IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Scantling

, : Petitioner :

:

v. : No. 2701 C.D. 2015

: Submitted: June 24, 2016 Pennsylvania Board of : Probation and Parole, : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK , Judge HONORABLE JAMES GARDNER COLINS , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON FILED: September 15, 2016

Petitioner Thomas Scantling (Scantling) petitions for review of an
order of the Pennsylvania Board of Probation and Parole (Board). The Board denied Scantling’s administrative appeal of the Board’s August 14, 2015 order,

which formally recommitted Scantli ng as a convicted parole violator and

recalculated his maximum release date . Scantling’s counsel,

Nicholas E. Newfield, Esquire (Counsel), filed a motion for leave to withdraw as

counsel. Counsel asserts that the issues raised by Scantling in his petitio n for
review are frivolous and lacking in any merit. We now deny Counsel ’s motion for2

leave to withdraw and provide Counsel with an opportunity to submit an amended
request for leave to withdraw. 1

When no constitutional right to counsel is involved in a probation and
parole case, an attorney seeking to withdraw from representing a prisoner may file

a no

- merit letter, as compared to an Anders brief. 2 In Hughes v. Pennsylvania
Board of Probation and Parole , 977 A.2d 19 (Pa. Cmwlth. 2009), this Court held

t hat a constitutional right to counsel in a parole and probation matter arises only when the prisoner’s case includes:

[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.

1 Because we are denying Counsel’s petition but permitting him to file an amended

no

- merit letter, we will not provide a recitation of the facts involved in this matter, other than to note generally that Scantling was on parole when he was arrested and charged with ne w crimes in August 2014. The Board lodged a warrant to commit and detain Scantling at that time.

2 In Anders v. California , 386 U.S. 738 (1967), the United States Supreme Court held that, in order for a criminal defendant’s counsel to withdraw from repres enting his client in an appeal, counsel must assert that the case is completely frivolous, as compared to presenting an absence of merit. An appeal is completely or “wholly” frivolous when there are no factual or legal justifications that support the appe al. Craig v. Pennsylvania Bd. of Prob. and Parole

, 502 A.2d 758, 761 (Pa. Cmwlth. 1985). However, in Commonwealth v. Turner

, 544 A.2d 927 (Pa. 1988), our Supreme Court held that in matters that are collateral to an underlying criminal proceeding, such as parole matters, a counsel seeking to withdraw from his representation of a client may file a “no

- merit” letter that includes information describing the extent and nature of the counsel’s review, listing the issues the client wants to raise, and informing the Court of the reasons why counsel believes the issues have no merit.3

Hugh es , 977 A.2d at 25

- 26 (quoting Gagnon v. Scarpelli , 411 U.S. 778 (1973)).
The record in this matter contains no suggestion by Scantling that he did not
commit the crime for which he received a new criminal conviction, nor does
Scantling suggest any reasons constituting justification or mitigation for his new
criminal conviction. Thus, Scantling only has a statutory right to counsel under

Section 6(a) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as
amended

, 16 P.S. § 9 960.6(a)(10).

In order to satisfy the procedural requirements associated with

no

- merit letters, counsel must: (1) notify the parolee that he has submitted to the Court a request to withdraw; (2) provide the parolee with a copy of counsel’s

no

- merit lett er; and (3) advise the parolee that he has the right to obtain new
counsel and to submit to the Court a brief of his own, raising any arguments that he
may believe are meritorious. 3 Reavis v. Pennsylvania Bd. of Prob. and

Parole

, 909 A.2d 28, 33 (Pa. Cmwl th. 2006). In seeking to withdraw, this Court
has consistently required an attorney to include the following descriptive

information in a no

- merit letter: (1) the nature and extent of counsel’s review of
the case; (2 ) the issues the parolee wants to rais e; and (3) the analysis counsel used
in reaching his conclusion that the issues are meritless. Zerby v. Shanon

, 964 A.2d 956, 961 (Pa. Cmwlth. 2009).

Consequently, before considering whether Scantling’s appeal has no
merit and proceeding to make an in dependent review of the merits of the case, we

3 Counsel served Scantling with his petition for leave to withdraw and his brief . In a letter addressed to Scantling , counsel advised Scantling of his right to retain counsel and to file a brief on his own behalf. Thus, counsel has complied with these requirements.4

must first evaluate Counsel’s no

- merit letter to determine whether it complies with
the requirements for withdrawal applications. Counsel’s no

- merit letter adequately summarizes Scantling’s conviction and par ole history and his conviction following
the grant of parole

. In his administrative appeal, Scantling alleged that the Board
failed to conduct a timely revocation hearing and improperly relied on hearsay
evidence in finding that Scantling violated his par ole . (C.R. at 97.) Further,
Scantling argued that the Board erred in its calculation of his maximum date. ( Id. )
Specifically, Scantling alleged that the Board failed to give him credit for time served due to the Board’s detainer, where Scantling was gr anted unsecured bail on
his most recent charges. ( Id. )

Counsel, however, does not adequately address the issues raised by
Scantling. Regarding the timeliness and hearsay issues, Counsel, in his no

- merit
letter, stated the following:

You allege that the Board failed to conduct a timely revocation hearing in the above matter; and the Board improperly relied upon hearsay and/or other inadmissible evidence in relation to the revocation hearing that was held. The Board’s [r]ev ocation hearing was held on May 15, 2015. You alleged that the conviction date on the new offense, DUI, was November 13, 2104 (sic). Review of said record indicates that the (sic) you were sentenced by the Philadelphia Municipal Court on February 24, 2015. The effective date of this s entence as indicated in the sentence as Februa r y 24, 2015, with immediate parole to follow. Thus the minimum sentence of 72 hours would have been comple ted on February 27, 2015. At the [r]evocation hearing you alleged that the convict ion date was November 13, 2014, which appea r s to be the date that the plea was entered, in which the Philadelphia Municipal Judge ordered a presentence investigation be prepared to assist in sentencing tha t was scheduled on February 24, 2015.5 Once again, through coun sel, you objected to the timing of the revocation hearing. It appears from the reproduced record that the appropriate documentation was presented at the revocation hearing to support the conviction. The parole agent provided testimony that the verificati on was not received until April 27, 2015. Furthermore, you acknowledged the conviction at the revocation hearing.

( No

- merit letter at 1

- 2; I nternal citations omitted).

C ounsel references Scantling’s claims of error but merely alludes that

those claims of error are without merit. Counsel provided factual details
surrounding Scantling ’ s claims, yet did not provide a legal discussion citing case law or statutory provisions that would deem Scantling’s claims to be meritless.
This legal discussion is requ ired of Counsel, even if the reason that supports the Board’s decision is widely known and patently obvious. This type of explanation
and/or discussion assists the Court in its evaluation of the merit (or lack thereof) of Scantling’s claims regarding time liness and the Board’s improper reliance on
hearsay evidence. Although all of these issues may ultimately prove to lack merit
of any kind, in order to satisfy the requirements set forth in Zerby , Counsel was
required to fully discuss those issues and why the applicable law does not provide
relief to Scantling . Consequently, we must deny Counsel’s petition for leave to
withdraw as counsel. Counsel has two options. Counsel may file an amended

no

- merit letter that fully analyzes the issues Scantling has ra ised. Alternatively,
Counsel may submit a brief on the merits of the petition for review.

Accordingly, we deny Counsel’s petition for leave to withdraw.

P. KEVIN BROBSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Scantling

, : Petitioner :

:

v. : No. 2701 C.D. 2015

: Pennsylvania Board of : Probation and Parole, : Respondent :

O R D E R

AND NOW, this 15th day of September

, 2016, the motion for leave to withdraw as counsel filed by Nicholas E. Newfield , Esq uire , is DENIED. Counsel

shall submit either an amended no

- merit letter or a brief on the merits of the
petition for review filed by Petitioner Thomas Scantling within thirty days of the

date of this order. If Counsel submits an amended no

- merit letter, the Court will
again address that request along with the merits of the petition for review . If
Counsel submits a brief on the merits, Respondent may submit a revised brief, at

its discretion, but must do so within thirty days of the date Counsel files a brief on

t he merits.

P. KEVIN BROBSON, Judge