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 Judge 1

HO NORABLE 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, petit ions 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 , Esqui re (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 a n 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, Pennsylva nia. Brown vacated his
apartment on O ctober 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 P a. C.S. § 6105(a)(1). B ail on the new charge was set at $25,00 0 cash. Also,

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

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

O n January 29, 2019, the charg e under Section 6105(a)(1) of the

Uniform Firearms Act was withdraw n, and Brown entered a guilty plea to the
amended charge of carrying a firearm without a license under Section 6106 (a)(1) of

the Unif orm 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 a n 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 M arch 22, 2019, the Board recommitted Brown to ser ve

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

re calculation of his sentence , which h e argued did not account for the trial court’s

order that his new criminal sentence run concurre ntly with any other sentence. Thus,
Brown argued, t he 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 fro m servin g 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, 3 filed 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 su bsequently filed her application to

withdraw , along with a no

- merit letter asserting that Brown’s claim lack s merit.

W hen evaluating an attorney’s application to withdraw from
representation of a parolee who challenges a revocation decision, we must determine
whether counsel has (1) notif ied the parolee of the application to withdraw; (2)
provid ed 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 Parol e , 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, 96 1 (Pa. Cmwlth.

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

. T he 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 technica l 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

detai l s Counsel ’ s review of the issue and the reasons why Co unsel concluded the

issue is merit less; 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

technic al requirements for withdrawal of representation

.

Turning to our review of the mer its, 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 crimina l 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 prohibit ed 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 follo wing 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

Pa role , 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. T he 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 concu rrently 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 th at “ 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 ser ve 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 of fense
committed while on parole.” Id. We rejected the parolee’s reliance on his plea
agreement, explaining that “any agreement with [ the parolee] indicating t hat his new
criminal sentence would run concurrently with his backtime was invalid. ” Id

. We
further explained that i f 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 no r the Board could order [the parolee’s] backtime and new6

senten ce 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 ori ginal sente nce. 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 detain er 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 appli cation to withdraw
appearance, f

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

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

_____________________________________ MARY HANNAH LEAV ITT, President Judge