IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shareema Moore, :

Petitioner :

:

v. : No. 411 C.D. 2018

: Submitted: September 14, 2018

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 JUDGE BROBSON FILED: December 6, 2018

Petitioner Shareema Moore1(Moore) petitions for review of an order 

of the Pennsylvania Board of Probation and Parole (Board). The Board denied 

Moore’s petition for administrative relief, in which she sought to challenge the 

Board’s recalculation of her maximum sentence date. Moore’s counsel, R. Benjamin 

Sperry, Esquire (Counsel), filed a motion to withdraw as counsel. Counsel asserts, 

as expressed in his “no-merit” letter, that the issues Moore raises in her petition for 

review are without merit. We now grant Counsel’s motion to withdraw as counsel

and affirm the order of the Board. 

 

1 Petitioner is also known as Nichola Hewlett, and the certified record includes references 

to Petitioner as both Shareema Moore and Nichola Hewlett.
2

Moore had been incarcerated at a State Correctional Institution when 

the Board granted her parole and released her on March 21, 2014. (Certified Record 

(C.R.) at 30.) At the time of her parole, Moore had a maximum sentence date of 

March 3, 2017. (Id. at 38.) On January 19, 2015, the Pennsylvania State Police 

arrested Moore and charged her with several offenses related to an incident involving 

retail theft and aggravated assault. (Id. at 43.) On that same date, the Board issued 

a detainer against Moore. (Id. at 50.) By Board action recorded on

February 19, 2015, the Board recommitted Moore as a Technical Parole Violator to 

serve 6 months at a State Correctional Institution. (Id. at 54.) Moore posted bail on 

August 24, 2015. (Id. at 145.) On October 27, 2016, the Court of Common Pleas of 

Delaware County accepted Moore’s plea of nolo contendere on a charge of robbery. 

(Id. at 91.) The sentencing judge sentenced Moore to a maximum of no more than 

“2 years less a day.” (Id. at 85.) The sentencing order provides that Moore shall 

receive “no credit for time served up to [October 28, 2016].” (Id.) By Board action 

recorded on January 31, 2017, the Board recommitted Moore as a Convicted Parole 

Violator to serve 36 months or her unexpired term, whichever is less, concurrently, 

when available, upon Moore’s completion of parole from her county sentence and 

her return to a State Correctional Institution. (Id. at 108.) Moore was returned to 

the custody of a State Correctional Institution on September 11, 2017. (Id. at 113.) 

By Board action recorded on September 29, 2017, the Board recalculated Moore’s 

maximum sentence date to June 21, 2019. (Id.) 

Moore then filed an administrative appeal from the Board’s decision. 

(Id. at 115.) In that appeal, Moore challenged the Board’s calculation of her 

sentence, alleging, inter alia, that she should have received credit to her new 

sentence for the period beginning on January 19, 2015, pending the resolution of her 
3

criminal charges. (Id. at 116-17.) The Board denied Moore’s administrative appeal, 

reasoning:

The [B]oard paroled you to your state detainer 

sentence on March 21, 2014 with a max date of 

March 3, 2017. This left you with a total of 1078 days 

remaining on your sentence at the time of parole. The 

Board’s decision to recommit you as a convicted parole 

violator authorized the recalculation of your sentence to 

reflect that you receive[d] no credit for the time you were 

at liberty on parole. 61 Pa. C.S. § 6138(a)(2). In this case, 

the [B]oard did not award you credit for time at liberty on 

parole. This means you still had a total of 1078 days 

remaining on your sentence based on your recommitment.

On January 19, 2015 the [B]oard lodged its detainer 

against you. Also on January 19, 2015 you were arrested 

for new criminal charges in the Court of Common Pleas of 

Delaware County at docket number 1022-2015. You 

posted bail on August 24, 2015. You were sentenced on 

October 27, 2016 to a county term and granted parole on 

September 11, 2017. 

Based on these facts, the [B]oard awarded you 

backtime credit from August 24, 2015 to October 27, 2016 

(430 days). Subtracting this 430 days, means you still had 

a total of 648 days remaining on your original sentence.

The Prisons and Parole Code[2] provides that 

convicted parole violators who are paroled from a state 

correctional institution and then receive a county sentence 

of confinement on their new charges will not become 

available to commence service of the original sentence 

until parole from, or completion of the county sentence. 

In this case September 11, 2017 is your effective date 

because that is when you were paroled from your 

Delaware County charges at 1022-2015. Adding 648 days 

to that date yields a new maximum date of June 21, 2019[.] 

(Id. at 145-46.) Moore then filed a petition for review in this Court. 

 

2

61 Pa. C.S. §§ 101-6309. 
4

We begin by addressing Counsel’s request to withdraw from 

representation of Moore. When no constitutional right to counsel is involved in a 

probation and parole case, an attorney seeking to withdraw from representing a 

prisoner may file a no-merit letter, as compared to an Anders brief.3 In Hughes v. 

Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this 

Court held that a constitutional right to counsel in a probation and parole matter 

arises only when the prisoner’s case includes:

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

alleged 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.” 

Hughes, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). 

Moore has not suggested that she did not commit the underlying crimes of her new 

criminal conviction, nor does she suggest reasons constituting justification or 

 

3

In Anders v. California, 386 U.S. 738 (1967), the Supreme Court of the United States 

held that in order for a criminal defendant’s counsel to withdraw from representing his client in an 

appeal, the counsel must assert that the case is completely frivolous, as compared to presenting an 

absence of merit. An appeal is completely or “wholly” frivolous when there are no factual or legal 

justifications that support the appeal. Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758, 761 (Pa. 

Cmwlth. 1985). In seeking to withdraw, counsel must submit a petition to withdraw and a brief 

“referring to anything in the record that might arguably support the appeal.” Cmwlth. v. 

Baker, 239 A.2d 201, 202 (Pa. 1968) (citing Anders, 386 U.S. at 744). The Supreme Court of 

Pennsylvania, however, has held that in matters that are collateral to an underlying criminal 

proceeding, such as parole matters, a counsel seeking to withdraw from his representation of a 

client may file a “no-merit” letter that includes information describing the extent and nature of the 

counsel’s review, listing the issues the client wants to raise, and informing the court of the reasons 

why counsel believes the issues have no merit. Cmwlth. v. Turner, 544 A.2d 927, 928-29 

(Pa. 1988). 
5

mitigation for her new criminal conviction. Thus, Moore only has a statutory right 

to counsel under Section 6(a)(10) of the Public Defender Act.4

In order to satisfy the procedural requirements associated with no-merit 

letters, counsel must: (1) notify the parolee that he has submitted to the Court a 

request to withdraw; (2) provide the parolee with a copy of counsel’s no-merit letter; 

and (3) advise the parolee that he has the right to obtain new counsel and to submit 

to the Court a brief of his own, raising any arguments that he may believe are 

meritorious.5 Reavis v. Pa. Bd. of Prob. and Parole, 909 A.2d 28, 33 

(Pa. Cmwlth. 2006). In seeking to withdraw, this Court has consistently required an 

attorney to include the following descriptive information in a no-merit letter: (1) the 

nature and extent of counsel’s review of the case; (2) the issues the parolee wants to 

raise; and (3) the analysis counsel used in reaching his conclusion that the issues are 

meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). Before 

evaluating the merits of Moore’s challenge, we must first evaluate Counsel’s 

no-merit letter to determine whether it complies with the requirements for 

withdrawal applications. 

In her petition for review, Moore challenged the Board’s recalculation 

of her sentence because she did not receive credit for the period between 

January 19, 2015, and August 24, 2015—the date Moore was arrested until the date 

she posted bail. Counsel’s no-merit letter adequately identifies this issue, discusses 

his review of Moore’s case, and describes his analysis in reaching his conclusion 

that this issue as brought before this Court has no merit. Further, Counsel provides 

 

4 Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).

5 Counsel served Moore with his motion for leave to withdraw and his no-merit letter. In 

the no-merit letter, Counsel advised Moore of her right to retain counsel and to file a brief on her 

own behalf. Thus, Counsel has complied with these requirements. 
6

a satisfactory summary of Moore’s parole and conviction history as it relates to her 

underlying challenge. Counsel’s no-merit letter, therefore, meets the requirements 

set forth in Zerby. We will now address the question of whether Counsel is correct 

that Moore’s appeal lacks merit.

In his no-merit letter, Counsel refers the Court to Commonwealth v. 

Mann, 957 A.2d 746 (Pa. Super. 2008), where the Superior Court discussed, inter 

alia, the precedent from the Supreme Court concerning credit for time served. Mann

is one case in a line of cases that expound on Gaito v. Pennsylvania Board of 

Probation and Parole, 412 A.2d 568 (Pa. 1980), which sets forth the general rule 

concerning allocation of credit for convicted parole violators who receive new 

sentences. In Gaito, our Supreme Court stated: 

[I]f a defendant is being held in custody solely because of 

a detainer lodged by the Board and has otherwise met the 

requirements for bail on the new criminal charges, the time 

which he spent in custody shall be credited against his 

original sentence. If a defendant, however, remains 

incarcerated prior to trial because he has failed to satisfy 

bail requirements on the new criminal charges, then the 

time spent in custody shall be credited to his new sentence. 

Gaito, 412 A.2d at 571 (emphasis added). 

Our Supreme Court developed a narrow exception to the rule set forth 

in Gaito, applicable when the pre-sentence confinement is longer than the maximum 

term of the new sentence, which provides: “[W]here an offender is incarcerated on 

both a Board detainer and new criminal charges, all time spent in confinement must 

be credited to either the new sentence or the original sentence.” Martin v. Pa. Bd. 

of Prob. and Parole, 840 A.2d 299, 309 (Pa. 2003). Accordingly, where a defendant 

is awaiting sentencing and is confined under both the Board’s warrant and new 

criminal charges, that period of confinement should be allocated to the new criminal 
7

sentence, so long as the period of confinement is shorter than the maximum term of 

the new sentence. Hammonds v. Pa. Bd. of Prob. and Parole, 143 A.3d 994, 998-99 

(Pa. Cmwlth. 2016). “[W]hen it is not possible to award all of the credit to the new 

sentence because the period of pre-sentence incarceration exceeds the maximum 

term of the new sentence, credit must be applied to the parolee’s original sentence.” 

Id. at 998.

Analyzing the matter before the Court based upon the framework set 

forth above, it is clear that the Board was required to credit Moore’s original 

sentence 430 days for the time period from August 24, 2015 (i.e., the date on which 

she posted bail), to October 27, 2016 (i.e., the date on which she was sentenced on 

her new criminal charges), because during that time period she was held in custody 

only on the Board’s detainer. The Board, in fact, credited Moore for that time. 

Moore, however, appears to argue that the Board should have credited Moore for the 

time that she was in custody from January 19, 2015, through August 24, 2015, when 

she was being held both on the Board’s detainer and because she failed to post bail. 

Under Gaito and Martin, the Board was not required to credit Moore for that period 

of approximately seven months between January 19, 2015, and August 24, 2015, 

because the period of time was less than the period of her sentence for her new 

conviction. Under Gaito and Martin, any credit to which Moore may have been 

entitled for that period should have been credited to the sentence on her new criminal 

conviction. When sentencing Moore on her new criminal conviction, however, the 

sentencing judge expressly declined to credit Moore on her new sentence for any 

time served up to and including her date of sentence. (C.R. at 85.) 

Challenges concerning the failure to award a defendant credit on a new 

sentence for time served prior to trial on the charges relating to that sentence, 
8

however, concern the legality of the sentence. Cmwlth. v. Hollawell, 604 A.2d 723, 

725 (Pa. Super. 1992). “[A] challenge to the legality of a sentence is properly raised 

before the sentencing court or on direct appeal to the Superior Court.” Aviles v. Pa. 

Dep’t of Corr., 875 A.2d 1209, 1214 (Pa. Cmwlth. 2005). A defendant may also 

seek redress under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-9546, for the 

imposition of a sentence that is greater than lawfully permissible.

6

Based on the above discussion, Moore’s challenge of the Board’s 

failure to award her credit for the time she was in custody before sentencing is a 

challenge to the legality of the sentence, which must be addressed by the common 

pleas court or on appeal to the Superior Court. Thus, we agree with Counsel that 

Moore’s challenge before this Court to the Board’s recalculation of her maximum 

sentence date has no merit. 

Accordingly, we will grant Counsel’s motion to withdraw. Moreover, 

because we have concluded that the Board correctly dismissed Moore’s petition for 

administrative relief, we conclude that her petition for review lacks merit. We, 

therefore, affirm the order of the Board.

P. KEVIN BROBSON, Judge

 

6 Moreover, while the Department of Corrections has a duty to credit inmates “for all 

statutorily mandated periods of incarceration,” the Department of Corrections, as part of the 

executive branch, “lacks the power to adjudicate the legality of a sentence or to add or delete 

sentencing conditions.” McCray v. Pa. Dep’t of Corr., 872 A.2d 1127, 1133 (Pa. 2005). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shareema Moore, :

Petitioner :

:

v. : No. 411 C.D. 2018

:

Pennsylvania Board of :

Probation and Parole, :

Respondent :

O R D E R

AND NOW, this 6

th day of December, 2018, the motion to withdraw as 

counsel filed by R. Benjamin Sperry, Esquire, is GRANTED, and the order of the 

Pennsylvania Board of Probation and Parole is AFFIRMED.

P. KEVIN BROBSON, Judge