a new petition for leave to withdraw or a 

brief on the merits of the appeal.

______________________________________

JAMES GARDNER COLINS, Senior Judge