Opinion
No. 439 C.D. 2014
05-07-2015
Kenneth A. Bellamy, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Assistant Public Defender for Somerset County, Marc T. Valentine, Esquire, has filed an application to withdraw his representation of Kenneth A. Bellamy, an inmate at the State Correctional Institution at Somerset, in Bellamy's appeal from the order of the Pennsylvania Board of Probation and Parole (Board). The Board's order denied Bellamy's request for administrative relief from the order recommitting him as a convicted parole violator and recalculating his maximum parole expiration date. Because we find Bellamy's appeal lacks merit, we grant counsel's application and affirm the Board's order.
The record reveals the following pertinent facts. On February 18, 2003, Bellamy was sentenced to serve 5 years and 6 months to 11 years of imprisonment for his conviction of drug-related offenses. His maximum sentence date was February 21, 2013. He was released on parole on July 28, 2008, after signing "Conditions Governing Parole/Reparole." He was required, inter alia, to abstain from the unlawful possession or sale of narcotics and dangerous drugs. He was warned: "If you are convicted of a crime while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were serving when paroled/reparoled, with no credit for time at liberty on parole." Certified Record (C.R.) at 12.
Bellamy was arrested on February 8, 2010, and was convicted of possession of a controlled substance and drug paraphernalia. In a decision recorded on January 13, 2011, the Board recommitted him as a convicted parole violator to serve 9-months backtime on the 2003 sentence and recalculated his maximum parole expiration date to April 20, 2015. He was reparoled on November 22, 2011, after signing the parole conditions.
On October 6, 2012, the Board lodged a detainer against Bellamy after he was arrested and charged with new criminal offenses. On July 15, 2013, he pleaded guilty to possession of a controlled substance with intent to deliver in the Court of Common Pleas of Lehigh County and was sentenced to serve 2 to 5 years of imprisonment. He waived a parole revocation hearing. In a decision recorded on August 30, 2013, the Board recommitted him as a convicted parole violator to serve 24-months backtime and recalculated his maximum parole expiration date to January 23, 2017. Bellamy filed a request for administrative relief, arguing that the Board did not have the authority to change the maximum sentence imposed by the court in 2003. The Board denied the request.
Bellamy then filed a "petition for writ of mandamus and/or extraordinary relief." This Court treated his petition as a petition for review addressed to this Court's appellate jurisdiction and appointed the Public Defender of Somerset County to represent him in his appeal. The court-appointed counsel subsequently filed an application to withdraw his representation, stating that he concluded that Bellamy's appeal is frivolous. Counsel informed Bellamy of his conclusion and the filing of the application to withdraw. Counsel also filed a "no-merit letter," as required by Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), in which he addressed all the issues raised by Bellamy, and served a copy of the letter upon Bellamy. The Court advised Bellamy to obtain substitute counsel at his own expense or file a brief himself. Bellamy filed a pro se brief.
It is well established that an indigent parolee's right to assistance of counsel does not entitle the parolee to representation by appointed counsel to prosecute a frivolous appeal. Presley v. Pa. Bd. of Prob. & Parole, 737 A.2d 858, 860 (Pa. Cmwlth. 1999). Consequently, court-appointed counsel may seek to withdraw representation of the parolee if counsel concludes, after a conscientious review of the record, that the appeal lacks merit. Id. at 860-61. An appeal is considered to be frivolous when it completely lacks factual or legal reasons which might arguably support the appeal. Id. at 861 n.2. In considering counsel's request to withdraw representation, we conduct a full examination of the record and make an independent judgment as to whether the appeal in fact lacks merit. Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009); Presley, 737 A.2d at 861 n.2.
Bellamy first argues that the maximum 11-year sentence imposed by the court in 2003 expired on February 21, 2013 and that the Board did not have authority and jurisdiction to change the court's sentence and recalculate the maximum parole expiration date to January 23, 2017.
Parole is a penological device to assist prisoners to reintegrate into society. Young v. Bd. of Prob. & Parole, 409 A.2d 843, 847 (Pa. 1979). The effectiveness of parole is dependent upon the state's power to impose reasonable parole conditions. Id. A parole revocation is an administrative determination that the parolee should be recommitted to serve all or part of the unexpired term of the original sentence. Rivenbark v. Pa. Bd. of Prob. & Parole, 501 A.2d 1110, 1113 (Pa. 1985). A recommitment of the parolee is not a second punishment for the conviction and has no effect on the judicially imposed sentence. Id.
Contrary to Bellamy's argument, the Board had the statutory authority to recommit him as a convicted parole violator to serve the remainder of the 2003 sentence imposed by the court. Section 6138(a)(1) and (2) of the Prisons and Parole Code (Parole Code), as amended, 61 Pa. C.S. § 6138(a)(1) and (2), provides in pertinent part:
The Parole Code, enacted effective October 13, 2009, replaced the Act of August 6, 1941, P.L. 861, commonly known as the Parole Act, formerly 61 P.S. §§ 331.1 - 331.34a, repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147. --------
(a) Convicted violators.—
(1) A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.
(2) If the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and ... shall be given no credit for the time at liberty on parole [unless the Board, in its discretion, decides to award such
credit]. [Emphasis added.]
Thus, upon recommitment as a convicted parole violator, a parolee forfeits all credits for time spent while on parole and reparole. Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011). The Board must recalculate a new maximum parole expiration date of the recommitted parolee by adding the forfeited time to the original maximum parole expiration date. Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). Backtime imposed by the Board may not exceed the remaining balance of the parolee's unexpired judicially imposed sentence. Savage v. Pa. Bd. of Prob. & Parole, 761 A.2d 643, 645 (Pa. Cmwlth. 2000). In this matter, Bellamy returned to the Board's custody on August 27, 2013, following his July 15, 2013 conviction and had 3 years, 4 months and 29 days remaining on the 2003 sentence. C.R. at 83. The Board's recalculation of his maximum parole expiration date to January 23, 2017 reflected that he was not given a credit for the time spent on parole and reparole, pursuant to Section 6138(a)(2) of the Parole Code.
Despite the clear language in Section 6138(a)(2) of the Parole Code, Bellamy argues that he should be given a credit for the time spent on parole and reparole because he was still in the Board's control and custody and was not able to enjoy the same rights as a free man. To support his argument, he cites Commonwealth ex rel. Banks v. Cain, 28 A.2d 897 (Pa. 1942). In Cain, the Court distinguished a pardon from a parole, stating that unlike a pardoned offender who is completely freed from the state's control, a parolee "remains in the legal custody of the state and under the control of its agents." Id. at 899. He also cites Commonwealth v. Chiappini, 782 A.2d 490 (Pa. 2001), overruled in part by Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005), holding that the time spent in home confinement in an electronic monitoring program was "time spent in custody" under Section 9760(1) of the Sentencing Code, as amended, 42 Pa. C.S. § 9760(1). Section 9760(1) requires a sentencing court to give a defendant a credit "for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal" against the maximum and minimum terms of sentence.
Contrary to Bellamy's assertion, he was not in the "custody" of the Board and did not serve the 2003 sentence imposed by the court, while on parole and reparole. In Young, our Supreme Court rejected the similar argument that the denial of credit for time spent on parole represented an increase of the judicially imposed sentence. The Court distinguished the judicial power to impose sentence from the legislature's power to establish penological measures to effectuate a rehabilitation of the prisoner during the period of judicially mandated custody. Young, 409 A.2d at 846-47. The Court stated:
The fallacy of appellant's position is the attempt to equate time served on parole with time served in an institution. "Mere lapse of time without imprisonment ... does not constitute service of sentence." ... To attempt to equate a parole status with that of custody is to ignore reality. "[T]he liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty ...[.]"Id. at 846 (citation omitted). Further, Section 9760 of the Sentencing Code, relied on by Bellamy, applies to the court's sentencing in criminal proceedings, not to the Board's recalculation of the maximum parole expiration date upon the parolee's recommitment.
Bellamy further argues that the Board's recalculation of the maximum parole expiration date violated his due process rights and the prohibition against double jeopardy and cruel and unusual punishment. The statutory provision denying credit for time spent on parole, however, represents a reasonable exercise of the penological responsibility and does not violate constitutional due process, equal protection and the prohibitions against double jeopardy, bills of attainder, cruel and unusual punishment, and ex post facto laws. Young, 409 A.2d at 847 n.8; Commonwealth ex rel. Rambeau v. Rundle, 314 A.2d 842, 847 (Pa. 1973); Choice v. Pa. Bd. of Parole, 448 F.Supp. 294, 298 (M.D. Pa. 1977).
After a full examination of the record, we conclude that Bellamy's appeal is in fact without merit. Accordingly, we grant counsel's application to withdraw his representation and affirm the Board's order.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of May, 2015, the application of Marc T. Valentine, Esquire, to withdraw his representation of Petitioner, Kenneth A. Bellamy, is GRANTED. The order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge