IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marcus Brown, :

Petitioner :

:

v. : No. 605 C.D. 2020

: Submitted: December 18, 2020

Pennsylvania Parole Board, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: March 9, 2021

Marcus Brown, an inmate confined at the State Correctional Institution 

(SCI) at Mercer, petitions for review of an adjudication of the Pennsylvania Parole 

Board (Board) recommitting him to serve 18 months’ backtime as a convicted parole 

violator and recalculating his maximum sentence date to November 6, 2037. His 

counsel, Jessica A. Fiscus, Esquire (Counsel),

2 has filed an application to withdraw 

her appearance based on her assessment that Brown’s appeal lacks merit. For the 

following reasons, we grant Counsel’s application to withdraw and affirm the 

Board’s order. 

On August 19, 1997, Brown pleaded guilty in Allegheny County to the 

charges of third-degree murder, criminal attempt to commit homicide and robbery. 

He was sentenced to a term of imprisonment of 12 to 40 years in an SCI, with a 

maximum sentence date of August 19, 2037.

1 This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt 

completed her term as President Judge.

2 Counsel is an assistant public defender in Erie County. 
2

Brown was paroled on December 22, 2014, to a community corrections 

center. On April 14, 2015, Brown was released from the community corrections 

center to an approved home plan in Erie, Pennsylvania. Brown vacated his

apartment on October 31, 2017, and his approved residence was changed to a shelter. 

On October 30, 2018, parole officers searched Brown’s residence based 

on a tip from a confidential informant. They found a rifle, which Brown admitted 

was his. Brown was charged with unlawful possession of a firearm under Section 

6105(a)(1) of the Pennsylvania Uniform Firearms Act of 1995 (Uniform Firearms 

Act), 18 Pa. C.S. §6105(a)(1). Bail on the new charge was set at $25,000 cash. Also,

on October 30, 2018, the Board issued a detainer warrant. On November 30, 2018, 

Brown’s bail was modified to $25,000 unsecured. 

On January 29, 2019, the charge under Section 6105(a)(1) of the 

Uniform Firearms Act was withdrawn, and Brown entered a guilty plea to the 

amended charge of carrying a firearm without a license under Section 6106(a)(1) of 

the Uniform Firearms Act, 18 Pa. C.S. §6106(a)(1). The Court of Common Pleas of 

Erie County (trial court) sentenced him to three to six years in an SCI. The trial 

court ordered that “[c]onfinement is Concurrent with Unknown – any other 

sentence(s) [Brown] is currently serving.” Certified Record at 43.

On February 8, 2019, the Board notified Brown that it would hold a 

revocation hearing due to his new conviction. He waived his rights to counsel and 

a revocation hearing. On March 22, 2019, the Board recommitted Brown to serve 

18 months’ backtime as a convicted parole violator and, in its discretion, awarded 

him credit for his time spent at liberty on parole. His maximum sentence date was 

recalculated to November 6, 2037. 
3

Brown, pro se, filed an administrative remedies form challenging the 

recalculation of his sentence, which he argued did not account for the trial court’s 

order that his new criminal sentence run concurrently with any other sentence. Thus, 

Brown argued, the Board should not have recalculated his maximum sentence date. 

On May 21, 2020, the Acting Board Secretary responded that Section 6138(a)(5) of 

the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §6138(a)(5), prohibits a 

convicted parole violator from serving a new sentence concurrently with his original 

sentence. Based on its conclusion that Brown’s claim is prohibited by statute, the 

Board affirmed its March 22, 2019, decision. 

Brown, now represented by Counsel,3filed a petition for review in this 

Court, reiterating his claim that his new sentence and the backtime on his original 

sentence should run concurrently. Counsel subsequently filed her application to 

withdraw, along with a no-merit letter asserting that Brown’s claim lacks merit. 

When evaluating an attorney’s application to withdraw from 

representation of a parolee who challenges a revocation decision, we must determine 

whether counsel has (1) notified the parolee of the application to withdraw; (2) 

provided the parolee with a copy of a no-merit letter in accordance with 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); and (3) advised the parolee of 

his right to retain new counsel or file a brief on his own behalf. Miskovitch v. 

Pennsylvania Board of Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013). 

The no-merit letter must detail the extent of counsel’s review and explain why the 

parolee’s claim is meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 

3 The Chief Public Defender of Erie County filed the petition for review. The Chief Public 

Defender subsequently withdrew her appearance, and Counsel entered her appearance on behalf 

of Brown.
4

2009). If counsel has fully complied with the technical requirements for withdrawal, 

the Court will independently review the merits of the parolee’s claims.

Here, the record reflects that Counsel has notified Brown of the 

application to withdraw; has provided him with a copy of the no-merit letter that 

details Counsel’s review of the issue and the reasons why Counsel concluded the 

issue is meritless; and has advised Brown of his right to retain new counsel or to file 

a brief on his own behalf.

4 Accordingly, we conclude that Counsel has satisfied the 

technical requirements for withdrawal of representation.

Turning to our review of the merits,5 we consider Brown’s claim that 

the Board erred in recalculating his maximum sentence date because his 

recommitment sentence must run concurrently with his new criminal sentence, in 

accordance with the trial court’s order. Counsel asserts in her no-merit letter that 

the issue raised by Brown is meritless because it is prohibited by statute. We agree.

We begin with Section 6138(a)(5)(i) of the Parole Code, which

provides, in relevant part:

(5) If a new sentence is imposed on the parolee, the service of the 

balance of the term originally imposed by a Pennsylvania court 

shall precede the commencement of the new term imposed in the 

following cases:

(i) If a person is paroled from a State correctional 

institution and the new sentence imposed on the person is 

to be served in the State correctional institution.

4 Brown has not obtained new counsel or filed a brief on his own behalf.

5

In reviewing an adjudication of the Board, this Court must determine whether necessary findings 

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

constitutional rights were violated. Johnson v. Pennsylvania Board of Probation and Parole, 706 

A.2d 903, 904 (Pa. Cmwlth. 1998).
5

61 Pa. C.S. §6138(a)(5)(i). In Palmer v. Pennsylvania Board of Probation and 

Parole, 134 A.3d 160 (Pa. Cmwlth. 2016), this Court applied Section 6138(a)(5)(i) 

in the context of a parolee’s claim that is similar to Brown’s. 

The parolee in Palmer was charged with aggravated assault and 

negotiated a plea deal to serve 15 to 30 months in an SCI. The plea agreement, 

accepted by the sentencing court, stated that his sentence was to run concurrently to 

any sentence he was serving while on parole. At the parolee’s revocation hearing, 

his counsel stated that the Board would not object to running the sentences 

concurrently. The parolee’s parole agent stated that he had no objection to counsel’s 

statement. However, when the Board issued its decision, it refused to honor the plea 

agreement that the parolee serve his backtime concurrently with his new sentence. 

The parolee petitioned for this Court’s review. He argued that the 

Board was obligated to accept the plea agreement he made with the district attorney,

which was accepted by the sentencing court. We disagreed, holding that “Section 

6138(a)(5) of the [Parole] Code ... requires that [convicted parole violators] serve 

the backtime on their original state sentence before they can begin to serve time on 

a newly imposed state sentence.” Palmer, 134 A.3d at 165. As such, “the Board 

may not impose backtime to run concurrently with a new sentence for an offense 

committed while on parole.” Id. We rejected the parolee’s reliance on his plea 

agreement, explaining that “any agreement with [the parolee] indicating that his new 

criminal sentence would run concurrently with his backtime was invalid.” Id. We 

further explained that if the parolee accepted the plea agreement in reliance on being 

able to serve his sentences concurrently, the “proper remedy is to seek to vacate the 

plea agreement in the [sentencing] court.” Id. at 166. Moreover, “[b]ecause neither 

the [sentencing] court nor the Board could order [the parolee’s] backtime and new 
6

sentence to run concurrently, any agreement indicating that the Board would even 

consider doing that would render [the parolee’s] plea agreement void.” Id.

In sum, because a convicted parole violator must serve his new sentence 

and the backtime on his original sentence consecutively, we agree with Counsel that 

Brown’s issue on appeal lacks merit, and the Board did not err in denying Brown’s 

administrative appeal. Further, our review indicates that the Board correctly 

calculated Brown’s maximum sentence date.

6

 Accordingly, we grant Counsel’s 

application to withdraw and affirm the Board’s order.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

6 On October 30, 2018, when Brown was arrested on the new criminal charge, he had 6,868 days 

remaining on his original sentence. Brown was incarcerated on the new charge from October 30, 

2018, through November 30, 2018, when his bail was modified to unsecured. Thus, from 

November 30, 2018, through his sentencing on January 29, 2019, Brown was incarcerated solely 

on the Board’s warrant. This entitled him to a credit of 60 days on his original sentence, reducing 

it to 6,808 days. See Gaito v. Pennsylvania Board of Probation and Parole, 563 A.2d 545, 547 

(Pa. Cmwlth. 1989) (“Time spent in custody pursuant to a detainer warrant shall be credited to a 

convicted parole violator’s original term only when the parolee was eligible for, and had satisfied, 

bail requirements for the new offense and thus remained incarcerated only by reason of the detainer 

warrant against him.”). From January 29, 2019, until he was returned to the Board’s custody on 

March 18, 2019, he was serving his new sentence. Adding 6,808 days to the date Brown was 

returned to the Board’s custody yielded a new maximum sentence date of November 6, 2037. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marcus Brown, :

Petitioner :

:

v. : No. 605 C.D. 2020

:

Pennsylvania Parole Board, :

Respondent :

O R D E R

AND NOW, this 9

th day of March, 2021, the application to withdraw 

appearance, filed by Jessica A. Fiscus, Esquire, is GRANTED, and the Pennsylvania 

Parole Board’s May 21, 2020, order is AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge