IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew L. Smith , :

Petitioner :

: v. : No. 274 C.D. 201 8

: Submitted: July 2 0 , 20 18 Pennsylvania Board of Probation : and Parole , :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON , Judge

HONORABLE PATRICIA A. McCULLOUGH , Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: August 23 , 201 8

Before this Court are the petition of Matthew L. Smith ( Smith ) for review of the January 3 1 , 201 8 determination of the Pennsylvania Board of Probation and Parole (Board ) , which affirmed its recalculation of hi s maximum

sentence date , and the application of Forest County Public Defender Michelle M. Alaskey, Esquire (Counsel) for leave to withdraw as counsel for Smith

. For the following reasons, we grant Counsel’s application to withdraw and affirm the Board’s determination.

On Ma rch 27 , 201 4 , Smith was paroled from a state prison sentence of 1 year and 6 months to 5 year s

. ( Certified Record (C.R.) at 40

- 42, 48

. ) His maximum date at that time was April 19 , 201 6 . (C.R. at 40

- 4 1 .) On May 12, 2014 , the Board issued a Warrant to Commit and Detain Smith fo r violation of his parole

. (C.R. at 54.) Smith was confin ed on that technical parole violation charge from May2

12, 2014 until August 26, 2014, when he was released to a community corrections

center . (C.R. at 79, 144 , 170 .) On November 12, 2014, Smith absconded , and the Board declared him delinquent. (C.R. at 65 , 74, 79 .) On December 3, 2014, Smith was arrested for violation of his parole and was held on a Board Warrant to Commit and Detain

. (C.R. at 66 , 78 .) On January 22 , 2015, Smith was recommitted as a technical parole violator , and his maximum date was extended to May 10, 2016 based on the 21

- day period from November 12 to December 3, 2014 that Smith had been delinquent. (C.R. at 80

- 84 .)

On March 13, 2015, Smit h was re

- parole d . (C.R. at 85 .) On April 3, 2015, Smith absconded again, and the Board declared him delinquent . (C.R. at 91 , 99 .) On April 14, 2015, Smith was arrested for violation of his parole and was confined on this technical parole violation char ge until July 14 , 201 5 , when he was released to a community corrections center . (C.R. at 92 , 98 , 101, 121

- 122 .) On August 1 3 , 201 5 , new criminal charges were filed against Smith , including a charge that he committed a second

- degree felony bank robbery on August 10, 2015, and the Board issued a Warrant to Commit and Detain him for violation of his parole

. (C.R.

at 102

- 106, 107, 157

- 158

. ) Smith entered a guilty plea to th e robbery charge o n March 9 , 2016, and was sentenced to 3 to 6 years’ imprisonmen t on that convic tion on April 27, 2016

. ( C.R. at 157

- 159, 165

- 169 .)

By decision mailed on June 17, 2016 , the Board recommitt ed Smith to a state correctional institution (SCI) as a convicted parole violator with a new maximum date of July 10 , 201 7

. ( C.R. at 172

- 175 .) This new maximum date was based on the Board’s determination that Smith had 424 days remaining on his sentence when he was re

- paroled on March 13, 2015 , that Smith forfeited as liberty on parole the 230 days between March 27 and Novemb er 12, 2014, and that h e was3

entitled to credits of 106 days for the period from May 12 to August 26, 2014 , 91 days for the period from April 14 to July 14, 2015, and 18 days for the period from August 13 to August 31, 2015. (C.R. at 174 , 191 .) Adding th e forfeited 230 days to the 424 days remaining on his sentence and subtracting 106, 91 and 18 days , t he Board concluded that Smith had 43 9 days remaining on his sentence , which he began serving on April 27 , 201 6 , resulting in a new maximum date of July 10, 2017 . (C.R.

at 174, 191 .)

Smith timely filed a r equest for a dministrative r e medies with the Board

on June 26, 2016 , asserting that his maximum date was not correctly calculated because he was not given credit for four periods of time when he contends that he

was confin ed and not at liberty on parole: a period in May and June 2014 , a period from June to August 2014 , a period between November 2014 and March 2015 , and a period between April to July 2015 . (C.R. at 178

- 179 .) By decision maile d January 31, 2018, the Board denied the r equest for a dministrative r elief and affirmed Smith ’s maximum date of July 10, 2017 . (C.R. at 19 1

- 19 2.) 1 Counsel timely filed the instant
p etition for r eview on Smith ’s behalf, appealing the calculation of Smith ’s July 10, 2017 maximum date to this C ourt

. O n May 23, 2018 , after the certified record was filed by the Board, Counsel filed an application for leave to withdraw and a no

- merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

. Smith was notified of this application and of his right to obtain substitute counsel or file a brief on his own behalf and has filed nothing in response to the application or i n support of the petition for review.

1 Although the maximum date on Smith’s original sentence expired before the Board ruled, this matter is not moot because Smith is st ill incarcerated under his 3

- to 6

- year bank robbery sentence and a reduction in his maximum date here c ould impact the time credited to that new sentence. See Seilhamer v. Pennsylvania Board of Probation and Parole , 996 A.2d 40, 42 n.2 (Pa. Cmwlth. 2010).4 Before this Court can consider the m erits of the p etition for r eview, we must first address Counsel’s application to withdraw and determine whether Counsel has satisfied the requirements that appointed counsel must meet before leave to withdraw may be granted. Seilhamer v. Pennsylvania Boar d of Probation and Parole , 996 A.2d 40, 42

- 44 (Pa. Cmwlth. 2010); Reavis v. Pennsylvania Board of Probation and Parole , 909 A.2d 2 8 , 33 (Pa. Cmwlth. 200 6 ) ; Adams v. Pennsylvania Board of Probation and Parole , 885 A.2d 1121, 1123 (Pa. Cmwlth. 2005)

.

When counsel for an inmate in an appeal from a decision of the Board seeks to withdraw on the ground that the appeal is frivolous or without merit , s he

m ust satisfy the following procedural requirements: 1) s he must notify the inmate of h er request to withdraw; 2) s he must furnish the inmate with a copy of a no

- merit letter or a brief satisfying the requirements of Anders v. California , 386 U.S. 738 (1967) ; 2 and 3) s he must advise the inmate of his right to retain new counsel or raise any new points he might de em worthy of consideration by submitting a brief on his own behalf. Miskovitch v. Pennsylvania Board of Probation and Parole , 77 A.3d 66, 69 (Pa. Cmwlth. 2013); Hughes v. Pennsylvania Board of Probation and Parole , 977 A.2d 19 , 22

- 25 (Pa. Cmwlth. 2009) ( en banc ); Zerby v. Shanon , 964 A.2d 956 , 958

- 60 (Pa. Cmwlth. 2009) ; Adams , 885 A.2d at 112 3

. Where the inmate has a constitutional right to counsel, an Anders brief is required and withdrawal is allowed only if the appeal is wholly frivolous. Hughes , 977 A.2d at 22

- 2 6 ; Zerby , 964 A.2d at 958

- 60

. If there is not a constitutional right to counsel, counsel may satisfy h er obligations by filing a no

- merit letter, rather than an Anders brief, and the standard

2 A n Anders brief must (i) provide a summary of the procedural history and facts, with citations to the record; (ii) ref

er to anything in the record that counsel believes arguably supports the appeal; (iii) set forth counsel’s conclusion that the appeal is frivolous; and (iv) state counsel’s reasons for concluding that the appeal is frivolous. Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009).5

is whether the claims on appeal are without merit. Hughes , 977 A.2d at 2 4

- 26; Zerby , 964 A.2d at 95 9

- 6 1

. Because the only issues in this appeal are challenges to the Board’s calculation of Smith ’s maximum sentence date, there is no constitutional right t o counsel and only a no

- merit letter is required. Seilhame r , 996 A.2d at 42

- 43 n.4; Hughes , 977 A.2d at 25

- 26; Zerby , 964 A.2d at 961

.

Counsel satisfied the procedural requirements that she notify Smith of h er request to withdraw , advise him of his right to retain new counsel or submit supplementary brief

ing on his own behalf , and supply him with her no

- merit letter. (Application to Withdraw Ex. A.) Counsel’s no

- merit letter is also sufficient. A no

merit letter must set forth: 1) the natu re and extent of counsel’s review of the case; 2) each issue that the inmate wishes to raise on appeal; and 3) counsel ’ s explanation of why each of those issues is merit less

. Miskovitch , 77 A.3d at 69; Seilhame r , 996 A.2d at 43; Hughes , 977 A.2d at 26; Ze rby , 964 A.2d at 961. Counsel’s no

- merit letter sets forth her review of the certified record and discusses all of the issues that Smith seeks to raise and explains why Counsel believes that these issues are without merit. The no

- merit letter explains th at the Board in fact gave Smith credit for all the time periods raised in his timely administrative remedies form . (No

- Merit Letter
at 6

- 7.) The no

- merit letter also addresses additional issues that Smith seeks to raise in this appeal , explaining that Smith’s claim for credit for an additional October to November 2014 time period is barred by waiver and explaining that his claim that the Board improperly extended his sentence beyond his judicially imposed sentence is without merit unde r relevant statutory and case law

. ( Id. at 7

- 11.) Accordingly, this Court may grant Counsel’s application to withdraw and proceed to the merits.

The only arguments that Smith has sought to raise in this appeal are that the recalculation of his ma ximum sentence date is incorrect because the Board failed6

to give him credit for specific periods of time that he was confin ed and that the Board improperly extended his judicially imposed sentence . We conclude that n one of these arguments has merit. 3

Co ntrary to Smith ’s assertions, the Board ’s maximum sentence date gave him credit for all periods that he timely raised

. The only time periods for which Smith sought credit in his administrative remedies form were a period in May and June 2014 of parole vio lation hearing pre

- confinement at the S tate Correctional Institution at Albion, a period from June to August 2014 of confinement in a parole violation center, a period between November 2014 and March 2015 when he was confined on his November 2014 parole vi olation, and a period from April to July 2015 when he was confined in a parole violation center on his April 2015 parole violation . (C.R. at 178

- 179.) The record shows that the Board expressly gave Smith credit for the May to June 2014, June to August 2014, and April to July 2015 periods : the Board listed as confinement time 106 days for the period from May 12 to August 26, 2014 and 91 days for the period from April 14 to July 14, 2015, and subtracted those days in calculating Smith’s new maximum date . (C.R. at 174, 191.) Although the Board did not reference or subtract any time between November 2014 and March 2015, the record shows that the Board gave Smith credit for all time that he was confined in this period i n calculati n g the number of days remaining on Smith’s

sentence from his March 13, 2015 re

- parole and exclud in g th e November 2014 and March 2015 period from the forfeited time at liberty on parole

. The only time that Smith was confined during the November 2014 to March 2015 period was December 3, 2014 to March 13, 2015. (C.R. at 66, 78

- 79, 85 .) In its calculation of the July 10,

3 This Court may reverse the Board’s determination only where necessary findings are not supported by substantial evidence, an error of law was co m mitted, or constitutional rights of the inmate or administrative procedures were violated. Smith v. Pennsylvania Board of Probation and Parole , 171 A.3d 759 , 764 (Pa. 2017).7

2017 maximum sentence date , the Board computed the unserved portion of Smith’s sentence as consisting only of the period between March 13, 2015 and the previously established May 10, 2016 maximum date plus forfeited liberty on parole. (C.R. at 174.) This calculation gave Smith credit for all time before March 13, 2015 , including the December 3, 2014 to March 13, 2015 period, as t ime served , unless it was forfeited liberty on parole. The forfeited liberty on parole consisted only of time between March 27 and November 12, 2014 and did not include any of Smith’s December 3, 2014 to March 13, 2015 confinement

. ( Id. )

To the extent that Smith seeks to raise any other issues in this appeal , they are barred by waiver. I ssues not raised by the inmate in a timely administrative appeal to the Board are waived and cannot be grounds for reversing the Board’s determination

. Adams , 8 85 A.2d at 112 5 n.7 ; White v. Pennsylvania Board of Probation and Parole , 8 33 A. 2 d 819 , 821 (Pa. Cmwlth. 2003 ) ; Joyce v. Pennsylvania Board of Probation and Parole , 8 11 A. 2 d 73 , 78 (Pa. Cmwlth. 2002 ) ; McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 , 1094

- 95 ( Pa. Cmwlth. 1993)

. Smith did not raise any claim in his June 26, 2016 administrative remedies form that he was entitled to credit for the October to November 2014 period or that that there was any error in his maximum sentence date other than the alleged denial of credit for the four time periods discussed above

. (C.R. at 178

- 179.) While Smith did assert a claim that the Board improperly extended his judicially imposed sentence in a second r equest for administrative relief , that document was not filed until July 28 or 29, 2016 , more than 30 days after the Board’s June 17, 2016 notice of its recommitment order and new maximum sentence date. (C.R. at 180

- 186.) Because an administrati ve appeal to the Board must be filed within 30 days, this filing was untimely and was not a valid appeal to8

the Board. 37 Pa. Code § 73.1(b)(1); Smith v. Pennsylvania Board of Probation and Parole , 81 A.3d 1091, 109 4 (Pa. Cmwlth. 2013) ; McCaskill, 631 A.2 d at 1095; Cadogan v. Pennsylvania Board of Probation and Parole , 541 A.2d 832 , 833

- 34 (Pa. Cmwlth. 1988)

.

For the foregoing reasons , we grant Counsel’s application to withdraw and affirm the Board’s January 31, 2018 determination.

____________________________________ JAMES GARDNER COLINS, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew L. Smith , :

Petitioner :

: v. : No. 274 C.D. 2018

: Pennsylvania Board of Probation : and Parole, :

Respondent :

ORDER

AND NOW, this 23 rd day of August , 201 8 , the Applica ti on for Leave to Withdraw as Counsel filed by Forest County Public Defender Michelle M. Alaskey, Esquire in the above

- captioned matter is h ereby GRANTED. The January 31, 2018 determination of the Pennsylvania Board of Probation and Parole is hereby
AFFIRMED.

____________________________________ JAMES GARDNER COLINS, Senior Judge