IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Cavanaugh, :

: No. 728 C.D. 2016

Petitioner : Submitted: October 7, 2016

:

v. :

:

Pennsylvania Board of :

Probation and Parole, :

:

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: December 28, 2016

Edward Cavanaugh petitions for review of the Pennsylvania Board of 

Probation and Parole’s (Board) decision denying his request for administrative 

review and affirming the Board’s modified decision recommitting him as a 

convicted parole violator to concurrently serve an unexpired term of 10 months, 4 

days, and changing his parole violation max date to July 25, 2015. Appointed 

counsel, Kent D. Watkins, Esq. (Counsel), has filed an application to withdraw as 

counsel, asserting that Cavanaugh’s petition for review is meritless. We grant 

Counsel’s application and affirm the Board’s decision.

On December 12, 2011, the Bradford County Court of Common Pleas 

sentenced Cavanaugh to a 1- to 4-year term of imprisonment based on his 

conviction for driving under the influence (DUI) at the highest blood alcohol 
2

content (BAC) level. The sentence had a minimum expiration date of June 29, 

2012, and a maximum expiration date of June 29, 2015. Certified Record (C.R.) at 

7. On October 18, 2012, Cavanaugh was released on parole. Id.

On June 27, 2013, the Pennsylvania State Police arrested Cavanaugh 

for DUI; DUI at the highest BAC level; public drunkenness; driving while his 

registration and license were suspended; and possessing an alcoholic beverage in a 

motor vehicle. On February 7, 2014, bail was set on the new charges; however, on 

March 5, 2014, Cavanaugh’s bail was changed and he was released on unsecured 

bond. C.R. at 37, 97. On September 23, 2014, Cavanaugh pleaded guilty in the 

Luzerne County Court of Common Pleas to the DUI, DUI at the highest BAC 

level, and driving while his license was suspended charges; he was sentenced to a 

1- to 2-year concurrent term of imprisonment for the DUI conviction and a 

concurrent 90-day sentence for his driving under suspension conviction. Id. at 109.

The Board issued a detainer when the new charges were filed on June 

27, 2013. C.R. at 11. On September 29, 2013, a revocation hearing was conducted 

on Cavanaugh’s purported violation of the technical conditions of his parole. Id. at 

60-90. By decision mailed on November 20, 2013, the Board revoked 

Cavanaugh’s parole and ordered his recommitment based on the admitted technical 

violations. Id. at 91-93. By decision mailed on February 6, 2015, the Board 

modified its November 2013 decision, and recommitted him as a convicted parole 

violator to serve his unexpired term of 11 months, 28 days, granting him credit for 

the time that he was on parole.1 Id. at 122-123. By decision mailed December 15, 

 

1

Section 6138(a)(2.1) of the Prisons and Parole Code states, in relevant part, that “[t]he 

board may, in its discretion, award credit to a parolee recommitted under paragraph (2) for the 

time spent at liberty on parole . . . .” 61 Pa. C.S. §6138(a)(2.1).
3

2015, the Board amended its February 2015 decision by changing his unexpired 

term to 10 months, 4 days, and by changing his parole violation max date to July 

25, 2015. Id. at 12.

On January 18, 2016, Cavanaugh mailed to the Board an 

administrative appeal and a petition for administrative review challenging the 

Board’s credit to his sentence because it did not comply with the judge’s date of 

release. C.R. at 128. By decision mailed April 18, 2016, the Board denied the 

petition and affirmed its decision stating, in relevant part:

Despite Mr. Cavanaugh’s recommitment as a 

convicted parole violator, the Board chose to award him 

credit for time spent at liberty on parole. 61 Pa. C.S. 

§6138(a)(2.1). However, the decision to grant your client 

credit for time at liberty on parole does not mean that he 

is entitled to all credit on his original sentence. The 

Board gave Mr. Cavanaugh credit on his original 

sentence for the period he was at liberty on parole from 

October 18, 2012 to June 27, 2013, when the Board 

detained him for parole violations. Your client had 732 

days remaining on his sentence at the time the Board 

detained him (from 06/27/2013 to 06/29/2015 = 732 

days).

The Board gave your client 427 days of credit on 

his original sentence for the periods he was held solely 

on the Board detainer from June 27, 2013 to February 7, 

2014 (225 days) and from March 5, 2014 to September 

23, 2014 (202 days). Gaito v. Pennsylvania Board of 

Probation and Parole, 412 A.2d 568 (Pa. 1980). 

Conversely, the Board did not give Mr. Cavanaugh credit 

for the time he was incarcerated from February 7, 2014 to 

March 5, 2014 because he was held on both the Board 

detainer and the new criminal charges during that time. 

As such, credit for that time must apply to his new 

sentence. Id. Subtracting the 427 days of credit he 

received from the 732 days he had remaining left 305 

days to serve.
4

The Prisons and Parole Code provides that 

convicted parole violators who are paroled from an SCI 

and then receive a new sentence to be served in an SCI 

must serve the original sentence first. 61 Pa. C.S. 

§6138(a)(5). Because the Board had already 

recommitted your client as a technical parole violator, he 

became available to re-start his original sentence when 

the court sentenced him for the new convictions on 

September 23, 2014. Adding the 305 days he had 

remaining to this availability date yielded a new max date 

of July 25, 201[5].

Id. at 133-134.2

Cavanaugh then filed the instant petition for review of the Board’s 

decision alleging that the Board failed to give him credit for all of the time served 

exclusively under its detainer.

3

 Thereafter, Counsel filed an application to 

withdraw and a no-merit letter contending that the appeal is meritless.

When court-appointed counsel concludes that a petitioner’s appeal is 

meritless, counsel may be permitted to withdraw if counsel: (1) notifies the 

petitioner of the request to withdraw; (2) furnishes the petitioner with a copy of an 

Anders4brief or a no-merit letter satisfying the requirements of Turner;

5

and (3) 

 

2 By decision dated April 12, 2016, the Board granted Cavanaugh parole from his new 

DUI sentence on or after June 21, 2016, and calculated the maximum parole date for that 

sentence to be June 21, 2017. C.R. at 135-137. That Board decision regarding the service of 

Cavanaugh’s new sentence is not at issue in the instant appeal. Nevertheless, the fact that 

Cavanaugh has completed serving his original sentence, or that the Board issued a subsequent 

decision paroling him on his new sentence and setting a new maximum date for that sentence, 

does not render the instant appeal moot because the Board’s credit on his original sentence could 

affect the service of his new sentence.

3 Our scope of review is limited to determining whether necessary findings of fact are 

supported by substantial evidence, whether an error of law was committed, or whether 

constitutional rights were violated. McCloud v. Pennsylvania Board of Probation and Parole, 

834 A.2d 1210, 1212 n.6 (Pa. Cmwlth. 2003).

4

Anders v. California, 386 U.S. 738 (1967).
5

advises the petitioner of his right to retain new counsel or submit a brief on his 

own behalf. Encarnacion v. Pennsylvania Board of Probation and Parole, 990 

A.2d 123, 125 (Pa. Cmwlth. 2010). A no-merit letter must set forth: (1) the nature 

and extent of counsel’s review of the case; (2) the issues the petitioner wishes to 

raise on appeal; and (3) counsel’s analysis as to why the appeal has no merit. Id. at 

126. Once these requirements are met, this Court will independently review the 

petitioner’s appeal to determine whether it is meritless. Id.

Here, Counsel mailed Cavanaugh a letter informing him of Counsel’s 

request to withdraw. Counsel included a no-merit letter, which detailed the nature 

and extent of Counsel’s review of Cavanaugh’s case, set forth the issue raised in 

the petition for review, and explained why Counsel concluded that Cavanaugh’s 

appeal is meritless. The no-merit letter also advised Cavanaugh of his right to 

retain substitute counsel or file a pro se brief. Because Counsel has satisfied the 

technical requirements of Turner, this Court will now independently review the 

merits of Cavanaugh’s appeal.

Cavanaugh argues that the Board’s decision should be reversed 

because the Board failed to give him credit for all of the time that he served due to 

its detainer. We disagree.

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). A parolee recommitted as a convicted parole violator

 

(continued...)

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
6

must serve the remainder of the term that 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 exercises its discretion to award credit. 61 Pa. C.S. §6138(a)(2), (2.1). 

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

sentence prior to commencement of the new sentence. 61 Pa. C.S. §6138(a)(5)(i). 

When a parole violator satisfies bail requirements prior to sentencing 

on new charges and is incarcerated solely by reason of the Board’s detainer, the 

period of incarceration prior to sentencing is credited to the convicted parole 

violator’s original sentence. Gaito, 412 A.2d at 571. However, when bail is not 

posted, time incarcerated on both the new criminal charges and the Board’s 

detainer must apply to the new sentence. Id. 

As outlined above, the Board gave Cavanaugh credit on his original 

sentence for the periods that he was held solely on the Board’s detainer from June 

27, 2013, the date the detainer was filed, to February 7, 2014, the day that bail was 

set on the new charges, and from March 5, 2014, the date that he was released on 

unsecured bond on the new charges, to September 23, 2014, the date of sentencing

on the new charges. Contrary to his claim in the petition for review, the Board did 

not err in granting credit for all of the time that Cavanaugh served solely as a result 

of the Board’s detainer. Gaito, 412 A.2d at 571.

Accordingly, we grant Counsel’s application to withdraw and affirm 

the Board’s decision.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Cavanaugh, :

: No. 728 C.D. 2016

Petitioner : 

:

v. :

:

Pennsylvania Board of :

Probation and Parole, :

:

Respondent :

O R D E R

AND NOW, this 28th day of December, 2016, the Application to 

Withdraw as Counsel filed by Kent D. Watkins, Esq. is GRANTED, and the 

decision of the Pennsylvania Board of Probation and Parole dated April 18, 2016, 

is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge