IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Parker, :

Petitioner :

: No. 1514 C.D. 2018
v. : : Submitted: April 26, 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 McCULLOUGH FILED: June 13, 2019

Christopher Parker (Petitioner) petition s for review of the October 17,
2018 order of the Pennsylvania Board of Probation and Parole (Board), which denied
his request for admin istrative relief from the Board’ s December 13, 2016 order recalculating his maximum sentence date. Petitioner’s counsel, David C rowley, Esquire (C ounsel), o f the Public Defender’ s Office of Centre County has filed an Application to Withdraw Appearance (Application) on the basis that there are no grounds for appeal and the petition lacks merit

. We grant Counsel’ s A pplication and
affirm the Board’ s order.

On February 26, 1976, a tr ia l c ourt sentenced Petitioner to 2 to 20 years’ incarceration following his conviction of third

- degree murder. At that point, Petitioner’s original maximum sentence date was December 19, 1995. The Board2

released Petitioner on paro le on December 19, 1977 ; thereafter, Petitioner, apparently before the expiration of his maximum sentence, engaged in criminal conduct that violated the conditions of his parole and resulted in a conviction

. See infra note 6. On July 18, 2001, n early 24 years after the Board paroled Petitioner, the Board
recommitted him as both a technical parole violator (TPV) and a convicted parole violator (CPV). Under former section 21.1(a) of the Parole Act , 1 Petitioner automatically f

orfeited credit for all the yea rs that he spent at liberty on parole, and t he
Board extended his maximum sentence date from December 19, 1995, to April 2 7,
2018. (Certified Record (C.R.) at 1, 48 .)

O n January 31, 2002, the Board reparoled Petitioner. Approximately 11 years later, i n 2013, the police arrested Petitioner and he was charged with various
sexual offenses involving a minor female

. On March 28, 2013, the Board issued a warrant to commit and detain Petitioner pending the disposition of the criminal charges.
After Petitioner entered a plea of no contest to the crimes of corruption of a minor and
involun tary deviate sexual intercourse (IDSI) , a court of common pleas sentenced him on February 2, 2016, to 23 months’ incarceration at a county facility, without the possibility of parole, and a consecutive term of probation

. (C.R. at 6, 9

- 10, 21, 24, 26, 30.) Subsequently, Pet itioner signed a document waiving his rights to counsel and a revocation hearing, and the Board recommitted him as a CPV to serve 60 months’
backtime. Petitioner then filed a request for administrative r elief, which the Board
denied on December 13, 2016. In the hearing report, the Board did not award Petitioner

1 Act of August 6, 1941, P.L. 861, as amended , added by the Act of August 24, 1951, P.L. 1401, formerly 61 P.S. §331.21a(a). The Parole Act was repealed by the Act of August 11, 2009, P.L. 147, when the statute was codified into t he Prisons and Parole Code (Parole Code), 61 Pa.C.S. §§101

- 6309.3

any credit for time served at liberty on parole under section 6138(a)(2.1) of the Prisons

a nd Parole Code (Parole Code)

. 2 Because Petitioner entered a plea to IDSI , a crime that required registration as a sexual offender, Petition er was not eligible to receive
credit and the Board lacked the statutory authority to grant it. Nonetheless, the Bo ard
noted in the hearing report that it considered Petitioner to be “ a threat t o the safety of the community” and “ [n] ot amenable to parole supervision .” ( C.R. at 35, 39 , 47, 49,
58

- 59, 74

- 75.)

On October 17, 2018 , the Board issued a decision affirming its earlier decision to recommit Petitioner as a CPV and impose 60 months’ backtime. In this decision, the Board modified Petitioner’s parole eligibility date to February 27, 2020,
and extended his maximum sentence date from April 2 7, 2018, to M ay 24, 2031. (C.R. at 78.)
Petitioner then filed an administrative remedies form . The form contains two sections directing a petitioner to “ Check the Reason(s) for Appeal and Explain ”
and “ Check the Reason(s) for Relief and Explain

. ” (C. R. at 79) (emp hasis in original )

. The form also states that “[t]he request shall set forth specifically the factual and legal bases for the allegations.” Id. In the first section, pertaining to the Board’s revocation decision, Petitioner checked the boxes for “Insuff icient Evidence” and “Recommitment

2 61 Pa.C.S. §6138 (a)(2.1). Unlike former section 21.1(a) of the Parole Act , section 6138(a)(2.1) of the Parole Code provides the Board with discretion to award credit for days spent at liberty on parole when recommitting a CPV, so long as the CPV did not commit one of th e statutorily enumerated crimes . More specifically, the Board is dep rived of discretion to grant cr edit when “[t]he crime committed during the period of parole is a crime

. . . requiring registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders)

. ” 61 Pa.C.S. § 6138(a)(2.1)(i)

. In situations where the Board maintains i ts authority and discretion to award credit, “the Board must provide a contemporaneous statement explaining its reason for denying a CPV credit for time spent at liberty on parole” in order “to honor the basic notions of due process” and effectuate the int ent of the General Assembly in enacting section 6138(a)(2.1). Pittman v. Pennsylvania Board of Probation and Parole , 159 A.3d 466, 475 (Pa. 2017).4

Challenge.” Id. In the second section, pertaining to the Board’s sentence calculations , Petitioner checked the boxes for “Sentence Credit Challenge” and “Reparole Eligibility
Date.” Id. However, in the spaces provided on the form for a petitioner to exp lain the
basis and nature of the claims , Petitioner did not complete it in the manner that the form dictates. Instead, Petitioner used the spaces to express his remorse and request
lenien cy, stating, among other comments, the following: “Please, [I] know I’ve made a grave mistake,” “I’m sorry for all the things that occurred,” and “I’m asking for leniency on the [time] I’m about to do.” Id. Petitioner made similar statements in the

page s that he attached to the form. (C.R. at 81

- 84.)

On October 17, 2018 , the Board issued a decision denying Petitioner’s request for administrative relief and reasoned as follows:

The Board regulation authorizing administrative appe als/petitions for a dministrative review stat es that appeals/petitions must “ present with accuracy, brevity, clearness and specificity whatever is essential to a ready and adequate understanding of the factual and legal points requiring consideration.” 3 7 Pa. Code §73 .1. Yo ur request for relief does not indicate that the Board made any actual evidentiary, procedural, or calculation errors in revoking your parole. The only thing you request from the Board is a general plea for leniency. A general plea for leniency does not qualify as a request for relief under the regulation. Therefore, your request for relief must be dismissed for failure to present adequate factual and legal points for consideration against the Board. (C.R. at 86.) On November 19, 2018, Counsel file d a petition for review with this
Court , 3 asserting only that the Board erred because it “[f]ailed to credit [his] original

3 Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by5

sentence with all the time to which he is entitled.” (Petition for Review, ¶6.) After reviewing the record in this matter, on February 21, 2019, Counsel filed the Application
and a “no

- merit” letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), contending that the appeal is meritless.

Where, as here, counsel concludes that a petitioner’s appeal is meritless, counsel may be permitted to withdraw from representation if counsel (1) notifies the petitioner of the request to withdraw; (2) furnishes the petitioner with a copy of a no

merit letter satisfying the requirements of Turner ; and (3) advises the petitioner of his right to retain new counsel or submit a brief on his own behalf. Miskovitch v. Pennsylvania Board of Probation and Parole , 77 A.3d 66, 69 (Pa. Cmwlth. 2013).
When counsel seeks to withdraw under Turner , our Supreme Court has held that counsel may fulfill his/her responsibilities by providing a no

- merit letter that details the nature and extent of the attorney’s review, identifies each issue the petitioner wishes to raise, and explains why counsel concludes those issues are meritless. 544 A.2d at 928. Once counsel has fully complied with the technical requirements for withdrawal, the Court will independently review the merits of the petitioner’s claims. Miskovitch , 77 A.3d at 70.

Here, t he record reflects that, in his Turner no

- merit letter, Counsel informed Petitioner of Counsel’s request to withdraw, provided Petitioner with a copy
of the Turner letter that details Counsel’s review of the issues and the reasons why Counsel concluded those issues are meritless, and advised Petitioner of his r ight to retain new counsel or raise any new points he might deem worthy of consideration. Because Counsel has satisfied the procedural requirements for withdrawal, the Cour t

substantial evidence. McCloud v. Pennsylvania Board of Probation and Parole , 834 A.2d 1210, 1212 n.6 (Pa. Cmwlth. 2003).6

will independently review the matt er to ascertain whether there are any issues th at possess arguable merit

.

I n his Turner no

- merit letter , Counsel addresses the following four general
issues: “Improper credit to [Petitioner’s] original sentence,” “ Improper Calculation of [Petitioner’s] max and re

- parole dates, ” “Insufficient Evidence,” and “Ex cessiveness of the Recommitment.” ( Turner Letter, at page 4.)

However, i ssues that are not properly raised before the Board in an administrative appeal are waived for purpos es of appellate review by this C ourt. McCask ill v. Pennsylvania Board of Probation and Parole , 631 A.2d 1092, 1094

- 95 (Pa. Cmwlth. 1993). T he Board’ s regulatio n at 37 Pa. Code §73.1 require s that issues must be “ present[ed] with accuracy, brev ity, clearness and specificity.” 37 Pa. Code § 73.1(a)(3 ), (b)(2). The failure to do so “ will be a sufficient reason for denying the appeal. ” 37 Pa. Code §73.1(a)(3)

. T he fact that a petitioner proceeded without counsel before the Board does not excuse him from raising and preserving issues. Reavis v.
Penns ylvania Board of Probation and Parole , 909 A.2d 28, 33

- 34 (Pa. Cmwlth. 2006).

Here, Petitioner simply checked the boxes on the administrative remedies form and did not provide any statements of facts or legal basis to support his claims or alert the Board of the particular action (s) or decision (s) that he was challenging as improper. U nder well

- settled case law applying 37 Pa. Code §73.1, Petitioner has failed to preserve any issues for our review and any purported issue that could have
been raise d is waived

. See McCaffrey v. Pennsylvania Board of Probation and Parole , 537 A.2d 78, 79 (Pa. Cmwlth. 1988) (providing that a dismissa l pursuant to 37 Pa. Code §73.1 was appropriate because “ [i]t is clear that the quoted portion of the regulat ion requires a prisoner seeking administrative relief to make his claims with at
least so me small degree of specificity . . . indicating what Board action or inaction7

constituted error”); see also White v. Pennsylvania Board of Probation and Parole , 833
A. 2d 819, 822 (Pa. Cmwlth. 2003) ; McCaskill , 631 A.2d at 1094

- 95

. 4 , 5

Notwithstanding waiver , Counsel engaged in a thorough review of Petitioner’s parole history and the record in this matter and commendably addressed issues that he perceived were implicated and related to the four categories listed in the
boxes that Petitioner checked in h is administrative remedies form. U ltimately , Counsel
determined that such issues lacked merit. Upon our independent evalu ation, we agree
with Counsel

.

Initial ly , as noted by Counsel, Petitioner cannot at the present time challenge any action taken by the Board in its Jul y 18, 2001 parole revocation and
recommitment order because the time for doing so has long passed. See McCaskill ,

4 We also cite two unreported decisions from this C ourt for their persuasive value in accordance with Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code §69.414. See Headley v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. , No. 2553 C.D. 2015, filed May 2, 2018) (unreported), slip op. at 6 (“ Although H eadley checked the box sta ting ‘Sentence Credit Challenge ’

. . . . [t] here is no reference in the Administrative Appeal or the document Headley attached thereto of the time he spent at the [community corrections ce nter] or incarcerated in West Virginia, let alone a request for credit against his original sentence for those perio ds. Accordingly, these issues are waived for purposes of appellate review by this court. ” ( internal citations omitted); Edwards v. Pennsylv ania Board of Probation and Parole (Pa. Cmwlth., No. 1625 C.D. 2014, filed May 26, 2016) (unreported) , slip op. at 9

- 10 (“ Here, in his administrative appe al before the Board, [p] et itioner checked the box marked ‘ Recommitment Challenge (Time/term given by B oard, automatic rep arole, return to custody, etc.) ’

. . . Notably absent from [p] etitioner’s administrative appeal is any claim that he is entitled to sentence credit for time spent in pre

- sentence confinement awaiting trial and sentencing for his federa l charges. Therefore, because [p] etitioner failed to raise the issue in his administrative appeal, the issue is waived for purposes of this Court’s review. ”).

5 Furthermore, the issues regarding the nature of the evidence supporting the Board’s recommitm ent decision, the length of backtime imposed in connection with that recommitment, and the calculations of P etitioner’s parole eligibility and maximum sentence dates were not raised in the petition for review with this Court . Thus, these issues are waived on this basis as well . See Reavis , 909 A.2d at 32 n.2 and 34; Siers v. Pennsylvania Board of Probation and Parole , 725 A.2d 220, 221 (Pa. Cmwlth. 1999).8

631 A.2d at 1095 and n.4 (concluding that when a petitioner appealed the Board’s 1992 decision denying him administrative relief, the petitioner could not challenge the decisions of the Board rendered in 1986 and 1988 because “ any allegations concerning
such determination s would have been untimely and the Board would have been required to dismiss the appea l as it related to those issues ”). In that order, the Board calculated Petitioner’s new maximum sentence date as April 27, 2018, and determined
tha t Pe titioner owed 16 y ears and 3 months on his original sentence. 6 The Board then

re paroled Petitioner on January 31, 2002, and following his convictions, Petitioner completed the 23

- month sentence in a county facility and was available to serve the
ba lance of his o riginal sen tence

— 16 years and 3 months

— on November 23, 2 016.

Concerning Petitioner’s maximum sentence date, the case law states that
Petitioner is entitled to a deduction from the balance of his original sentence in the
amount of one year and nine months . This p eriod represents the time that Petitioner

6 W ith respect to Petitioner’s first instance of parole, w e note that “[i] t is well

- settled law that the Board retains jurisdiction to recommit an individual as a parole violator after the expiration of the maximum term, so long as the crimes that lead to the conviction occurred while the individual is on parol e.” Fumea v. Pennsylvania Board of Probation and Parole , 147 A.3d 610 (Pa. Cmwlth. 2016). Because the Board found in its July 18, 2001 decision that Petitioner owed 16 years and 3 months on his sentence, it may be implied that Petitioner committed a crime prior to the expiration of his 20

- year sent ence. The record, however, is not entirely clear on this point and fails to indicate the precise date on which Petitioner was arrested, the crime he committed, and length of his incarceration, if any.
At any rate, in this appeal from an administrative p roceeding , Petitioner cannot (and Counsel does not) challenge the Board’ s July 18, 2001 order 17 years after it was entered or contest the legality of his detention

. To the extent that Petitioner could possibly have a valid claim that he successfully completed the full term of his sentence prior to his first recommitment, that claim would have to be asserted in a habeas corpus petition in the app ropriate court of common pleas. See Brown v. Pennsylvania Department of Corrections , 81 A. 3d 814, 815 (Pa. 2013) (stating that where a petitioner was “testing the legality of [his] commitment and detention,” “ his petition for review sounded in habeas corpus ,” and finding that this Court “ did not possess jurisdiction over such a matter ;” rather, jurisdiction lies “ in the court of record from w hich [the] judgment of sentence originated, specifically, the Philadelph ia County Court of Common Pleas”).9

was released on bail, May 9, 2013, but remained incarcerated solely on the Board’s

warrant , until the time he was sentenced by the court of common pleas , February 2,
2015. See Smith v. Pennsylvania Board of Probation and Parole , 171 A.3d 759, 764

- 65 (Pa. 2017) (“ [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 custo dy shall be credited against his original sentence. ”). The net outcome is that , at the time of his latest recommitment,
Petitioner owed 14 years and 6 months on his original sentence , and w hen this number
is added as an extension to November 23, 2016, Pet itione r’s new maximum sentence
date was May 24, 2031. Otherwise, regarding the Board’s imposition of 60 months’
backtime , when one year and nine months is subtracted from this amount, and the sum is added as an extension to November 23, 2016, Petitio ner’s new parole eligibility date

was February 27, 2020. Therefore, having checked and confirmed the Board’s arithmetic, we agree with Counsel that the Board did not err in calculating Petitioner’s
new maximum sentence date and reparole date

.

Moreover , Petitioner admitted the fact of his conviction s in the form waiving his rights to a revocation hearing and counsel. (C.R. at 30.) This admission, alone, and especially in conjunction with a copy of the court of common pleas’ sentencing order, (C.R. at 40 ), provided the Board with substantial evidence upon
which it could recommit Petitioner as a CPV. See Pitch v. Board of Probation and
Parole , 514 A.2d 638 , 640 (Pa. Cmwlth. 1986 ) (stating that “a parolee’ s admissions to asserted parole violations constitu te substantial evidence upon which to base a parole revocation order”); Anderson v. Pennsylvania Board of Probation and Parole , 497
A.2d 947 , 9 50 (Pa. Cmwlth . 1985) (noting that it was “ permissible to admit unauthenticated copies of state court records to show that a probationer was convicted10

of subsequent criminal offens es during his probationary term”). With respect to the Board’s imposition of 60 months’ backtime for Petitioner’s no contest plea to IDSI and corruption of a minor , Counsel correctly notes that this figure falls within the presumptive range for such convictions. See 37 Pa. Code §75.2 (stating that the presumptive range for IDSI and corruption of a minor is 27 to 40 months and 18 to 24 months, respectively) ; Ward v. Pennsylvania Board of Pr obation and Parole , 538 A.2d 971, 975 (Pa. Cmwlth. 1988) (“ Where there are multiple offenses the Board may treat each offense separately and aggregate the presumptive ranges to arrive at an applicable presumptive range. ”). Therefore, we agree with Counsel that Petitioner cannot successfully challenge the Board’s assessment of backtime as excessive or otherwise illegal

. See Houser v. Pennsylvania Board of Probation and Parole , 675 A.2d 787,
789 (Pa. Cmwlth. 1996) (“ This court will not review the Board’ s exercise of discretion in imposing backtime for parole violations where the violations are supported by substantial evidence and the backtime imposed is within the published presumpti ve ranges for those violations.”).

As a final matter , this Court acknowl edge s Counsel’s statement that Petitioner “is understandably perplexed about ho w he will still be serving a 20

- year
sentenc e 55 years after its imposition, ” (Brief for Petitioner at 8 ) , and we have previously recognize d “ the harsh results that occur when a CPV has served a relatively long and successful period of parole but cannot obtain any street time credit .” Penjuke v. Pennsylvania Board of Probation and Parole , __ A.3d __, __ (Pa. Cmwlth., No. 1304 C.D. 2017, filed February 1, 2019) (en banc), slip op . at 19. Nonetheless, a s a result of legislative mandate, Petitioner automatically forfeited decades of sentencing credit for time spent at liberty on parole , first by virtue of being a CPV under former section 21.1(a) of the Parole Act , and then by being a CPV who committed an11

enumerated crime that divested the Board of discretion to award sentencing credit
under current section 6138(a)(2.1)(i) of the Parole Code.

That said, we are constrained to concur in Counsel’ s observation that

“ [r] easonable minds can differ as to the efficacy of the sentencing and [P]arole [C] ode provisions which compel this result, but there is no legal support for a claim that it is unlawful.” (Brief for Petitioner at 9.) In 1979, o ur Supreme Court held that

a state is not precluded by the Federal Constitution from giving paroled convicts an add ed inducement to ‘go straight’ by retaining the ability to recommit them for crimes they commit while on parole. N o constitutional question is involved in the [] Bo ard’ s failure to give [a parolee] credit for time on parole and its adjustment of the expiration date of his new maximum. Young v. Pennsylvania Board of Probation and Parole , 409 A.2d 843 , 847 (Pa. 1979) (internal citation omitted). The holding in Young has not been undermined and continues to be followed by this Court as binding precedent

. See, e.g. , Lee v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 926 C.D. 2017, filed January 30 , 2018 ) (unreported), slip op. at 4. Therefore, we agree with Counsel that
Petitioner does not have a valid claim regarding the increases of his maximum sentence date for being a CPV.

In sum, Petitioner waived any and all legal issues with respect to the Board’s October 17, 2018 or der ; Counsel’s analysis contains substantial reasons for concluding that Petitioner does not have any basis in law or fact t hat would entitle him to relief; and, upon our independent review, we are unable to locate an issue that possesses arguable merit. Accordingly, we grant Counsel’s Application and affirm the
determination of the Board. See Reavis , 909 A.2d at 34 (granting counsel’s application to withdraw where the petitioner waived all the issues in the petition for review; counsel
conducted a suffic ient review of those issues; and our independent review failed to12

locate a meritorious issue); Roy v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 98 C.D. 2009, filed October 6, 2009) (unreported), slip op. at 4

- 7 (same).

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Parker, :

Petitioner :

: No. 1514 C.D. 2018
v. : : Pennsylvania Board of : Probation and Parole, :

Respondent :

ORDER

AND NOW, this 13 th d ay of June , 201 9 , the Application to Withdraw Appearance filed by David Crowley, Esquire , is GRANTED, and the decision of the Pennsylvania Board of Probation and Parole, dated October 17, 2018 , is
AFFIRMED.

________________________________ PATRICIA A. McCULLOUGH, Judge