Opinion
No. 2358 C.D. 2008.
Submitted: May 22, 2009.
Filed: July 8, 2009.
BEFORE: SMITH-RIBNER, Judge; LEAVITT, Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
Lance Govens seeks review of the denial by the Pennsylvania Board of Probation and Parole (Board) of his request for administrative relief from a decision of the Board recommitting him as a convicted parole violator to serve six months backtime for conviction of possession with intent to deliver drugs. Kent T. Watkins, Esq., appointed counsel, has filed a petition to withdraw representation. According to the response of the Board Secretary to the administrative appeals filed by Govens and to the "no-merit letter" filed by Counsel with this Court pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), the issues that Govens seeks to raise before the Court are whether the Board lacked authority to recommit him as a convicted parole violator due to the expiration of his maximum violation date before commission of his drug offense and whether the Board failed to correctly credit time that Govens served while he was detained exclusively pursuant to the Board's warrant. The Court granted Govens leave to proceed in forma pauperis by order of December 19, 2008.
As set forth in the Certified Record and in the no-merit letter, Govens was sentenced on September 12, 2001 to two to five years for drug manufacture/sale/delivery or possession with intent to deliver, with minimum and maximum expiration dates of September 12, 2003 and September 12, 2006. He was paroled to a community corrections center by order of August 4, 2003, with an actual release date of March 15, 2004. On August 4, 2004, the Board declared Govens delinquent August 3, 2004. On March 10, 2005, the Board issued a decision recommitting Govens to serve eighteen months backtime as a technical parole violator for violations including failure to report as instructed, use of drugs and possession of a cell phone. His maximum expiration date was recalculated as February 7, 2007. The Board reparoled Govens to a community corrections center on July 5, 2006; his actual release date was October 16, 2006. On October 23, 2006, the Board declared Govens delinquent effective October 16, 2006.
Govens was arrested in Delaware County on December 1, 2007 and was charged with terroristic threats, harassment and disorderly conduct (withdrawn March 4, 2008) and also was charged with drug possession, possession with intent to deliver, possession of drug paraphernalia and disorderly conduct. He posted bail on March 26, 2008. On June 16, 2008, he pleaded guilty to manufacture/delivery or possession with intent to deliver a controlled substance, and he was sentenced to six to twenty-three months in the Delaware County prison; other charges were nolle prossed. He was paroled to the Board's detainer on August 25, 2008; he was returned to the SCI-Graterford on August 14, 2008.
On August 4, 2008, a parole revocation hearing was held before a hearing examiner at the prison. Govens represented himself; he waived his right to counsel and to a hearing before a panel of the Board; and he raised no objection to the hearing. The Board issued its September 16, 2008 order recommitting Govens to serve six months backtime as a convicted parole violator, and it recalculated his parole violation maximum date as May 7, 2009. Govens filed a pro se request for administrative relief on September 23 asserting that the Board's detainer was lifted March 26, 2008 because he posted bail and that his maximum date was February 7, 2007; he had not been found guilty in a court and the Board had not lodged any technical violations against him. He further asserted that his due process rights were violated because the arrest date and the criminal event date was December 1, 2007, which was about ten months after his maximum date of February 7, 2007.
On September 24, 2008, Govens again filed for administrative relief asserting that his notice to serve six months backtime was wrong because he owed the Board only 114 days, or time between October 16, 2006 and February 7, 2007. He asserted that the new maximum date should be November 23, 2008 rather than May 7, 2009. On October 1, 2008, Govens made a filing headed "Inmate Inquiry Unit" asserting, among other things, that on March 26, 2008 the Board lifted his detainer and that he was released on bail. On June 16, 2008, he was sentenced to six to twenty-three months, and he turned himself in on July 1, 2008.
The Board's Secretary, Cynthia L. Daub, responded on November 21, 2008. The response first noted that Govens did not raise any objections regarding the Board's authority to revoke his parole and to recommit him at the August 4, 2008 revocation hearing, and therefore he waived the right to raise that claim on appeal pursuant to Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d 28 (Pa.Cmwlth. 2006), among others. Moreover, even if the objection had been raised timely, it would have been properly overruled because Section 21.1(a) of the Act commonly known as the Parole Act (Act), Act of August 6, 1941, P.L. 61, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, 61 P.S. § 331.21a(a), gives the Board authority to recommit parolees for offenses that occur "while delinquent on parole[.]" She cited Kuykendall v. Pennsylvania Board of Probation and Parole, 363 A.2d 866 (Pa.Cmwlth. 1976), to support the view that because Govens absconded from supervision on October 16, 2006, he was still delinquent on parole when he committed the offense on December 1, 2007.
Additionally, the Secretary noted that when Govens was paroled on October 16, 2006 he had 114 days remaining on his sentence, and also he forfeited the credit for the 141 days when he was previously on parole from March 15, 2004 to August 3, 2004. The response cited Houser v. Pennsylvania Board of Probation and Parole, 682 A.2d 1365 (Pa.Cmwlth. 1996), in support. Adding the two time periods together resulted in 255 days remaining on his sentence. Govens did not receive credit against his original sentence for any time incarcerated between December 1, 2007 and August 25, 2008 because the record showed that he was not incarcerated solely on the Board's warrant; therefore, any credit for that time was applied to his new sentence under Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). He became available to the Board again on August 25, 2008, when he was paroled from his new county sentence. Adding 255 days to that yielded the new maximum date of May 7, 2009.
Counsel filed Govens' petition for review, stating as objections that denial of administrative relief constituted an error of law, a violation of Govens' constitutional rights and was not supported by substantial evidence and that the Board failed to give Govens credit for all time served solely under its warrant. On March 31, 2009, Counsel filed his petition to withdraw, stating that he concluded that no grounds existed for the appeal and that he sent a letter to the Court with a copy to Govens advising that it had no merit and was frivolous under Turner.
The no-merit letter recounts the history of Govens' convictions and paroles and proceedings on parole, and it follows very closely the reasoning stated by the Board in response to the requests for administrative relief. Additionally, the no-merit letter states that Govens raised the issue that he did not receive the appropriate credit for time he served exclusively pursuant to the Board's warrant. It then notes that the time between parole on October 16, 2006 and the maximum sentence date of February 7, 2007 was 114 days. The no-merit letter indicates that Govens was previously paroled on March 15, 2004 and was returned on August 3, 2004 (141 days) and that "[t]his would be added to the 114 days left on his maximum sentence for a total of 255 days." No-Merit Letter, p. 4. The Board cancelled its December 2007 warrant to commit and detain by order of March 24, 2008, and Govens was released to the streets. Thus Govens owes 255 days toward backtime. He was paroled from his county sentence on August 25, 2008, which is the date that the Board used for return of custody. No brief has been filed on behalf of either party, and by order of March 31, 2009 the Court directed that Counsel's petition be considered along with the merits of the petition for review.
This Court has had numerous occasions to discuss the requirements of a proper application for leave to withdraw by appointed counsel in a petition for review of a Board revocation or recalculation of backtime. In Turner the Supreme Court approved a standard less stringent than that for withdrawal from cases in which the right to counsel derives from the United States Constitution (for which counsel must file a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which must include any matter of record that could arguably support the appeal).
Under Turner, instead of filing an Anders brief, counsel may provide the Court and the petitioner a no-merit letter that details "`the nature and extent of [the attorney's] review and list[s] each issue the petitioner wished to have raised, with counsel's explanation of why those issues are meritless,' at which point the court must conduct its own review of whether the claim is meritless." Zerby v. Shanon, 964 A.2d 956, 959 (Pa.Cmwlth. 2009) (quoting Turner, 518 Pa. at 494-495, 544 A.2d at 928). The Court has stressed that its duty to conduct its own examination of the merits is triggered only if the application to withdraw complies with Turner. See Hont v. Pennsylvania Board of Probation and Parole, 680 A.2d 47 (Pa.Cmwlth. 1996). In Zerby the no-merit letter did not address all of the arguments that the petitioner wished to raise and did not comply with the requirement that "[a] no-merit letter must include `substantial reasons for concluding that' a petitioner's arguments are meritless." Zerby, 964 A.2d at 962 (quoting Jefferson v. Pennsylvania Board of Probation and Parole, 705 A.2d 513, 514 (Pa.Cmwlth. 1998)). For those reasons counsel's application was denied.
In the present case, Counsel's discussion of the first issue, namely, that the Board lacked jurisdiction to hold the revocation hearing because Goven's maximum date assertedly expired ten months earlier, provides an explanation of Counsel's reasoning, albeit quite brief and relying exclusively on citation supplied by the Board in its denial of administrative relief. Counsel's discussion of the second issue, however, is inadequate. First, Counsel describes the issue as whether Govens received appropriate credit for the time that he served exclusively pursuant to the Board's warrant. In fact, Govens' complaint relates not to time that he served but to time when he was at liberty on parole during his first period of parole, which ended with his recommitment as a technical parole violator.
By asserting that only the 114 days between October 16, 2006 and February 7, 2007 may be added to determine his new maximum date, Govens is in effect asserting that the earlier period of parole from March 15, 2004 to August 3, 2004 may not be forfeited. Counsel's entire discussion of this point consists of the following: "The petitioner had also previously been paroled on March 15, 2004. (Certified record, p. 63) He was returned on August 3, 2004, a period of 141 days street time. This would be added to the 114 days left on his maximum sentence for a total of 255 days." No-Merit Letter, p. 4.
Counsel's analysis is inadequate. It provides no explanation as to why the 141 days would be added to the 114 days. It does not cite to any statutory or case law authority, ignoring even the authority cited by the Board in its denial of administrative relief. As noted above, an application to withdraw must comply with the requirements of Turner before the Court will conduct its own independent review of the merits. Here, Counsel has failed to comply with those requirements fully. Accordingly, the Court denies the application to withdraw but with leave to amend within thirty days or, in the alternative, to file a brief supporting Govens' position.
ORDER
AND NOW, this 8th day of July, 2009, the petition to withdraw representation filed by Kent T. Watkins, Esq., appointed counsel for Lance Govens, is denied with leave to file an amended application with an amended no-merit-letter within thirty days. If counsel chooses not to amend his filed application, he shall file a brief of petitioner within thirty days of this order.