IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Ivory, :

Petitioner :

:

v. :

:

Pennsylvania Parole Board, : No. 1380 C.D. 2022

Respondent : Submitted: October 10, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: November 17, 2023

Mark Ivory (Ivory) petitions for review from the November 16, 2022 

order of the Pennsylvania Parole Board (Board), which denied his challenge to the 

Board’s recalculation of his parole violation maximum sentence date. Ivory is 

represented by Victoria Hermann, Esquire (Counsel), who has filed a Motion to 

Withdraw As Counsel (Motion to Withdraw) asserting that Ivory’s Petition for 

Review is without merit and seeks permission to withdraw as counsel. For the 

following reasons, we deny the Motion to Withdraw.

I. Background

On February 7, 2013, Ivory received a sentence of 4 to 15 years of 

incarceration following convictions for possession of a controlled substance with 
2

intent to deliver1 and conspiracy to commit the same (the Original Sentences).

2

 See

Certified Record (C.R.) at 1, 3. After receiving credit for pre-sentence incarceration, 

Ivory’s minimum and maximum sentence dates on the Original Sentences were

December 1, 2015, and December 1, 2026, respectively. See C.R. at 1. Ivory was 

released on parole from the Original Sentences on March 5, 2019.3 See id. at 4.

On December 11, 2019, the Board issued a Warrant to Commit and 

Detain (First Warrant) based on Ivory’s multiple technical parole violations. See 

C.R. at 15. On December 24, 2019, Ivory was recommitted to serve six months as 

a technical parole violator (TPV) with automatic reparole on June 11, 2020. See id.

at 18-22. 

Following Ivory’s reparole on June 11, 2020, on January 13, 2021, the 

Board issued a second Warrant to Commit and Detain (Second Warrant) based on 

Ivory’s arrest on new drug charges. See C.R. at 25-27. On September 17, 2021, 

Ivory was convicted of the new drug charges and sentenced to 30 to 60 months of 

incarceration (New Conviction). See id. at 27. By decision dated October 14, 2021

(October 2021 Board Decision),

4

the Board ordered Ivory to serve 36 months’

backtime5as a convicted parole violator (CPV). See C.R. at 67-70. The October 

1 Section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act, Act of 

April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30).

2

18 Pa.C.S. § 903. Ivory’s conspiracy sentence was to be served concurrently to the 

possession with intent to deliver sentence. See Certified Record (C.R.) at 1.

3

Ivory was granted parole by Board Decision recorded on November 29, 2018. See C.R. 

at 4, 6. His actual date of release, however, was March 5, 2019. See id. at 15.

4

Ivory waived his revocation hearing. See C.R. at 29. 

5

“Back[time] is that part of an existing judicially imposed sentence which the Board directs 

a parolee to complete following a finding . . . that the parolee violated the terms and conditions of 
3

2021 Board Decision also noted that the recommitment was ordered pending the 

resolution of separate new charges in Blair County (Blair County Charges). See C.R. 

at 67.

Ultimately, by separate Board Decision recorded June 9, 2022 (June 

2022 Board Decision), the Board denied Ivory credit for time spent at liberty on 

parole due to the similarity between his original Pennsylvania conviction and the 

New Conviction. See C.R. at 71. The June 2022 Board Decision further noted 

Ivory’s intervening conviction for the Blair County Charges, but determined that no 

further action would be taken as to that conviction. See C.R. at 71. Ivory filed a pro 

se administrative appeal that sought to have the Board reconsider his recalculated 

maximum sentence and its decision not to award him credit for time spent at liberty 

on parole.6 See C.R. at 57-67. Ivory argued that the Board lacked the authority to 

deny him credit for time spent at liberty on parole where the October 2021 Board 

Decision had not denied such credit and where the June 2022 Board Decision 

parole . . . .” Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496, 499 (Pa. Cmwlth. 2012); see also

37 Pa. Code § 61.1 (Backtime is “[t]he unserved part of a prison sentence which a convict would 

have been compelled to serve if the convict had not been paroled.”).

6

Ivory accomplished his administrative appeal through multiple documents/filings: First, 

by letter dated November 5, 2021, Ivory expressed to the Board his desire to appeal the Board’s 

October 2021 Board Decision. See C.R. at 73. In the letter, Ivory explained that the restrictions 

attendant to the COVID-19 quarantine block in which he was then housed prevented him from 

filing a proper appeal and further that he intended to file a proper request for administrative relief 

upon his release from COVID-19 quarantine and his return to his home jail. See id. On December 

1, 2021, Ivory completed and filed an administrative remedies form seeking relief from his 

recommitment as ordered by the October 2021 Board Decision. See id. at 75. Thereafter, on 

January 31, 2022, Ivory’s attorney filed an administrative remedies form alleging that Ivory was 

not granted credit for time served, presumably by the October 2021 Board Decision. See id. at 77. 

Following the issuance of the June 2022 Board Decision, Ivory filed another administrative 

remedies form on July 18, 2022, claiming the Board erred in the June 2022 Board Decision by 

denying him credit for time spent at liberty on parole where the June 2022 Board Decision 

indicated that no further action would be taken as to the Blair County Charges. See id. at 79.
4

indicated that no further action would be taken as to the Blair County Charges. See

C.R. at 79, 81-82. 

By letter mailed November 16, 2022, the Board denied Ivory’s

administrative appeal. See C.R. at 70-71. Later, in affirming the October 2021 

Board Decision and June 2022 Board Decision, the Board explained:

[Ivory’s] administrative appeal . . . seeks relief from the 

36-month recommitment term. The [October 2021 Board 

Decision] recommitted Ivory to serve 36 months for the 

offense of Manufacture, Delivery, or Possession with 

Intent to Manufacture or Deliver Heroin (F) ([]PWID[]) 

which carries a presumptive range of 24 to 36 months, as 

outlined in 37 Pa. Code §§ 75.1-75.2.

[7]

 Because the 36-

month term falls within that range, it is . . . not subject to 

challenge. Smith v. [Pa. Bd.] of Prob[. &] Parole, 574 

A.2d 558 (Pa. 1990)[.]

[I]n the pro se administrative remedies form received on 

July 18, 2022 (postmarked 7/14/2022), Ivory claims the 

Board erred in denying him credit for the time spent at 

liberty on parole. The decision on whether to grant or deny 

a CPV credit for time at liberty on parole is purely a matter 

of discretion. The Prisons and Parole Code[8]authorizes 

the Board to grant or deny credit for time at liberty on 

parole for certain criminal offenses. 61 Pa.C.S. § 

6138(a)(2.1). Pursuant to the Supreme Court’s ruling in 

Pittman v. [Pennsylvania Board of Probation & Parole, 

159 A.3d 466, 474 (Pa. 2017),], the Board must articulate 

7 Section 75.1 of Pennsylvania Code Title 37 provides that “presumptive ranges of parole 

backtime to be served will be utilized if a parolee is convicted of a new criminal offense while on 

parole and the Board orders recommitment as a convicted parole violator after the appropriate 

revocation hearing.” 37 Pa. Code § 75.1(a). Section 75.2 provides a 24-to-36-month presumptive 

range for felony violations of [The Controlled Substance, Drug, Device and Cosmetic Act,

Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101–780-144]. See 37 Pa. Code § 

75.2.

8

61 Pa. C.S. §§ 101-6309.
5

the basis for its decision to grant or deny a CPV credit for 

time spent at liberty on parole. In this case, the Board 

articulated that Ivory was denied such credit because his 

new conviction was the same or similar in nature to his 

original crimes. Considering that he was on parole for 

PWID and Criminal Conspiracy to Commit PWID[] and 

that he suffered a new conviction for PWID, the reason 

provided is sufficient and supported by the record.

C.R. at 84-85.

On December 15, 2022, Ivory, through Counsel,9filed a timely Petition 

for Review with this Court. On January 3, 2023, Counsel filed a Turner/Finley

Letter10 and the Motion to Withdraw with this Court. Thereafter, on March 17, 2023, 

the Court executed an order informing Ivory that he could either obtain substitute 

counsel at his own expense to file a brief on his behalf, or he could file a pro se brief 

on his own behalf within 30 days of the service of the order. On March 17, 2023,

Ivory filed a Motion for Change of Appointed Counsel. On March 24, 2023, Ivory 

filed a “Traverse and Rebuttal to Attorney’s Tu[r]ner/Finley Letter” (Ivory’s Brief) 

that argued Counsel misconstrued his arguments and/or confused them with the 

arguments of another client, that he was entitled to credit for time spent at liberty on 

parole, and that Counsel provided ineffective assistance of counsel. On May 8, 2023, 

9

Ivory is incarcerated and indigent and Counsel is providing free legal service on behalf 

of the Public Defender’s Office of Forest County for the purpose of the instant appeal before this 

Court. See Verification to Proceed In Forma Pauperis filed December 15, 2022.

10 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. 1988) (en banc). Counsel files such a letter when seeking to withdraw from 

representation of a parole violator because the violator’s case lacks merit, although it may not be 

“so anemic as to be deemed wholly frivolous.” Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 

1203, 1204 n.2 (Pa. Cmwlth. 2020) (quoting Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. 

Super. 2007)) (internal quotation marks omitted). Such letters go by many names in the 

Commonwealth, including “no-merit letter,” “Finley” letter, “Turner letter,” and “Turner/Finley

letter.” See Anderson, 237 A.3d at 1204 n.2.
6

the Court entered an order directing that Ivory’s Motion for Change of Appointed 

Counsel be decided with the Motion to Withdraw.

II. Issues

In the Turner/Finley Letter, Counsel identified the following issues for 

this Court’s review:11 first, that the Board unlawfully recommitted Ivory for 36 

months’ incarceration; second, that the Board erred by failing to give Ivory credit 

for time spent at liberty on parole; and third, that the Board erred by revoking a 

previously awarded credit for time spent at liberty on parole. See Pet. for Rev. at 3; 

see also Turner/Finley Letter at 1. In his brief, Ivory states that he has not received 

credit for time spent in custody awaiting trial on the New Convictions as well as not 

having received credit for time spent at liberty on parole. See Ivory’s Br. at 2. Ivory 

also argues that the Board erred by revoking a previously awarded street time credit. 

See id. at 3-4. Ivory further avers that Counsel argued claims he did not wish to raise 

and otherwise confused his case with the case of some other client and that, 

therefore, Counsel’s representation amounts to ineffective assistance of counsel. See 

id. at 1-2, 4-5.

III. Application to Withdraw

Before addressing the validity of the substantive arguments, we must 

assess the adequacy of the Turner/Finley Letter. As this Court has explained:

A Turner[/Finley] 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. As long as 

a Turner[/Finley] letter satisfies these basic requirements, 

11 Our review is limited to determining whether constitutional rights were violated, whether 

the adjudication was in accordance with law, and whether necessary findings were supported by 

substantial evidence. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).
7

we may then review the soundness of a petitioner’s request 

for relief. 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 

[sic] client.

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

(internal citations, quotation marks, and original brackets omitted). This Court has 

further explained that

[i]t is important to highlight that the purpose of a no-merit 

letter is to ensure that court-appointed counsel has 

discharged his or her duty to carefully assess any claims 

available to an indigent appellant. Furthermore, the failure 

to discharge such duty will hinder our independent 

examination of the merits of the appeal.

Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43-44 (Pa. Cmwlth. 2010)

(internal quotation marks, brackets, ellipses, and citations omitted).

Here, Counsel has not satisfied the technical requirements for a 

Turner/Finley letter. Specifically, in only two places does the Turner/Finley Letter 

arguably refer to the nature and extent of Counsel’s review. At the beginning of the 

Turner/Finley Letter, Counsel explains to Ivory that “[t]his letter is to address the 

issues you raised in your parole appeal, filed December 15, 2022.” Turner/Finley

Letter at 1 (pagination supplied). Later, Counsel prefaces her conclusion that Ivory’s 

issues lack merit by stating: “After carefully reviewing your parole appeal and 

researching the issues you have raised . . . .” Id. at 2. Neither of these statements 

adequately describes the nature or extent of Counsel’s review so as to satisfy this 
8

basic requirement of Turner/Finley letters.

12

 By failing to describe the nature and 

extent of her review, Counsel has failed to satisfy the basic technical requirements 

of a Turner/Finley letter.13 As such, we will not review the merits of Ivory’s Petition 

for Review at this time.

Accordingly, the Motion to Withdraw is denied without prejudice. 

Counsel has 30 days from the filing of this opinion to either file an amended petition 

for leave to withdraw, along with an adequate Turner/Finley letter, or submit a brief 

on the merits of Ivory’s Petition for Review and the claims raised in Ivory’s Brief.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

12 We acknowledge that, in the Motion to Withdraw, Counsel states: “I have reviewed 

[Ivory’s] request regarding the denial of his administrative relief/parole appeal and determined that 

there was no merit to the argument.” See Motion to Withdraw. In addition to not being included 

in the Turner/Finley Letter sent to Ivory, this statement fails to meaningfully detail the nature and 

extent of her review of the matter in arriving at this assessment of the merits. 

13 We observe that Ivory’s averments in his pro se brief to this Court that Counsel 

misunderstood his claims and/or has confused the facts of his case with those of another client, 

raised claims regarding the lawfulness of his recommitment and/or the Board’s authority to 

recalculate his maximum sentence that Ivory claimed not to have raised, and failed to raise Ivory’s

claim regarding credit for pre-trial detention, lend support to the notion that Counsel may have 

inadequately reviewed the matter. See Ivory Br. at 1-3.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Ivory, :

Petitioner :

:

v. :

:

Pennsylvania Parole Board, : No. 1380 C.D. 2022

Respondent :

O R D E R

AND NOW, this 17th day of November, 2023, the Motion to Withdraw 

As Counsel filed by Victoria Hermann, Esquire (Counsel), in the above-captioned 

matter is hereby DENIED without prejudice. Counsel is directed, within 30 days 

from the date of this order, to either file a renewed petition for leave to withdraw as 

counsel, along with an adequate Turner/Finley

1

letter, or submit a brief on the merits 

of Mark Ivory’s (Ivory’s) Petition for Review and the issues raised in Ivory’s pro se

“Traverse and Rebuttal to Attorney’s Tu[r]ner/Finley Letter” filed March 27, 2023.

 

__________________________________

CHRISTINE FIZZANO CANNON, Judge

1

See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. 1988) (en banc).