IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Faircloth, :

Petitioner :

: No. 796 C.D. 2019

v. :

: Submitted: November 22, 2019

Pennsylvania Board of :

Probation and Parole, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: January 27, 2020

Before the court is the petition for review of the May 29, 2019 order of 

the Pennsylvania Board of Probation and Parole (Board), which denied the request for 

administrative relief from the Board’s April 23, 2019 order recalculating the maximum 

sentence date of Stephen Faircloth (Petitioner). Also before the court is the Application 

for Leave to Withdraw filed by court-appointed counsel, Nicholas E. Newfield, Esquire 

(Counsel), on the basis that there are no grounds for appeal and the petition is frivolous. 

We grant Counsel’s Application to Withdraw and affirm the Board’s order.

The facts of this case are as follows. As a result of his guilty pleas to theftrelated offenses in 2014 and 2016, the courts of common pleas in Dauphin and York 

counties sentenced Petitioner to one to five years’ imprisonment and nine months to 

two years’ imprisonment, respectively. For the Dauphin County Sentence, Petitioner’s 
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original maximum sentence date was February 28, 2019, and, for the York County 

Sentence, his original maximum sentence date was July 26, 2020. (Certified Record 

(C.R.) at 1-3.)

On July 28, 2017, the Board paroled Petitioner on the Dauphin County 

Sentence to a state detainer to commence service on the York County Sentence. On 

October 31, 2017, the Board paroled Petitioner on the York County Sentence, and he 

was transferred from incarceration to the Madison House West. At the time he was

paroled to Madison House West, Petitioner had 1,094 days, or approximately 3 years, 

remaining on his York County Sentence (original maximum sentence date of July 26, 

2020, minus the July 28, 2017 parole date, equals 1,094 days). (C.R. at 4-11, 15-24; 

Board’s decision at 1.) 

While Petitioner was at liberty on parole during his time at Madison House 

West, he allegedly committed new criminal violations and violations of the conditions 

of his parole. The Board lodged a detainer on September 6, 2018, and Petitioner was 

arrested and incarcerated in the Cumberland County Prison on that same date. On 

September 10, 2018, the prosecuting authorities filed new criminal charges against 

Petitioner in Cumberland County. Petitioner did not post bail, and the Board awarded 

him four days of backtime credit for the time he spent in custody solely on the Board’s 

detainer, from September 6, 2018, to September 10, 2018. Including this deduction, 

Petitioner owed 1,090 days on the York County Sentence, his original sentence. (C.R. 

at 42, 62-73, 101; Board’s decision at 2.) 

On January 9, 2019, in connection with the new criminal charges, 

Petitioner tendered a guilty plea in the Cumberland County Court of Common Pleas to 

one count of retail theft. Thereafter, on February 12, 2019, a trial judge sentenced him 

to 6 to 12 months’ imprisonment at the Cumberland County Prison. In so doing, the 
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trial judge awarded Petitioner credit on this sentence from September 10, 2018, and 

immediately paroled him to his state detainer. On February 12, 2019, Petitioner was 

released to the Board’s custody. (C.R. at 99-103, 130-32.) 

On April 3, 2019, the Board filed a notice of hearing and charges based 

upon Petitioner’s most recent guilty plea to retail theft. On that same date, Petitioner 

executed a Waiver of Revocation Hearing and Counsel/Admission Form and admitted

the new criminal conviction. (C.R. at 108-123.) By decision mailed April 23, 2019, 

the Board recommitted Petitioner as a Convicted Parole Violator (CPV) to serve six 

months’ backtime and declined to award him credit for time spent at liberty on parole. 

(C.R. at 134-37.) In so deciding, the Board offered the following reason(s): “New 

conviction same/similar to the original offense,” (C.R. at 114), and “poor adjustment 

under supervision.” (C.R. at 134.) The Board also extended Petitioner’s maximum 

sentence date on the York County Sentence to February 6, 2022 (calculated as the date 

Petitioner was released to the Board’s custody, February 12, 2019, with no credit for 

time spent at liberty on parole, plus 1,090 days owed on the sentence). (C.R. at 136.) 

Subsequently, Petitioner filed an administrative appeal and supplemental 

correspondence, asserting that the Board erred in recalculating his maximum sentence 

date. In a decision dated May 29, 2019, the Board affirmed its April 23, 2019 decision. 

(C.R. at 142-49.) 

Petitioner then filed a petition for review with this Court,1and Counsel 

filed an Application for Leave to Withdraw and a “no-merit” letter pursuant to 

 

1 Our scope of review is limited to determining whether constitutional rights were violated, 

whether an error of law was committed, or whether necessary findings of fact are supported by 

substantial evidence. McCloud v. Pennsylvania Board of Probation and Parole, 834 A.2d 1210, 1212 

n.6 (Pa. Cmwlth. 2003).
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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), contending that the appeal is 

meritless.

Where, as here, counsel concludes that a petitioner’s appeal is meritless, 

counsel may be permitted to withdraw from representation if counsel: (1) notifies the 

petitioner of the request to withdraw; (2) furnishes the petitioner with a copy of a nomerit letter satisfying the requirements of Turner; and (3) advises the petitioner of his 

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

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

When counsel seeks to withdraw under Turner, our Supreme Court has held that 

counsel may fulfill his/her responsibilities by providing a no-merit letter that details 

the nature and extent of the counsel’s review, identifies each issue the petitioner wishes 

to raise, and explains why counsel concludes those issues are meritless. 544 A.2d at 

928. Once counsel has fully complied with the technical requirements for withdrawal, 

the Court will independently review the merits of the petitioner's claims. Miskovitch, 

77 A.3d at 70.

Here, the record reflects that, in his Turner no-merit letter, Counsel 

informed Petitioner of Counsel’s request to withdraw, provided Petitioner with a copy 

of the Turner letter that details Counsel’s review of the issues and the reasons why 

Counsel concluded those issues are meritless, and advised Petitioner of his right to 

retain new counsel or raise any new points he might deem worthy of consideration. 

(Application For Leave to Withdraw, 10/9/2019; Turner Letter, 9/5/2019). Because 

Counsel has satisfied the procedural requirements to withdraw, the Court will 

independently review the issues raised to determine whether the appeal is, in fact, 

without merit. An appeal is without merit when it lacks any basis in law or fact. 

Commonwealth v. Santiago, 978 A.2d 349, 356 (Pa. 2009).
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First, Petitioner argues that the Board erred in failing to provide him with 

credit on his original sentence, i.e., the Dauphin County Sentence, from July 28, 2017,

which was the date he was paroled on the Dauphin County Sentence to a state detainer 

to commence service on the York County Sentence. In other words, Petitioner 

contends that he is entitled to credit on his first sentence while he was “constructively 

paroled” from that sentence and, while still incarcerated, began serving time on his 

second sentence. 

We disagree. The legal term “constructive parole” describes the situation 

that occurs where a petitioner is released on parole from one sentence, usually after 

completing the minimum term, but is not released from confinement, and then 

commences serving a second unrelated sentence. Hines v. Pennsylvania Board of 

Probation and Parole, 420 A.2d 381, 383 (Pa. 1980); Spruill v. Pennsylvania Board of

Probation and Parole, 158 A.3d 727, 730 (Pa. Cmwlth. 2017). Under prevailing case 

law, the petitioner is considered to be “at liberty” from that first sentence despite being 

held in custody as a result of a separate and unrelated sentence. Spruill, 158 A.3d at 

730. Our Supreme Court has explained that although a petitioner “who is on 

constructive parole is at liberty on parole on that particular sentence,” the petitioner “is 

not entitled to credit against his original sentence for his time spent on constructive 

parole.” Merritt v. Pennsylvania Board of Probation and Parole, 574 A.2d 597, 598 

(Pa. 1990); see Cox v. Pennslyvania Board of Probation and Parole, 493 A.2d 680, 

683 (Pa. 1985). Instead, time spent in custody serving the second sentence may only 

be credited against that sentence. Spruill, 158 A.3d at 731 (citations omitted). 

Applying these legal principles, we conclude that the Board did not err in 

failing to provide Petitioner with credit on the original, Dauphin County Sentence for 
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the days he spent in confinement while on constructive parole and serving the York 

County Sentence. Petitioner’s argument to the contrary lacks merit. 

Next, Petitioner asserts that the Board erred in extending his maximum 

sentence date and failing to provide him with any credit for days he spent at liberty on 

parole because he was recommitted as a CPV. 

In 2012, our General Assembly amended the Prisons and Parole Code 

(Parole Code) and added section 6138(a)(2.1), 61 Pa.C.S. §6138(a)(2.1), which vests 

the Board with discretion to grant a CPV with credit for time spent at liberty on parole. 

See Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 469 (Pa. 

2017). This provision states, in relevant part: “The [B]oard may, in its discretion, 

award credit to a parolee recommitted [as a CPV] for the time spent at liberty on 

parole,” unless the parolee commits a crime enumerated in the statute. 61 Pa.C.S. 

§6138(a)(2.1). In Pittman, our Supreme Court concluded that if the Board exercises 

its discretion pursuant to section 6138(a)(2.1) and denies credit, it “must provide a 

contemporaneous statement explaining its reason for denying a CPV credit for time 

spent at liberty on parole.” Id. at 475. The Supreme Court observed that the Board’s 

statement need not “be extensive and a single sentence explanation is likely sufficient 

in most instances.” Id. at 475 n.12.

In Smoak v. Talaber, 193 A.3d 1160 (Pa. Cmwlth. 2018), this Court 

determined that the Board's five-word reason for denying credit for street time—

“unresolved drug and alcohol issues”—was “just barely sufficient” to satisfy Pittman’s 

contemporaneous statement requirement. Id. at 1164-65. In other cases, we have 

concluded that the following reasons provided by the Board were adequate and 

complied with Pittman: “conviction involved possession of a weapon”; “prior history 

of supervision failures” and “unresolved drug and alcohol issues”; “third firearm 
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conviction”; and “extensive history of illegal drug involvement” and “new drug-related 

conviction.” Marshall v. Pennsylvania Board of Probation and Parole, 200 A.3d 643,

650-51 (Pa. Cmwlth. 2018). 

Here, the Board decided not to award Petitioner credit as a CPV for time 

spent at liberty on parole because Petitioner sustained a “New conviction same/similar 

to the original offense,” i.e., retail theft, (C.R. at 114), and displayed “poor adjustment 

under supervision.” (C.R. at 134.) Consistent with our case law, we conclude that the 

Board articulated sufficient reasons for denying Petitioner credit. Petitioner’s 

argument is therefore meritless. 

Finally, in conducting our independent review, we note that the Board 

properly awarded Petitioner four days of credit on his original sentence for time he 

spent incarcerated in the Cumberland County Prison solely on the Board’s detainer, 

from September 6, 2018, to September 10, 2018, until the prosecuting authorities filed 

new criminal charges. See Martin v. Pennsylvania Board of Probation and Parole, 

840 A.2d 299, 307 (Pa. 2003). After Petitioner did not post bail on new criminal 

charges, the trial judge correctly credited Petitioner for the time he spent incarcerated 

on the new criminal charges awaiting trial to the date he was sentenced to the 

Cumberland County Prison. See Hall v. Pennsylvania Board of Probation and Parole, 

733 A.2d 19, 21-22 (Pa. Cmwlth. 1999). Moreover, when the trial judge in the 

Cumberland County case paroled Petitioner to his state detainer on February 12, 2019, 

Petitioner became available to serve his original sentence on that date. See section 

6138(a)(5)(iii) of the Parole Code, 61 Pa.C.S. §6138(a)(5)(iii). Because the Board did 

not award Petitioner with credit for time spent at liberty on parole, and Petitioner owed 

1,090 days on his original sentence as of the date of his availability, the Board did not 

err in adding this amount to February 12, 2019, and correctly calculated Petitioner’s 
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new maximum sentence date as February 6, 2022. See Armbruster v. Pennsylvania 

Board of Probation and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). Therefore, 

we conclude, based upon our independent review, that there are no legal issues that are 

potentially meritorious. 

Having determined that the issues raised and implicated in this appeal lack 

any basis in law and/or fact, we affirm the Board’s order and grant Counsel’s and the 

Application for Leave to Withdraw. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Faircloth, :

Petitioner :

: No. 796 C.D. 2019

v. :

:

Pennsylvania Board of :

Probation and Parole, :

Respondent :

ORDER

AND NOW, this 27th day of January, 2020, the May 29, 2019 order of 

the Pennsylvania Board of Probation and Parole is hereby affirmed, and the 

Application for Leave to Withdraw filed by Nicholas E. Newfield, Esquire, is 

granted. 

________________________________

PATRICIA A. McCULLOUGH, Judge