IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Calvin Ludy, :

Petitioner :

:

v. : No. 1219 C.D. 2018

: SUBMITTED: February 22, 2019

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: September 23, 2019

Calvin Ludy (Ludy) petitions for review of the Pennsylvania Board of 

Probation and Parole’s (Board) August 6, 2018 ruling affirming its October 4, 2017

decision.

1 The Board recommitted Ludy as a convicted parole violator (CPV) to 

serve 36 months of backtime and recalculated his maximum parole violation date as 

March 6, 2026. 

Ludy’s appointed counsel, Richard C. Shiptoski, Esquire (Counsel), has 

submitted an Amended Petition for Leave to Withdraw as Counsel (Amended 

Petition to Withdraw). Counsel contends the arguments raised in the Petition for 

Review are frivolous and without merit. 

 

1 Ludy states in his Petition for Review that he is challenging the Board’s October 4, 2017 

decision; however, we construe the Petition for Review as challenging the Board’s August 6, 2018

ruling that constitutes the final administrative determination in this matter.
2

After thorough consideration, we grant Counsel’s Amended Petition to 

Withdraw and affirm the Board’s August 6, 2018 ruling.

I. Background

On August 30, 2005, Ludy was arrested in Venango County, Pennsylvania. 

He pleaded guilty in the Court of Common Pleas of Venango County (Trial Court) 

to two counts of possession with intent to deliver a controlled substance. On August 

18, 2006, the Trial Court sentenced Ludy to an aggregate term of 4 to 11 years in 

state prison. The Board paroled Ludy on October 20, 2013. At that time, his 

maximum parole violation date was April 19, 2022.

On March 30, 2016, Ludy was arrested and charged with numerous drug 

trafficking offenses. The Board issued a detainer that same day. Ludy waived his 

right to a detention hearing before the Board, as well as his right to be represented 

by counsel at that hearing. The Board ordered him detained pending the result of 

his March 30, 2016 arrest. As Ludy was unable to make bail on these charges, he 

remained in the Venango County prison on both the new charges and the Board’s 

detainer. 

Ludy subsequently pled guilty in the Trial Court on May 6, 2017, to one count 

of possession of cocaine with intent to deliver and one count of criminal conspiracy.

On July 10, 2017, Ludy was sentenced to an aggregate sentence of 45 to 108 months 

in state prison. Ludy again waived his right to a parole revocation hearing before the 

Board, as well as his right to be represented by Counsel at the hearing. He admitted 

to the veracity of his guilty plea and resultant sentence. 

On October 4, 2017, the Board ordered Ludy to be recommitted to serve 36 

months of backtime on his 2006 sentence as a CPV. The Board recalculated his 

maximum date as March 6, 2026.
3

Ludy alleges he mailed an Administrative Remedies Form to the Board on or 

about October 11, 2017, in which he argued that the Board had unlawfully extended 

the length of his judicially imposed sentence. This Administrative Remedies Form 

is not present in the Certified Record; however, Ludy attached the October 11 Form 

as an exhibit to the Petition for Review. Petition for Review, Ex. B at 1. 

On October 31, 2017, Ludy submitted an Administrative Remedies Form in 

which he argued that the Board’s imposed backtime was excessive and that, by law, 

he should not have received more than 18 to 24 months of backtime as a consequence 

of his 2017 convictions. In addition, Ludy argued he should have been deemed to 

have started serving the backtime imposed by the Board as of July 26, 2017, the date 

he returned to a state correctional institution, rather than on September 6, 2017, the 

date of his return to custody on the Board’s order to recommit. Ludy also claimed 

he was a drug addict who was trying to turn his life around. He asked the Board to 

reconsider its initial decision in light of his professed acceptance of responsibility 

for his crimes and desire to recover from his addiction.

2

 

2 Since the October 11, 2017 Form was not in the Certified Record, or otherwise addressed 

by the Board, it created a question about whether the Board may have committed error by 

substantively addressing the issues presented in the later October 31, 2017 form rather than the 

October 11, 2017 Form. In light of our concerns regarding the absence from the Certified Record 

of the October 11, 2017 Administrative Remedies Form, we ordered the Board to conduct an 

internal review to determine whether the Board received Ludy’s alleged October 11, 2017 

submission. If it had, we directed the Board to supplement the Certified Record with all 

documentation not previously included. In addition, we directed Counsel to review the Board’s

submissions and file an Amended Petition for Leave to Withdraw as Counsel, with either a brief 

in accordance with Anders v. California, 386 U.S. 738 (1967) or a no-merit letter. 

The Board subsequently submitted a statement that Ludy’s alleged October 11, 2017 

Administrative Remedies Form was not in the Board’s possession and that all documentation 

pertaining to Ludy’s administrative challenge was contained in the Certified Record. Counsel then 

submitted his Amended Petition to Withdraw and an amended Anders Brief. We are satisfied that 

the Board substantively addressed the correct Administrative Remedies Form. There is no actual, 

verifiable proof that Ludy ever sent his alleged October 11 Form to the Board. Therefore, we find 

that the Board properly considered his October 31 Form to be his first administrative appeal.
4

The Board responded on August 6, 2018, affirming its October 2017 decision. 

The Board stated the imposed backtime was within the presumptive range for Ludy’s 

2017 convictions and was not subject to challenge. Ludy timely filed his pro se 

Petition for Review in this Court. 

This Court appointed the Luzerne County Public Defender’s Office to 

represent Ludy. After entering his appearance in this matter, Counsel filed a Petition 

for Leave to Withdraw as Counsel, along with an Anders brief.

3

In his Amended Petition to Withdraw, Counsel stated he reviewed the 

Certified Record, relevant case law, and statutes, and concluded Ludy’s Petition for 

Review was without merit and frivolous. In his amended Anders Brief, Counsel 

provided a thorough discussion of the factual circumstances that gave rise to the 

Petition for Review and then addressed each of the issues raised by Ludy. Counsel 

also sent a copy of this amended Anders Brief to Ludy, thereby informing him that 

Counsel had found the arguments raised by Ludy to be devoid of merit and 

explaining the basis for this determination.

II. Issues

In the Petition for Review, Ludy argues the Board improperly extended his 

judicially imposed 2006 sentence, thereby committing an error of law. He also 

contends the Board incorrectly declined to award him credit for time served at liberty 

on parole without providing an explanation for the decision not to do so.

 

3 Pursuant to Anders, court-appointed counsel must file a supporting brief when seeking to 

withdraw from representation in certain circumstances. See Com. v. Santiago, 978 A.2d 349, 353-

55 (Pa. 2009). An Anders Brief was unnecessary in this matter, as Ludy did not raise claims that 

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

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

However, as discussed below, Counsel’s Anders brief adequately addresses the issues necessary 

to support his withdrawal request.
5

Regarding the two arguments asserted in the Petition for Review, Counsel 

observes in his Anders Brief that Ludy did not raise those arguments at the 

administrative level before the Board. Therefore, Counsel concludes both issues are 

waived for purposes of appellate review. In any event, Counsel concludes Ludy’s 

argument that the Board improperly extended his sentence is without merit, as the 

Board is permitted by statute to impose backtime and recalculate a parole violator’s 

maximum date. Ludy’s argument that he should have credit for his street time 

similarly fails, because the Board provided a sufficient explanation in its October 4, 

2017, decision for its denial of street time credit to Ludy.

Counsel points out that Ludy did not mention in the Petition for Review his 

previously raised arguments that the backtime imposed by the Board was excessive 

and that the Board had improperly calculated the date on which Ludy started to serve 

his backtime. Counsel then addresses each of these arguments on their merits.4

Counsel notes the presumptive range for backtime imposed as a result of the crimes 

for which Ludy pleaded guilty on May 6, 2017, is between 18 and 48 months. The

Board’s imposition of 36 months of backtime falls squarely within this range and is 

therefore outside the scope of judicial review. Moreover, Counsel explains that 

Ludy’s parole hearing revocation report was not signed by the requisite number of 

panel members until September 6, 2017. Accordingly, the Board correctly concluded

that was the date on which Ludy began to serve his backtime.

 

4 This was the appropriate course of action, as “the 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.” Pa. R.A.P. 1513(d)(5).
6

III. Discussion

A. Amended Application to Withdraw

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

assess the adequacy of Counsel’s amended Anders Brief. Throughout this process,

Ludy has raised no constitutional issues. He has simply challenged the Board’s 

recalculation of his maximum date, its imposition of backtime, and its failure to 

credit him for time served at liberty on parole. Thus, Counsel was only required to 

file a no-merit letter. See Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40 (Pa. 

Cmwlth. 2010). 

“Where an Anders brief is filed when a no-merit letter would suffice, the 

Anders brief must at least contain the same information that is required to be 

included in a no-merit letter.” Id. at 42-43. “A no-merit 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.’” Id. at 43 (quoting Com. v. Turner, 544 A.2d 927, 928 (Pa. 1988)) 

(brackets omitted). As long as a no-merit letter satisfies these basic requirements, 

we will then review the soundness of a petitioner’s request for relief. Zerby v. 

Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009). 

Counsel’s amended Anders Brief satisfies these technical requirements. It 

contains a recitation of the relevant factual and procedural history, discussions of 

each argument raised by Ludy, and a thorough explanation, backed by case and 

statutory law, regarding Counsel’s conclusion that none of these arguments afford 

Ludy a valid basis for relief. Further, Counsel has appropriately provided Ludy with 

copies of these documents and informed Ludy about Counsel’s intentions. 
7

Consequently, we will proceed to an independent examination of the Petition for 

Review, in order to determine whether any of Ludy’s claims are meritorious.5

B. Sentence Calculation Issues

1. Arguments Pleaded in Petition for Review

We agree with Counsel that Ludy has waived the two arguments raised in his 

Petition for Review pertaining to the Board’s extension of his judicially imposed 

sentence and refusal to award credit for street time. Ludy failed to raise either claim 

in his October 31, 2017, Administrative Remedies Form.

6 “The law is well settled 

that issues not raised before the Board either at the revocation hearing or in the 

petitioner’s administrative appeal are waived and cannot be considered for the first 

time on appeal.” Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. 

Cmwlth. 2012).

Moreover, we agree with Counsel that even if not waived, these arguments

would have no merit. When a parolee violates the terms and conditions of his parole, 

the Board may recommit him to serve as backtime all or part of the remainder of his 

sentence. Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012). In 

imposing backtime, the Board is not altering a judicially imposed sentence; it is 

simply requiring the parolee to serve some or all of the time remaining on the original 

sentence. Id.; Berrios v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 905 C.D. 2016, 

 

5 Under Section 704 of the Administrative Agency Law, our standard of review in this 

matter is limited to determining whether the Board violated Ludy’s constitutional rights, 

committed an error of law, or made findings of fact that were not supported by substantial 

evidence. 2 Pa. C.S. § 704.

6 As explained above, Ludy claims he did argue in his alleged October 11, 2017, 

Administrative Remedies Form that the Board improperly enlarged his judicially imposed 

sentence. However, we reiterate that there is no evidence of record establishing that this Form was 

ever sent to and received by the Board.
8

filed November 30, 2017), 2017 Pa. Commw. Unpub. LEXIS 882 (unreported). So 

long as it is not adding to the total length of the sentence, the Board is authorized to 

recalculate the prisoner’s maximum sentence date to reflect the imposition of 

backtime. Hughes v. Pa. Bd. of Prob. & Parole, 179 A.3d 117 (Pa. Cmwlth. 2018).

In recalculating the maximum sentence date, the Board has discretion to deny

credit for time spent at liberty on parole, provided it states its reasons for the denial. 

61 Pa. C.S. § 6138(a)(2.1); Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466 (Pa. 

2017). Here, the Board indicated it denied credit for time spent at liberty on parole 

because of “Poor Supervision History.” Certified Record at 82. Although the Board 

need not provide an extensive statement, those three words standing alone might be 

insufficient to explain the Board’s reasoning. However, the record contains 

additional explanatory support, including a Supervision History listing 29 separate 

sanctions imposed during parole. Id. at 35. Ludy’s conduct leading to those sanctions 

included multiple positive drug tests, failure to maintain employment and report loss 

of employment, failure to comply with fee payment schedules, leaving the district 

without permission, maintaining ties with criminal acquaintances, curfew violations, 

and continued parole violations despite progressive sanctions. Id. at 34. The Board’s 

hearing report of August 2017 recommended against sentence credit for time on 

parole, stating reasons including “continued criminal behavior while on parole” and

“chronic supervision failure.” Id. at 53, 58. Thus, the record supports the Board’s 

stated reason for denying sentence credit for time on parole.

2. Arguments Allegedly Raised before the Board

Ludy contends that his backtime was excessive and calculated from an 

incorrect starting date. Counsel notes that Ludy did not raise these arguments in the 
9

Petition for Review, and then correctly determined those arguments were both 

waived and without merit. 

First, “as long as the period of recommitment is within the presumptive range 

for the violation, the Commonwealth Court will not entertain challenges to the 

propriety of the term of recommitment.” Smith v. Pa. Bd. of Prob. & Parole, 574 

A.2d 558, 560 (Pa. 1990). As noted above, Ludy pleaded guilty to possession of 

cocaine with intent to manufacture or deliver, a felony which carried a statutory 

maximum sentence of 10 years. See Sections 104(2) and 113(a)(30), (f)(1.1) of The 

Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act),

7

35 P.S. §§ 780-104(2), 780-113(a)(30), (f)(1.1). In addition, Ludy pleaded guilty to

a related charge of criminal conspiracy, also a felony. In aggregate, these convictions 

have a presumptive sentence range of 18 to 48 months. 37 Pa. Code §75.2.8 The 36

months of backtime imposed by the Board upon Ludy is within this range and thus 

beyond the scope of judicial review.9

Second, “[p]arole revocation occurs once a hearing examiner and Board 

member or two Board members sign a hearing report recommitting a prisoner[.]”

 

7 Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-104(2), 780-113(a)(30), 

(f)(1.1).

8 The Board, in its discretion, may recommit a parole violator to serve backtime based on 

each individual crime for which a violator was convicted while on parole. See, e.g., Perry v. Pa. 

Bd. of Prob. & Parole, 485 A.2d 1231, 1232 (Pa. Cmwlth. 1984). Consequently, a parole violator’s 

overall presumptive backtime maximum is calculated by aggregating the maximums for all of the 

crimes for which the violator was convicted. Corley v. Pa. Bd. of Prob. & Parole, 478 A.2d 146, 

149 (Pa. Cmwlth. 1984).

9 We also note that the amount of backtime imposed upon Ludy by the Board, 36 months 

(1,095 days), is far less than the 3,103 days left on Ludy’s 2006 sentence. See Davenport v. Pa. 

Bd. of Prob. & Parole, 656 A.2d 581, 584 (Pa. Cmwlth. 1995) (“The backtime imposed by the 

Board cannot be more than the entire remaining balance of the unexpired term which [a parole 

violator] would have been compelled to serve if he had not been paroled.”).
10

Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d 382, 392 (Pa. Cmwlth. 2019). It 

logically follows that a parolee cannot begin to serve any backtime until he has 

formally been deemed by the Board to be a parole violator. In this instance, the 

Board’s August 3, 2017 hearing report was not signed by the required second 

individual until September 6, 2017, making that the date on which Ludy could begin 

to serve the backtime imposed by the Board through its October 4, 2017 decision.

IV. Conclusion

Because Counsel’s amended Anders Brief is technically sufficient and Ludy

failed to preserve or raise any meritorious issues, we grant Counsel’s Amended 

Petition to Withdraw and affirm the Board’s August 6, 2018, ruling.

____________________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Calvin Ludy, :

Petitioner :

:

v. : No. 1219 C.D. 2018

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

AND NOW, this 23rd day of September, 2019, Richard C. Shiptoski, 

Esquire’s Amended Petition for Leave to Withdraw as Counsel is GRANTED, and 

the Pennsylvania Board of Probation and Parole’s August 6, 2018 order is 

AFFIRMED. 

ELLEN CEISLER, Judge