IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luis Daniel Gonzalez

, : Petitioner :

:

v. :

: Pennsylvania Board of Probation : and Parole

, : No. 310 C.D. 2016 Respondent : Submitted : July 1

, 2016

BEFORE: HONORABLE ROBERT SIMPS ON, Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE BONNIE BRIGANCE LEADBETTER , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: September 23, 2016

Luis Daniel Gonzalez (Gonzalez) petitions this Court for review of the

P ennsylvania Board of Probation and Parole’s (Board) February 11, 2016 order
denying his request for administrative relief. Gonzalez ’s counsel, David Crowley

, Esquire (Counsel), has filed a n application to withdraw his representation of

Gonzalez ( Applicati on) . After review, we grant the Application and affirm the

Board’s order.

Gonzalez is an inmate at the State Correctional Institution (SCI) at Camp

Hill

. On July 22 , 2013, the Board paroled Gonzalez to the York Community

Corrections Center from a 2 1⁄2 to 7

- year sentence for simple assault, assault by
prisoner and the manufacture, sale, delivery and/or possession of drugs with the intent

to deliver (Original Sentence). At that time, his maximum sentence release date was

June 24, 2017

. As a condition of hi s parole, Gonzalez agreed :

If you are convicted of a crime committed while on parole/reparole, the Board has the authority, after an2 appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were serving when paroled/ reparoled, with no credit for time at liberty on parole.

C ertified R ecord (C.R.) at 9

. Gonzalez did not raise any objections to the above

quoted parole condition

.

On April 2 , 2015

, Gonzalez was arrested and charged with possession of

a controlled substanc e (heroin) , and possession with the intent to deliver a controlled

substance (heroin) (New Charges)

. See C.R. at 18

- 21. On April 3, 2015, the Board

issued a warrant to commit and detain Gonzalez pending disposition of the N ew

C harges. See C.R. at 14. T he trial court set bail in the amount of $5 0 ,000 .00 , but

Gonzalez did not post bail

. See C.R. at 23

- 24. Based upon a negotiated guilty plea
reached August 13, 2015, Gonzalez was sentenced to 21⁄2 to 5 years of incarceration

(New Sentence) , but was given c redit for the 134 days he served pending disposition

of the N ew C harges. See C.R. at 37

- 38.

O n August 19, 201 5 , t he Board served Gonzalez with a notice of charges

and notice of the Board’ s intent to hold a parole revocation hearing. See C.R. at 3 0.
That day, Gonzalez admitted to the New Charges, and waived his right to counsel and
a revocation hearing. See C.R. at 31, 41

- 42. On September 18, 2015

, Board panel

member Craig McKay accepted Hearing Examiner Gary Holland’s S eptember 3

, 2015 recomme ndation and provided the second signature needed to recommit

Gonzalez as a convicted parole violator to serve 24 months backtime without credit

for time he spent at liberty on parole. See C.R. at 43

- 44, 48. By October 2 , 2015

decision (issued October 14, 2015)

, the Board formally recommitted Gonzalez to

serve 24 months backtime

, and recalculated his maximum sentence release date as August 21, 2019. See C.R. at 52

- 53.

On November 10, 2016, based solely upon his interview with Gonzalez

as Counsel did n ot have the Board’s record at that time

, Counsel timely sought3

administrative relief on Gonzalez’s behalf challenging the Board’s sentence credit
calculation and its authority to extend Gonzalez’s judicially

- imposed sentence. See

C.R. at 55

- 56. By Februa ry 11, 2016 decision, the Board denied Gonzalez

administrative relief

. On February 29, 2016, Counsel appealed from the Board’s

decision to this Court on Gonzalez’s behalf

. 1

Before reviewing whether the Board erred in recalculating Gonzalez’s

maximum s entence release date, this Court must consider Counsel’s Application.

Counsel received the Board’s certified record in this matter on March 2 4 , 201 6. After
reviewing the record and his interview notes, Counsel determined that Gonzalez’s
appeal is without merit.

In order to withdraw representation, counsel must review the case
zealously, and:

submit a ‘no

- merit’ letter to the trial court, or brief [ 2 ] on appeal to this Court, detailing the nature and extent of

1 “Our scope of review of the Board’s decision denying administrative relief is limited to determining whether necessary findings of fact are supported by substantial evidence, an error of law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. & Parole

, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlt h. 2013).

2 A significant portion of Counsel’s b rief is dedicated to his explanation of why a brief was necessary in this case. Formerly , “ to protect an indigent criminal defendant’s right to effective
assistance of counsel under the Sixth Amendment of th e United States Constitution and to ensure that the attorney seeking to withdraw is not forced to argue against his client ,” counsel were required to file a petition and a brief pursuant to Anders v. California, 386 U.S. 738 (1967) “present[ing] the review ing court with information that will aid it in determining whether the defendant’s appeal is frivolous.” Hughes v. Pa. Bd. of Prob. & Parole , 977 A.2d 19, 22 (Pa. Cmwlth. 2009) ( en banc ). In the Anders brief, counsel were to “ set [] forth issues that migh t arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof. ” Commonwealth v. Wrecks , 931 A.2d 717, 720 (Pa. Super. 2007)

.

In Commonwealth v. Turner, . . . 544 A.2d 927 ([Pa.] 1988), the Pennsylva nia Supreme Court adopted a less stringent standard for the withdrawal of appointed counsel from cases in which the right to counsel does not derive from the United States Constitution, such as collateral appeals. The Court held that, rather than an Ander s brief, counsel may instead provide a ‘no

- merit’ letter which details ‘the4 counsel’s diligent review of the case, listin g the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit , and requesting permission to withdraw

. Zerby v. Shanon , 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (emphasis added).

Here, Counsel’s Application states: “[Counsel] has notified [Gonzalez]
of [Counsel’s] request to withdraw, furnished [Gonzalez] with a copy of the [b]rief in
support of [the Application], and advised [Gonzalez] of his right to retain new
counsel or raise any points that might deem worthy of consideration as required . . . .”
Counsel’s App. ¶ 4. Counsel’s b rief is entitled “Brief for Applicant,” and specifies
therein that it is his “Brief in Support of Application to Withdraw Appearance

[(Brief)] .” In the Brief’s conclusion, Counsel again p rovides: “A copy of this Brief
has been served upon [Gonzalez] with instructions that any additional reasons in
support of his Petition [for Review] be submitted to the Commonwealth Court of
Pennsylvania.” Counsel Br

. at 22.

We take notice that the Ce rtifications of Service filed with the
Application and the Brief reflect that Counsel served them upon Gonzalez by first

class mail on April 26, 2016. On April 28, 2016, this Court ordered that the
Application shall be considered with the merits of Gonzal ez’s appeal, and stated that

Gonzalez could obtain new counsel. Counsel was directed therein to serve the April

nature and extent of [the attorney’s] review and list[s] each issue the petitioner wished to have raised, with counsel’s explanation of why those issues are meritless,’ at which po int the court must conduct its own review of whether the claim is meritless.
Hughes , 977 A.2d at 24

- 25 (footnote omitted) (quoting Turner , 544 A.2d at 928) . The Hughes Court recognized that, “[i]n recent years, this Court has shown little concern for whe ther it receives

an Anders brief or a no

- merit letter in a parole revocation matter. This Court has recently drawn little distinction between whether the case must be ‘frivolous’ or ‘meritless’ before counsel may withdraw.” Hughes , 977 A.2d at 25 (citati on omitted). In maximum sentence release date cases, “[w]here an Anders brief is filed when a no

- merit letter would suffice, the Anders brief must at least contain the same information that is required to be included in a no

- merit letter.” Seilhamer v. P a. Bd. of Prob. & Parole , 996 A.2d 40, 42

- 43 (Pa. Cmwlth. 2010).5

28, 2016 order upon Gonzalez within 14 days. On May 2, 2016 , Counsel filed an

Affidavit of Service wherein he swore that he served the Court’s April 28, 2016 order
upon Gonzalez by first

- class mail on May 2, 2016

. 3

In Counsel’s Brief

, despite that Gonzalez’s sole issue on appeal is
whether the Board properly extended his maximum sentence release date, Counsel
also referenced “Other Issues Appa rent in Counsel’s Review of the Record

, ” and
clarified that the Board erred by stating that Gonzalez was ineligible for reparole until
September 18, 2017, when Gonzalez is eligible for reparole as of October 3, 2016. 4

Counsel Br

. at 21. It is clear that Counsel carefully examined the issues herein , in
particular, whether the Board properly extended Gonzalez’s maximum sentence

release date to August 21, 2019, both in terms of whether the Board was
constitutionally authorized to extend it, and whether the d ate was properly calculated.
Counsel concluded that he “is unable to raise or argue any available issue which

would entitle [ Gonzalez ] to relief.” Counsel Br. at 2 2 . Accordingly, we hold that
Counsel’s Brief “set[] forth issues that might arguably suppo rt the appeal along with
any other issues necessary for the effective appellate presentation thereof.”

Commonwealth v. Wrecks , 931 A.2d 717, 720 (Pa. Super. 2007). Finding that

Counsel’s Brief satisfied the Anders/ Commonwealth v. Turner, 544 A.2d 927 (Pa

.

3 Gonzalez has not responded to the Application, nor has substitute counsel entered an

appearance on Gonzalez’s behalf.

4 Counsel is correct. The Board’s October 2 , 2015 decision (issued O ctober 14, 2015) states: “ N OT ELIGIBLE FOR REPA ROLE UNTIL [S EPTEMBER 18, 2017] .” C.R. at 52. However, because Gonzalez has the right to apply for reparole one year from the date of the Board’s decision,
Gonzalez wa s eligible for reparole consideration on or after October 3, 2016. Section 6139(a)(3) of the Prisons and Parole Code, 61 Pa.C.S. § 6139(a)(3) (“the [B]oard shall not be required to consider nor dispose of an application by an inmate . . . where a parole decision has been issued by the [B]oard o n that case within one year of the date of the current application for parole.”). Moreover,

s ince Counsel stated that Gonzalez received his reparole application on or after October 3, 2016, see Counsel Br. at 21, the issue is moot.6

1988)

, requirements, we undertake our own review of the merits of Gonzalez ’s
appeal.

Gonzalez argue s that the Board was not authorized to extend his
judicially

- imposed sentence. Section 6138 of the Prisons and Parole Code (Parole
Code) governs the Boar d’s maximum sentence release date calculations. Section
6138(a) of the Parole Code states, in pertinent part:

Convicted violators.

-- (1) A parolee under the jurisdiction of the [B] oard released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee

. . . pleads guilty

. .

. at any time thereafter in a court of record, may at the discretion of the [B] oard be recommitted as a parole violator.

(2) If the pa rolee ’ 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

. . . . 61 Pa.C.S. § 6138 (a) (text emphasis added)

.

We acknowledge that “[ t ] he Board can only require that a parolee serve
the remaining balance of his unexpired term since the Board does not have the power
to alter a judicially

- imposed sentence.” Yates v. Pa. Bd. of Prob. & Parole , 48 A.3d
496, 502 (Pa. Cmwlth. 2012) ( quoting Savage v. Pa. Bd. of Prob. & Parole , 761 A.2d
643, 645 (Pa. Cmwlth. 2000) (citation omitted)). However, “when a parolee is
recommitted due to criminal conviction, his maximum sentence date may be extended

to account for all street

- time, [ 5 ] regardl ess of good or delinquent standing.” Richards
v. Pa. Bd. of Prob. & Parole , 20 A.3d 596, 599 (Pa. Cmwlth. 2011). Moreover, the
Pennsylvania Supreme Court has specifically held that the Board’s authority to

5 “‘Street time’ is a t erm for the period of time a parolee spends at liberty on parole.” Dorsey v. Pa. Bd. of Prob. & Parole , 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).7

extend maximum term expiration dates under such circumstances does not usurp the
courts’ sentencing functions, or violate a parolee’s due process rights. Gaito v. Pa.
Bd. of Prob. & Parole , 412 A.2d 568 (Pa. 1980). 6 Accordingly, the Board did not
extend Gonzalez’s judicially

- imposed sentence , but rath er, properly extended his

maximum sent ence date to account for Gonzale z’s street

- time

.

In response to Counsel’s request for administrative relief, the Board

stated:

The Board recalculated your client ’ s max date to August 21,

2019 based on his recommitm ent as a convicted parole violator. The decision to recommit [] Gonzalez as a convicted parole violator gave the Board statutory authority to recalculate his sentence to reflect that he received no credit for the period he was at liberty on parole. 61 Pa . C.S. § 6138(a)(2). The Board advised [] Gonzalez of this potential penalty on the parole conditions he signed on July 19, 2013. Additionally, the ability to challenge the recalculation decision after it is imposed satisfies his due process rights. The refore, the Board ’ s recalculation of your client ’ s max date is constitutional. Young v. Commonwealth , 409 A.2d 843 (Pa. 1979).

6 Gaito was based upon Section 21.1 of what was commonly known as the Parole Act, Act of August 6, 1941, P.L. 861, as amended , added by Section 5 of the Act of August 24, 1951, P.L. 1401, formerly 61 P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Section 21.1(a) of the Parole Act similarly stated:

Any parolee under the jurisdiction of the [ Board] released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which . . . he pleads guilty . . . in a court of record, may, at the discretion of the [B]oard, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credi t for the time at liberty on parole

. . . .
(Emphasis added).8

C.R. at 60. Finding no error in the Board’s response, we agree with Counsel and hold
that Gonzalez’s argument that the Board im properly extended his sentence has no

merit.

Gonzalez also claims that the Board improperly calculated his new
parole violation maximum date by failing to credit his Original Sentence with all of
the confinement time to which he was entitled. We disag ree.

We acknowledge that, under Section 6138(a)(5)(i) of the Parole Code, a
parolee who is paroled from a state institution and is sentenced on new charges to a
state institution must serve the balance of the original sentence before serving the

new se ntence. 61 Pa.C.S. § 6138(a)(5). However, it is well

- established that

i f a defendant is being held in custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new criminal charges, the time which he spent in custody shall be credited against his original sentence. If a defendant, however, remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credite d to his new sentence.

Gaito, 412 A.2d at 571 (bold emphasis added). Further

, this Court recently held :

Section 6138(a)(4) of the [Parole] Code provides: ‘The period of time for which a parole violator is required to serve shall be computed from and begi n on the date that the parole violator is taken into custody to be returned to the institution as a parole violator.’ 61 Pa.C.S. § 6138(a)(4). . .

. ‘[ O ] nce a parolee is sentenced on a new criminal offense, the period of time between arrest and sentencin g, when bail is not satisfied, must be applied to the new sentence, and not to the original sentence. ’ Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 352 (Pa. Cmwlth

. 2007).

Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 201 6)
(emphasis added). Moreover , “a parole violator’s new maximum date is calculated9

from the date on which the Board obtained the second signature needed to recommit
him as a [convicted parole violator].” Id.

In this case, the Board stated:

[T] he Boa rd properly recalculated the max [imum] date. The Board paroled [] Gonzalez from his sentence imposed to be served at a state correctional institution ( ‘ SCI ’) on July 22, 2013 with a max [imum] date of June 24, 2017. This means he had a total of 1433 days remaining on his sentence (from [July 22, 2014] to [June 24, 2017] = 1433 days). As previously stated, the Board did not grant your client credit for time at liberty on parole [,] so he still had 1433 days remaining.

On April 3, 2015, authorities detained your client for new criminal charges

. . . . There is no indication that he posted bail from these charges and you do not claim that he posted bail. The Board lodged its detainer against him that same day. [] Gonzalez pled guilty to the new criminal cha rges on August 13, 2015 and the court sentenced him to a new term of imprisonment to be served in an SCI that same day. The Board voted to recommit [] Gonzalez as a parole violator on September 18, 2015.

Based on these facts, the Board did not give your c lient any credit on his [O] riginal [S] entence for the period he was incarcerated from April 3, 2015 to August 13, 2015 because he was held on both the [B] oard [’s] detainer and the new criminal charges during this period. As such, credit for that time must apply to his new sentence when it is calculated. Gaito

. . . . This means he still had 1433 days to serve on the sentence.

The [ Parole Code ] provides that convicted parole violators who are paroled from an [ ] SCI and receive a new sentence to be served i n a n SCI must serve the original sentence first. 61 Pa. C.S. § 6138(a)(5). However, that provision does not take effect until the parolee is recommitted as a convicted parole violator. Thus, your client did not become available to commence service of his original sentence until September 18, 2015 because that is when the Board voted to recommit him as a parole violator. Campbell v. P [ a

. ] B [ d

. ] of Prob [

. ] [ & ] Parole , 409 A.2d 980 (Pa. [Cmwlth

. ]10 1980). Credit for the time he was confined from August 13, 20 15 to September 18, 2015 should also be applied to [] Gonzalez ’ s new sentence when it is calculated. Adding the 1433 days he had remaining on the sentence to this availability date yields a new maximum sentence date of August 21, 2 019.

Accordingly, the ap peal panel finds no ground to grant administrative relief and AFFIRMS the Board decision mailed October 14, 2015.

C.R. at 60

- 6 1

. Finding no error in the Board’s response, we agree with Counsel and
hold that Gonzalez’s argument that the Board improperly ca lculated his maximum

sentence release date has no merit.

Based upon the foregoing, Counsel’s Application is granted and the

Board’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luis Daniel Gonzalez, : Petitioner :

:

v. :

: Pennsylvania Board of Probation : and Parole, : No. 310 C.D. 2016 Respondent :

O R D E R

AND NOW, this 23 rd day of September , 201 6

, David Crowley, Esquire’s
Applicati on to Withdraw Appearance is granted, and the Pennsylvania Board of
Probation and Parole’s February 11, 2016 order is affirmed.

___________________________ ANNE E. COVEY, Judge