IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert A. Midgley, :

Petitioner :

:

v. : No. 59 C.D. 2021

: Submitted: February 18, 2022

Pennsylvania Parole Board, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: April 1, 2022

Petitioner Robert A. Midgley (Midgley) petitions for review of Respondent 

Pennsylvania Parole Board’s (Board) December 30, 2020 order, through which the 

Board affirmed its March 15, 2019 decision to recommit him to serve a total of 12 

months of backtime, recalculate the maximum date on his carceral sentence, and

award him no credit for time served at liberty on parole. Midgley’s counsel, Sarah 

Beth Stigerwalt-Egan, Esquire (Counsel), has submitted an Application to Withdraw 

as Counsel (Application to Withdraw) along with an Anders brief,1through which 

she contends that arguments raised by Midgley in his Petition for Review are 

frivolous and without merit. After thorough consideration, we deny Counsel’s 

Application to Withdraw without prejudice and direct her to file either a proper, 

1 Pursuant to Anders v. California, 386 U.S. 738 (1967), court-appointed counsel must file 

what is known as an Anders brief when seeking to withdraw from representation in certain 

circumstances. See Com. v. Santiago, 978 A.2d 349, 353-55 (Pa. 2009). 
2

amended Application to Withdraw and no-merit letter, or an advocate’s brief in 

support of Midgley’s Petition for Review, within 30 days.

I. Background

On August 5, 2015, after pleading guilty to one count of driving under the 

influence, Midgley was sentenced in the Court of Common Pleas of the 39th Judicial 

District, Franklin County Branch (Trial Court) to a term of one to five years in state 

prison. Certified Record (C.R.) at 1. The Board then paroled Midgley on August 8, 

2016, at which point the maximum date on his August 2015 sentence was August 5, 

2020, reflecting that Midgley had 1,458 unserved days left on that sentence. Id. at 4-

7. Thereafter, on February 15, 2018, Midgley tested positive for THC during a 

routine parole supervision drug screening procedure, prompting the Board to issue a 

detainer and take him into custody that same day. Id. at 11-12, 22.

2 Midgley was 

subsequently charged with indecent exposure on February 22, 2018, which stemmed 

from an incident in Chambersburg, Pennsylvania, on February 13, 2018, during 

which he was discovered while masturbating in public at a local library. Id. at 19-

20, 24-27. On March 28, 2018, Midgley pled guilty to the indecent exposure charge 

and was sentenced by the Trial Court to 6 to 12 months in state prison. Id. at 66, 75-

79.

The Board then issued a series of decisions that addressed both Midgley’s 

positive drug test and his criminal conviction. On May 16, 2018, the Board 

recommitted Midgley as a technical parole violator (TPV) on account of his positive 

2 THC, or tetrahydrocannabinol, “is the substance [that is] primarily responsible for the 

effects of marijuana on a person’s mental state.” Cannabis (Marijuana) and Cannabinoids: What 

You Need To Know, NATIONAL CENTER FOR COMPLEMENTARY AND INTEGRATIVE HEALTH

(November 2019), https://www.nccih.nih.gov/health/cannabis-marijuana-and-cannabinoids-whatyou-need-to-know (last visited March 31, 2022). Tetrahydrocannabinol is a Schedule I controlled 

substance under Pennsylvania law. See 28 Pa. Code § 25.72(b)(3)(xvi).
3

drug test and ordered that he serve six months of backtime, with an automatic 

reparole date of August 15, 2018. Id. at 38-40. On July 2, 2018, the Board modified 

its May 16, 2018 decision by deleting the automatic reparole provision and 

recommitting Midgley to serve 12 months of backtime as a convicted parole violator, 

due to his guilty plea, to be served concurrently with the previously imposed 6 

months of TPV backtime “when available pending parole from (or completion of) 

[his March 2018 sentence].” Id. at 70-71. Finally, on March 15, 2019, the Board 

reiterated its backtime recommitment determination, declined to award Midgley any 

credit for time served at liberty on parole, and recalculated the maximum date on his 

August 2015 sentence as March 7, 2022.3Id. at 82-83. Confusingly, however, the 

Board’s Order to Recommit, dated March 14, 2019, states that Midgley’s “prior 

parole liberty forfeited” was “0” days and, without explanation, awards him 18 days 

of backtime credit for the time period between February 15, 2018, and March 5, 

2018. Id. at 80-81.

In response, Midgley challenged two of these decisions before the Board. 

First, in July 2018, Midgley administratively appealed the Board’s July 2, 2018 

decision, in which he argued that the Board’s parole “hit” exceeded the time 

remaining on his August 2015 sentence. Id. at 87-88. The Board denied this 

administrative appeal on March 27, 2019. Id. at 90. Subsequently, on April 8, 2019, 

Midgley submitted a second administrative appeal, this one regarding the Board’s 

March 15, 2019 decision. Therein, he stated that he wished “to request leniency in 

the Board’s decision not to award credit . . . for the time served at liberty on parole 

due to the mental capacity of offender during commission of crime resulting in 

3 The Board arrived at this recalculation by using March 28, 2018, as the date of Midgley’s 

“custody for return” and then adding 1,440 days to that date. See C.R. at 80-81.
4

parole violation.” Id. at 91-92. The Board denied Midgley’s second administrative 

appeal on December 30, 2020. Id. at 94-95.

Midgley then filed his pro se Petition for Review with our Court on January 

12, 2021, regarding the Board’s December 30, 2020 order. In his Petition for 

Review, Midgley argued that the Board had unlawfully revoked credit for time 

served at liberty on parole that it had previously awarded him and had extended his 

August 15, 2015 sentence in violation of the Pennsylvania Constitution’s and United 

States Constitution’s prohibitions against double jeopardy and cruel and unusual 

punishment. Pet. for Rev. ¶¶10-11. On February 26, 2021, we appointed the 

Northumberland County Office of the Public Defender to represent Midgley in this 

matter. Order, 2/26/21, at 1-2. Counsel entered her appearance on Midgley’s behalf 

on August 10, 2021, and then filed her Application to Withdraw and Anders brief on 

October 13, 2021.

II. Discussion

Technical Sufficiency of Counsel’s Anders Brief

Before addressing the validity of Midgley’s substantive arguments, we must 

assess the adequacy of Counsel’s Anders brief. Throughout this process, Midgley 

has only sought to challenge the Board’s handling of his time served at liberty on 

parole, as well as the Board’s alleged violations of his due process rights and the 

constitutional prohibition upon cruel and unusual punishment. Counsel therefore did 

not need to file an Anders brief in this matter, as none of Midgley’ claims implicated 

his constitutional right to counsel. See Seilhamer v. Pa. Bd. of Prob. & Parole, 996 

A.2d 40, 43 n.4 (Pa. Cmwlth. 2010).4 Rather, a no-merit letter would have been more 

4 A constitutional right to counsel arises when the petitioner presents 

a[] colorable claim (i) that he has not committed the alleged 

(Footnote continued on next page...)
5

appropriate. Through a no-merit letter, appointed counsel seeks to withdraw from 

representation because “the [petitioner’s] case lacks merit, even if it is not so anemic 

as to be deemed wholly frivolous.” Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 

2007). “[W]e will not deny an application to withdraw simply because an attorney 

has filed an Anders brief where a no-merit letter would suffice”; instead, we evaluate 

the Anders brief as if it was a no-merit letter. Hughes, 977 A.2d at 26 n.4. “A nomerit letter must include an explanation of ‘the nature and extent of counsel’s review 

and list each issue the petitioner wished to have raised, with counsel’s explanation 

of why those issues are meritless.’” Seilhamer, 996 A.2d at 43 (quoting Com. v. 

Turner, 544 A.2d 927, 928 (Pa. 1988)) (some alterations omitted). As long as a nomerit letter satisfies these basic requirements, we may then review the soundness of 

a petitioner’s request for relief. Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 

2009). However, if the letter fails on technical grounds, we must deny the request 

for leave to withdraw, without delving into the substance of the underlying petition 

for review, and may direct counsel to file either an amended request for leave to 

withdraw or a brief on behalf of their client. Id. Furthermore, it is of critical import 

to this analysis that 

[t]he process of a court-appointed attorney seeking leave 

to withdraw from [this kind of] case . . . happens after a 

petition for review is filed, but before the petitioner 

submits an appellate brief. Therefore, given that a courtappointed attorney must address all issues raised by their 

client before a court can determine whether to grant 

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.

Seilhamer, 996 A.2d at 43 n.4 (quoting Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25-26 

(Pa. Cmwlth. 2009)) (some punctuation omitted).
6

permission to withdraw from the case, and the identifiable 

issues raised at the administrative level are not waived 

until the substantive brief stage, the court-appointed 

attorney must analyze all such issues in order to obtain 

leave to withdraw, even if those issues were not mentioned 

in the petitioner’s petition for review.

Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1207 (Pa. Cmwlth. 2020); 

see Pa. R.A.P. 1513(d)(5) (“[T]he omission of an issue from the statement [of 

objections in a petition for review] shall not be the basis for a finding of waiver if 

the court is able to address the issue based on the certified record.”).

Counsel’s Anders brief falls short of satisfying these requirements. In her 

brief, Counsel addresses the question of whether the backtime imposed by the Board 

fell within the presumptive ranges for both Midgley’s technical violation and his 

conviction, despite the fact that Midgley never challenged the amount of backtime 

he received. Anders Br. at 13-15. Additionally, Counsel discusses whether the Board 

improperly revoked previously awarded credit for time spent at liberty on parole. Id.

at 15-16. What Counsel has failed to do, however, is analyze the leniency argument 

Midgley made in his April 8, 2019 administrative appeal or the constitutional due 

process and cruel and unusual punishment claims he presented in his pro se Petition 

for Review. As such, Counsel’s Anders brief fails to clear the bar established by the 

aforementioned case law and, thus, is technically insufficient.

III. Conclusion

Consequently, we deny Counsel’s Application to Withdraw without prejudice 

and direct Counsel to remedy the aforementioned deficiencies by filing either an 
7

amended Application to Withdraw and no-merit letter, or an advocate’s brief in 

support of Midgley’s Petition for Review, within 30 days.5

____________________________

ELLEN CEISLER, Judge

5 We recognize that the maximum date on Midgley’s August 2015 sentence was March 7, 

2022. However, it appears that Midgley is still incarcerated in the Commonwealth’s state prison 

system at State Correctional Institution - Coal Township. See Inmate Locator, PA. DEP’T OF CORR., 

http://inmatelocator.cor.pa.gov (last visited March 31, 2022). Therefore, in addition to curing the 

aforementioned deficiencies, Counsel shall address whether the passage of the maximum date on 

Midgley’s August 2015 sentence renders his Petition for Review moot. See Taylor v. Pa. Bd. of 

Prob. & Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000) (citations omitted) (“[T]he expiration of 

a parolee’s maximum term renders an appeal of a Board revocation order moot. . . . It is well settled 

that an appeal will be dismissed when the occurrence of an event renders it impossible for the court 

to grant the requested relief. . . . Dismissal will be refused only if the issues involved are capable 

of repetition yet likely to evade review and of important public interest, or where a party will suffer 

some detriment without the court’s decision.”); Morrison v. Pa. Parole Bd. (Pa. Cmwlth., No. 655 

C.D. 2020, filed Mar. 1, 2021), slip op. at 6, 2021 WL 772626, at *3 (parolee would suffer some 

detriment if court dismissed petition for review on basis of mootness where parolee had presented 

arguments that, if correct, raised the “possib[ility] that the Board may have erroneously impeded 

his ability to start serving his [new] sentence and, thus, improperly delayed his ultimate release 

from state custody”); Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa. 

Code § 69.414(a) (unreported Commonwealth Court opinions issued after January 15, 2008, may 

be cited for their persuasive value).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert A. Midgley, :

Petitioner :

:

v. : No. 59 C.D. 2021

:

Pennsylvania Parole Board, :

Respondent :

O R D E R

AND NOW, this 1

st day of April, 2022, the Application to Withdraw as 

Counsel filed by Sarah Beth Stigerwalt-Egan, Esquire (Counsel) is hereby DENIED 

WITHOUT PREJUDICE. Counsel shall file either an amended Application to 

Withdraw as Counsel and a no-merit letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), or an advocate’s brief in support of Petitioner Robert A. 

Midgley’s Petition for Review, within 30 days of the date of this order.

____________________________

ELLEN CEISLER, Judge