IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sherman Nelson, : Petitioner :

:

v. : No. 807 C.D. 2016

: Submitted: November 4, 2016 Pennsylvania Board of Probation : and Parole, : Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K . HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: January 13, 2017

Sherman Nelson ( Nelson ) petitions for review from an order of the

Pennsylvania Board of P robation and Parole (Board) that denied his administrative

appeal of a Board recommitment and recalculation order. Also before us is a

petition to withdraw as counsel filed by Nelson ’s court

- appointed attorney, Kent D.

Watkins , Esquire (Attorney Watkins ), on the ground that Nelson ’s appeal is

without merit. After review , we deny Attorney Watkins’ petition to withdraw as

counsel , without prejudice

.

Nelson initially received a sentence of four to eight years in prison

based on his convictions for robbery and criminal conspiracy. His original

minimum sentence date was September 1, 2011, and his original maximum

sentence date was September 1, 2015.2 In July 2014, the Board paroled Nelson to a community corrections

center. About five months later , the Board issued a warrant to commit and detain

Nelson after his arrest for retail theft.

Nelson was also arrested on a technical parole violation charge

(f ailing to report or leaving district without permission). He subsequently signed a

waiver of vi olation hearing and counsel/ admission form in which he admitted to

the technical parole violation. As a result of his admission , the Board recommitted

Nelson as a technical parole violator to serve six months’ backtime

. I t also issued

a detainer pending disposit ion of the new criminal charge

.

Based on Nelson’s arrest for retail theft, bail was set at $15,000

. Nelson did not post bail. Thereafter, i n August 2015, Nelson pled guilty to retail

theft and received a sentence of 3 to 23 months ’ incarcera tion and thr ee years ’

probation. Nelson’s sentencing order indicated he was paroled immediately as of

Mar ch 14, 2015.

In light of Nelson’s conviction

, the Board charged him as a convicted

parole viol ator. Thereafter

, he signed a waiver of revocation hearing and

counsel/admission form and admitted to the retail theft conviction

. Ultimately , the

Board recommitted Nelson as a convicted parole violator to serve 12 months ’

backtime concurrently to the previously i mposed six

- month term for his technical

violation

. Th e Board’s order also recalculated Nelson’s maximum sentence date as

October 6, 2016.3 Nelson filed an administrative appeal in which he asserted the Board

erred in: (1) failing to afford him credit for the period in which he resided in the

community correc tions center ; (2) failing to recognize he was available to begin

serving his backtime as of March 14, 2015, the date he was granted parole on his

new criminal sentence ; (3) imposing backtime that exceeded the time remaining on

his maximum sentence; and, (4 ) improperly extending his maximum sentence date.

The Board scheduled a hearing on Nelson’s claim for credit for the time he spent in

the community corrections center. Prior to the hearing, ho wever, Nelson executed

a written waive r of this claim for credi t

. Thereafter, the Board denied Nelson’s

administrative appeal

.

Attorney Watkins filed a petition for review to this Court on Nelson ’s

behalf, asserting the Board did not provide Nelson with credit for all time served

exclusively on its warrant. This matter is now before us for disposition.

Counsel seeking to withdraw must conduct a zealous review of the

case and submit a “no

- merit” letter to this Court detailing the nature and extent of

counsel’s diligent review of the case, listing the issues the petitioner wants to have

reviewed, explaining why and how those issues lack merit, and requesting

permission to withdraw. Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988);

Hughes v. Pa. Bd. of Prob. & Parole , 977 A.2d 19 (Pa. Cmwlth. 2009) ( en banc );

Zerby v. Shanon , 964 A.2d 956 (Pa. Cmwlth. 2009). 1

1 In Hughes v. Pen nsylvania Board of Probation & Parole , 977 A.2d 19 (Pa. Cmwlth. 2009) ( en banc ), we held, where there is a constitutional right to counsel, counsel seeking to withdraw from representation of a parolee in an appeal of a Board determination should file a

bri ef as required by Anders v. State of California , 386 U.S. 738 (1967). Relying on Gagnon v. (Footnote continued on next page...)4 In order to withdraw, counsel must satisfy certain procedural

requirements, which include: notifying the parolee of his request to withdraw;

furnishing the parolee with a Turner letter; and, informing the paro lee of his right

to retain new counsel or submit a brief on his own behalf. See Zerby

.

Substantively, counsel’s Turner letter must contain: the nature and

extent of counsel’s review; the issues the parolee wishes to raise; and, counsel’s

analysis in con cluding the parolee’s appeal is meritless. Zerby . If these

(continued...)

Scarpelli , 411 U.S. 778 (1973), we held that a constitutional right to counsel arises where a parolee raises a “colorable claim”:

(i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate , and that the reasons are complex or otherwise difficult to develop or present.

Hughes , 977 A.2d at 24 (quoting Gagnon , 411 U.S. at 790). We further stated such claims would only arise in appeals from determinations revoking parole. Id. Thus, we held “[i]n an appeal from a revocation decision, this Court will apply the test from Gagnon , quoted above, and, unless that test is met, we will only require a no

- merit letter.” Id. at 26 (emphasis in original, footnote omitted). Here, the record contains no suggestion by Nelson that he did not commit the crime for which he received the new criminal conviction or that he did not commit the technical parole violation. Further, Nelson does not set forth substantial reasons that justified or mitigated his

new cr iminal conviction or technical parole violation and that make revocation inappropriate. Indeed, he “knowingly, intelligently, and voluntarily” admitted he committed the crime at issue as well as the technical parole violation, and he waived his right to a parole revocation hearing. Certified Record at 31, 73. Moreover, the issue s Nelson raise s are not complex or difficult to develop. Thus, Nelson does not have a constitutional right to counsel under the Gagnon test; rather, he has a statutory right to c ounsel under Section 6(a)(10) of the Public Defender Act

, Act of December 2, 1968, P.L. 1144, as amended , 16 P.S. §9960.6(a)(10). As such, Attorney Watkins properly filed a no

- merit letter in seeking to withdraw his representation of Nelson.5

requirements are satisfied, we must conduct our own review of whether the issues

are meritless. Id.

Here, Attorney Watkins’ no

- merit letter satisfies the applicable

technical requirements. Attorney Watkins notified Nelson of his request to

withdraw and advised him of his right to retain new counsel or file an appeal on his

own behalf. 2 Further, Attorney Watkins sent Nelson c opies of the petition to

wit hdraw and the no

- merit letter.

However , Attorney Watkins’ no

- merit letter does not adequately

address the issue s Nelson preserved below

. More particular ly

, Nelson asserted the

Board erred in: (1) failing to recognize he becam e available to begin serving his

backtime on March 14, 2015, the date he was granted parole on his n ew criminal

sentence

, s ee Certified Record (C.R.) at 67 ; ( 2 ) imposing backtime that exceeded

the time remaining on his maximum sentence; and, (3) improperly extending his

maximum sentence date. See C.R. at 89

- 90. Attorney Watkins does not pr ovide a

clear , direct explanation as to why and how these issues lack merit. 3 On this basis,

we must deny Attorney Watkins’ request for leave to withdraw as counsel. The

Court will not undertake an independent examination of the merits of Nelson’s

2 Nelson did not retain new counsel or file a brief.

3 Attorney Watkins acknowledges Nelson preserved the issue of whether the Board erred

in failing to recognize he became available to begin serving his backtime on March 14, 2015, the date he was granted parole on his new criminal sentence . However, he offers no analysis that clearly and directly responds to this issue. Additionally, Attorney Watkins offers no response to the remaining two issues Nelson raised and preserved below, which are set forth above.6

ap peal until it is satisfied counsel has fully discharged h is obligations under

Turner

. 4

ROBERT SIMPSON, Judge

4 B ecause it appears Nelson completed serv ice of his maximum sentence on October 6,

2016

, his appeal may be moot. However, no party asserts that this matter is, in fact, moot. Thus

, we decline to dismiss th e appeal as moot at this time.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sherman Nelson, : Petitioner :

:

v. : No. 807 C.D. 2016

: Pennsylvania Board of Probation : and Pa role, : Respondent :

O R D E R

AND NOW , this 13 th day of January , 201 7

, Kent D. Watkins’ petition

to withdraw as counsel is DENIED , without prejudice. Counsel is DIRECTED to

refile his petition to withdraw or file a brief in support of Sherman Nelson’s

pet ition for review within 30 days of this order.

ROBERT SIMPSON, Judge