IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Xavier Little

, : Petitioner :

:

v. :

: Pennsylvania Board of : Probation and Parole

, : No. 1140 C.D. 2017 Respondent : Submitt ed: March 2 , 201 8

BEFORE: HONORABLE P. KEVIN BROBSON

, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER

, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: June 18, 2018

Xavier Little (Little) petitions this Court for review of the Pennsylvania

Board of Probation and P arole’s (Board) July 1 8 , 2017 order denying his request for

administrative relief. Little is represented in this matter by Kent D. Watkins, Esquire

(Counsel), who has filed a n Application to Withdraw as Counsel (Application). After

review, we deny Counse l’s Application.

Little is an inmate at the State Correctional Institution at Mahanoy (SCI

Mahanoy )

. On January 5, 2011, Little was sentenced to 2 year s and 7 month s to 10

year s of imprisonment for criminal conspiracy and robbery of a motor vehicle. At

that time, his maximum sentence release date was October 11, 2019. Thereafter, he

was paroled, recommitted and reparoled. 1

1 During that time, Little’s supervision was transferred to Georgia, and he was charged with

additional offenses.2 By January 4, 2016 decision (mailed January 7, 2016) , the Board

recommitted Little as a technical parole violator ( TPV ) to ser ve 9 months for multiple

technical parole violations. Notwithstanding, t he Board declared , in pertinent part:

Y OU ARE REPAROLED AUT OMATICALLY WITHOUT F URTHER

ACTION OF THE B OARD ON 07/12/2016 (2 ND

. . . TPV

RECOMMITMENT ) PROVIDED YOU DO NOT 1) COMMIT A

DI SCIPLINARY INFRACTIO N INVOLVING ASSAULTI VE

BEHAVIOR

, SEXUAL ASSAULT

, A WEAPON OR CONTROL LED

SUBSTANCE ; 2) SPEN D MORE THAN 90 DAYS IN SEGREGATED

HOUSING DUE TO ONE O R MORE DISCIPLINARY INFRACTIONS ; 3) REFUSE PROGRAMMING OR A WORK ASSIGNMENT

.

P AROLE RELEASE SUBJECT TO DETAINERS

.

C ertified Record (C .R. ) at 109. However, b y April 22, 2016 decision (mailed April

26, 2016), the Board deleted ( i.e. , revoked) the automatic reparole portion of its

January 4, 2016 decision, “due to [Little’s] recent misconduct.” C. R. at 115.

On April 28, 2016 , Little submitted an Administrative Remedies Form

challenging the Board’s decision , stating:

I have received 60 days for disobeying an order and 30 days for another disobeying an order and 30 days for presence in

an unauthor ized area[,] and they are concurrent for misconduct #B867785[.] So total I have exactly 90 days DC time and I did not commit any of the listed infractions on my green sheet and I don’t have more than 90 days in segregated housing. Nor did I refuse any pr ogramming or work assignment.

C.R. at 117.

On July 18, 2017 , the Board denied Little’s request for administrative

relief , stating in pertinent part:

While in a state correctional institution, [Little] incurred

misconducts. The institution provided [Lit tle] with misconduct hearings, which resulted in multiple misconducts and a total of 110 days in segregated housing.3 [Section 6138(d)(5) of t] he Prisons and Parole Code [(Parole Code), 61 Pa. C.S. § 6138(d)(5) ,] provides that automatic reparole does not ap ply to [TPVs] who commit disciplinary infractions resultant in more than 90 days in segregated housing.

. . . Because [ Little ] incurred qualifying misconducts under the statute, the Board acted within its authority by rescinding automatic reparole and

lis ting [Little] for reparole review. Moreover, the Board acted within its discretion by taking this action without conducting an additional evidentiary hearing because [Little] was already afforded due process to challenge the

misconduct at issue in the hea ring held at the state

correctional institution. There is no reason for the Board to

re

- litigate those facts.

C.R. at 123. Little appeal ed to this Court. 2 Counsel subsequently filed his

Application and a Turner letter. 3

This Court has held that i n order to withdraw, “counsel . . . must provide

a ‘no

- merit’ letter which details ‘the nature and extent of [counsel’s] review and

list[s] each issue the petitioner wished to have raised, with counsel’s explanation of

why those issues are meritless.’” Ze rby v. Shanon , 964 A.2d 956, 961 (Pa. Cmwlth.

2009) (quoting Commonwealth v. Turner , 544 A.2d 927, 928 (Pa. 1988)). “[C]ounsel

must fully comply with the procedures outlined in Turner to ensure that each of the

2 “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 constitutio nal rights have been violated.” Fisher v. Pa. Bd. of Prob. &

Parole

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

3 [P] er [ Commonwealth v. ] Turner

, [ 544 A.2d 927 ( Pa. 1988)

, ] Epps [ v.

P ennsylvania B oar

d of Prob ation and Parole, 565 A.2d 214 ( Pa.

Cmwlth. 19 89) ] , a nd Frankhouser [ v. Pennsylvania Board of

Probation and Parole

, 598 A.2d 607 ( Pa. Cmwlth. 1991) ]

, counsel

seeking to withdraw from representation of a petitioner seeking

review of a determinati on of the Board must provide a ‘ no

- merit ’

letter which de tails ‘ the nat ure 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. ’ Turner

, . . . 544 A.2d at 928

.
Zerby v. Shanon

, 964 A.2d 956, 961 (Pa. Cmwl th. 2009).4

petitioner’s claims has been considered and that counsel has [] substantive reason[s]

for concluding that those claims are meritless.” Hont v. Pa. Bd. of Prob. & Parole

,
680 A.2d 47, 48 (Pa. Cmwlth. 1996). Counsel is also required to “notify the parolee

of his request to withdraw, furnish the paro lee with . . . a no

- merit letter satisfying the

requirements of Turner, and inform the parolee of his right to retain new counsel or

submit a brief on his own behalf.” Reavis v. Pa. Bd. of Prob. & Parole , 909 A.2d 28,

33 (Pa. Cmwlth. 2006). This Court mu st then “conduct its own independent review

of the petition to withdraw and must concur in counsel’s assessment before [it] may

grant counsel leave to withdraw.” Hont , 680 A.2d at 48.

In his Turner letter to this Court, Counsel explained:

The [Board] den ied [ Little ] automatic reparole on the basis
[ of] multiple institutional misconducts resulting in a total of 110 days in segregated housing in violation of [Section 6138(d)(5) of the Parole Code

, ] which states, in essence,

that [Little] shall be automatica lly reparoled without further action by the [B] oard unless he has spent more th [a] n 90 days in segregated housing due to one or more disciplinary

infractions. 61 Pa. C.S. [] § 6138(d).

Although [Little] was not automatically paroled pursuant to [Section 61 38 of the Parole Code,] [Counsel] has learned [that Little] ha s [sic] subsequently reparoled to a detainer

from the stat [e] of Georgia and has waived extradition and is proceeding in the Court of Common Pleas of Schuylkill County on December 6, 2017, rend [ er] ing the issue of automatic reparole moot.

The certified record provides no evidence the [Board’s]
actions constitute an error of law, violate [Little’s]

c onstitutional rights or are not supported by substantial

evidence. The record does not reveal any other issues that may be raised on [ Little ’ s ] behalf.

In light of my exhaustive examination of the certified record, and research of applicable case law, I have

concluded that [ Little ’ s ] appeal from the revocation of his parole has no basis in law or in fa ct and is, therefore,

frivolous. In view of my conclusion that [ Little ’ s ] appeal5 has no merit, I am filing a petition with the Honorable Court for leave to withdraw my appearance as [ Little ’ s ] appellate

counsel. By copy of this letter, I am advising [ Lit tle ] of his right to retain substitute counsel, if he so desires, and of his right to raise any points which he may deem worthy of merit in a pro se brief filed with this Honorable Court.

Counsel Turner Letter at 5

- 6.

Counsel’ s Turner l etter contains a scant procedural history of Little’s

case and explains Little ’s challenges to the Board’s revocation of his automatic

reparole

, i.e. , Little did not commit disciplinary infraction s warranting such action.

The Turner l etter also includes Counsel’ s review of the record and relevant statutory

law. Counsel served Little with a copy of the no

- merit letter and his Application, and

notified Little that he may either obtain substitute counsel or file a brief on his own

behal f. 4 However, Counsel does not provide sufficient explanation for why Little’s

issue on appeal is without merit.

D espite that Little’s appeal is based purely upon his claim that he only

spent 90 days in segregated housing, Counsel merely repeated the Board’s conclusion

that Little spent 110 days in segregated housing and, thus, the Board was authorized

to revoke his automatic reparole. Counsel offered no explanation and did not

reference any source or documentation to support the 110

- day calculation. Further

,
Counsel’s recitation of the pr ocedural history of Little’s Pennsylvania and Georgia

criminal case s does not adequately describe how the Georgia detainer makes Little’ s

automatic reparole moot.

Consequently , Counsel did not address Little’s issue with sufficient

detail to provide a su bstantive reason for concluding that his claim was meritless.

Hont . Without that information, this Court cannot “concur in [C]ounsel’s

assessment.” Id. at 48. As a result, Counsel’s letter failed to fully comply with the

Turner requirements. See i d.

4 Little did not obtain substitute counsel or file a brief.6 Accordingly, Counsel’s Application is denied without prejudice.

Counsel has 30 days to either file an amended application and Turner letter that

adequately addresses the issue raised in Little’s request for administrative relief and

Counsel’s mootness de termination, or to submit a brief on the merits.

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

Xavier Little, : Petitioner :

:

v. :

: Pennsylvania Board of : Proba tion and Parole, : No. 1140 C.D. 2017 Respondent :

O R D E R

AND NOW, this 18 th day of June , 201 8 , the Application to Withdraw as

Counsel filed by Kent D. Watkins , Esquire (Counsel) is DENIED. Counsel shall

either file a renewed application to withdraw and an amended no

- merit letter , or

submit a brief on the merits within 30 days from the date of this Order

.

___________________________ ANNE E. COVEY, Judge