Opinion
No. 28 C.D. 2012
08-20-2012
Robert E. Kinzey, Jr., Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Before the Court is the petition to withdraw as counsel filed by Nicole Sloane, Esquire (Counsel). Counsel was appointed to represent Robert E. Kinzey, Jr. (Kinzey) who petitions for review of the December 13, 2011 decision of the Pennsylvania Board of Probation and Parole (Board), which denied his administrative appeal of an order recommitting him to serve a total of twelve months backtime as a technical and convicted parole violator. We grant Counsel's request and affirm the Board's order.
Kinzey was originally sentenced on March 26, 1991, to eight years and six months to twenty years imprisonment for convictions in Clearfield County of drug charges, aggravated assault, and attempted murder. (Certified Record (C.R.) at 100.) His maximum expiration date for that sentence was August 1, 2005, and he was released on parole on October 12, 2000. (C.R. at 7.)
While on parole, Kinzey was arrested in 2001 for three new criminal charges. The Board declared Kinzey delinquent on August 14, 2002, (C.R. at 10), and on February 4, 2003, the Board issued an order for Kinzey to return as a technical parole violator and scheduled a preliminary hearing. (C.R. at 11.) He subsequently was sentenced in 2003 and 2004 to two years and nine months to five years and six months for theft by deception, to two years and six months to five years for ID theft, and to one year and six months to five years for passing bad checks. (C.R. at 21.) By order dated July 6, 2004, the Board recommitted Kinzey to serve a total of twelve months backtime, when available, as a technical and convicted parole violator. (C.R. at 12.) Kinzey was reparoled on July 22, 2005, to the state detainer sentence. (C.R. at 16.) On April 11, 2007, Kinzey was again released on parole; at that time his parole violation maximum date was February 10, 2019. (C.R. at 18.)
On December 28, 2007, Kinzey was arrested on charges of forgery, theft by deception, and bad checks. (C.R. at 51.) On March 13, 2008, the Board issued a detainer order pending disposition of these charges. (C.R. at 24.) However, the charges were dismissed on August 18, 2008, and Kinzey resumed supervision at his previously approved home address. (C.R. at 51.)
On August 19, 2009, Aliquippa police charged Kinzey with forgery, theft by deception, and bad checks. After failing to report and being absent during two curfew checks, the Board declared Kinzey delinquent effective August 20, 2009. (C.R. at 27.) The Board issued a detainer on September 12, 2009, and Aliquippa police arrested Kinzey on the same day. (C.R. at 28, 51.) Kinzey did not post bail, (C.R. at 42), and he remained detained on these charges until he pleaded nolo contendere to the bad checks charge on April 6, 2011. (C.R. at 63.) The forgery and theft by deception charges were nolle prossed. (Id.) On April 6, 2011, Kinzey was sentenced to a term of six months to twenty-three months, fifteen days. (C.R. at 67.) As reflected in the trial court's April 7, 2011 clarifying order, Kinzey was paroled on the day he was sentenced on the bad checks charge because at that time he had 571 days credit. (C.R. at 64.) The trial court noted that Kinzey's six month minimum term would have been served on March 12, 2010. (Id.)
On July 2, 2011, the Board ordered Kinzey recommitted to serve nine months backtime as a technical parole violator and twelve months backtime concurrently as a convicted parole violator and recalculated Kinzey's parole violation maximum date to March 4, 2024. (C.R. at 105, 107.) In making that calculation, the Board credited Kinzey with 234 days confinement time for the period between December 28, 2007, to August 18, 2008, during which Kinzey was confined based on charges that were ultimately dismissed. (C.R. 105.) The Board also credited Kinzey with two days backtime for the period between September 12, 2009, and September 14, 2009, the days between Kinzey's arrest on the new bad checks charge and the day his bail was set. (Id.) Kinzey filed a petition for administrative review, which the Board denied. (C.R. at 133-34.)
On January 11, 2012, Kinzey filed a pro se petition for review with this Court, contending that the Board's recalculation of his maximum date failed to include all of the credit to which he was entitled. Specifically, Kinzey contends that he was entitled to credit for the period between July 22, 2005, and July 23, 2007, when he was incarcerated on the 2003-2004 charges, and for the period between March 12, 2010, and April 7, 2011, representing the time from the date his minimum sentence for the bad checks would have ended to the date he was paroled. Kinzey also argues that the Board incorrectly credited him for the two days between September 12, 2009, and September 14, 2009.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or whether necessary findings are supported by substantial evidence. Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257 (Pa. Cmwlth. 2008).
On April 9, 2012, Counsel filed a petition to withdraw, supported by a no-merit letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). In the letter, Counsel advised Kinzey that the Board correctly determined the dates upon which Kinzey could receive credit for confinement time towards his original conviction. Counsel concluded that Kinzey's appeal was without merit.
Before examining the merits of Kinzey's appeal, we must be satisfied that Counsel discharged her responsibility by complying with the technical requirements set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). According to Craig, appointed counsel must notify the parolee of her request to withdraw and furnish the parolee with a copy of a brief complying with Anders v. State of California, 386 U.S. 738 (1967). In lieu of an Anders brief, appointed counsel may submit a no-merit letter that satisfies the requirements of Turner and informs the parolee of his right to retain new counsel or file a brief on his own behalf. Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d 28 (Pa. Cmwlth. 2006).
Should appointed counsel proceed in accordance with Turner, her no-merit letter must set forth the following: (1) the nature and extent of counsel's review of the case; (2) the issues the petitioner wishes to raise; and (3) counsel's analysis in concluding that the appeal is without merit. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009). Counsel must comply with these requirements to ensure that an offender's claims are considered and counsel has substantial reasons for concluding that the claims are without merit. Reavis.
Here, Counsel informed Kinzey of Counsel's request to withdraw and provided Kinzey with a copy of the no-merit letter informing Kinzey of his right to retain new counsel or file a pro se brief. Furthermore, Counsel's no-merit letter adequately details the nature of her review of the case and the issues Kinzey wishes to raise on appeal. The no-merit letter also thoroughly sets forth Counsel's analysis of the issues and her basis for determining that they are without merit. We conclude that Counsel's no-merit letter complies with Turner, and, thus, we turn to the merits of Kinzey's appeal.
Kinzey first contends that the Board failed to properly credit time he served between July 22, 2005, and July 23, 2007. He argues that he was paroled from his original 1991 sentence on July 22, 2005, and that the Board did not "state the fact that [Kinzey] was being re-entered" to serve his 2003-2004 convictions. (Petition for Review p.2.) Therefore, Kinzey contends he is entitled to credit against his 1991 sentence for those 731 days he was incarcerated. We disagree.
When a parolee is recommitted as a convicted parole violator, he must serve the remainder of the term that he would have been required to serve had he not been paroled, and "he shall be given no credit for the time at liberty on parole." Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 696 (Pa. Cmwlth. 2009). Relying on our Supreme Court's decision in Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980), the Harden court noted that a parolee can be considered "at liberty on parole" even while he is in prison, provided the parolee is not in prison for the purpose of serving his original sentence. Harden, 980 A.2d at 697.
In Harden, the Board refused to credit a parolee with time spent in residential treatment after the parolee was recommitted as a convicted parole violator. This Court affirmed, noting that although the residential treatment was part of his parole for the original sentence, it was not equivalent to prison and could not be credited against the original sentence.
In Hines, the Board rejected parolee's argument that he deserved credit against his original sentence while he was on "constructive parole" but serving prison time for a separate conviction. Our Supreme Court affirmed noting that the legislature intended the language "at liberty on parole" to mean free from confinement for the particular sentence for which the parolee is being reentered as a parole violator, rather than free from all confinement. --------
Here, Kinzey was paroled on July 22, 2005, from his sentence pertaining to his March 26, 1991 aggravated assault conviction to begin serving his 2003-2004 sentences pertaining to his subsequent convictions for theft and passing bad checks. (C.R. at 16.) Contrary to Kinzey's assertion, the Board's decision clearly indicates that Kinzey was paroled to a state detainer sentence, i.e., to begin serving prison time for the 2003-2004 sentences. (Id.) Therefore, the Board did not abuse its discretion in denying him credit for the time he was incarcerated between July 22, 2005, and July 23, 2007.
Next, Kinzey contends that the Board erred by failing to give him credit for the time he was incarcerated between March 12, 2010, when his minimum sentence would have expired, and April 6, 2011, when he was actually paroled. Kinzey interprets the April 7, 2011 clarifying order as stating that he was eligible to begin serving backtime on March 12, 2010. Relying on his understanding of the clarifying order, Kinzey contends that after March 12, 2010, he was only incarcerated on the Board's detainer and thus entitled to the 391 days between March 12, 2010, and April 6, 2011, as credit against his maximum sentence.
However, Kinzey incorrectly interprets the language of the clarifying order. The order states that the "defendant was paroled on the above captioned case effective the date he was sentenced as he had 571 days credit." (C.R. at 64). Although the trial court notes that Kinzey's minimum term would have been served on March 12, 2010, the trial court does not state that he was paroled effective March 12, 2010. (Id.) Furthermore, there is no guarantee that Kinzey would have been paroled on March 12, 2010, had he been sentenced prior to that date.
In Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980), our Supreme Court held that if 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 he spent in custody is credited against his original sentence. However, if the defendant remains incarcerated prior to sentencing because he failed to post bail, the time spent in custody is credited to his new sentence. Id. Here, it is clear that Kinzey was being held in custody based on his new charges, and, as reflected in the trial court's clarifying order, the trial court credited that time in custody towards Kinzey's new sentence. Therefore, Kinzey is not entitled to additional credit against his original 1991 convictions.
Lastly, Kinzey contends that the Board incorrectly credited him with two days backtime for the time period he was incarcerated between September 12, 2009, and September 14, 2009. Kinzey contends that he was under arrest, arraigned and that bail had been set but not posted on September 12, 2009, not September 14, 2009. (C.R. at 42.) According to Kinzey, the trial court credited the two days to his new sentence and the Board erroneously gave him credit for the same period. However, Kinzey does not request relief based on this alleged error.
Based on the foregoing, we conclude that Kinzey's appeal is without merit. Accordingly, we grant Counsel's petition for leave to withdraw and we affirm the Board's order.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 20th day of August, 2012, the petition filed by Nicole Sloane, Esquire to withdraw as appointed counsel for Robert E. Kinzey, Jr., is hereby granted. The order of the Pennsylvania Board of Probation and Parole, dated December 13, 2011, denying Kinzey's petition for administrative review, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge