Opinion
No. 793 C.D. 2014
01-08-2015
Andres Ortiz-Torres, 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 SENIOR JUDGE COLINS
Before this Court are the petition of Andres Ortiz-Torres (Petitioner) for review of the April 17, 2013 determination of the Pennsylvania Board of Probation and Parole (Board), which affirmed its recommitment of Petitioner as a convicted parole violator and recalculation of his parole violation maximum date, and the petition of Richard C. Shiptoski, Esq., Assistant Public Defender of Luzerne County (Counsel), for leave to withdraw as counsel for Petitioner on the grounds that the petition for review is frivolous. After review, we grant Counsel's petition for leave to withdraw and affirm the order of the Board.
On November 6, 2006, Petitioner was released on parole from State Correctional Institution Greensburg; at the time of his release, Petitioner had a parole violation maximum date of November 5, 2013. (Aug. 8, 2006 Board Decision, Certified Record (C.R.) at 4-6; Order to Release, C.R. at 7.)
On March 12, 2012, Petitioner was arrested by agents for the Pennsylvania Office of the Attorney General, Bureau of Narcotics and confined in Lehigh County Prison on charges related to the possession and attempt to deliver methamphetamine. (Criminal Complaint, C.R. at 13-16.) The Criminal Complaint lists the arrestee as Javier M. Ortiz, also known as Javier M. Torres; Javier Ortiz is alleged by the Board to be Petitioner's birth name. (Id., C.R. at 13; Board Criminal Arrest and Disposition Report, C.R. at 11.) The Board lodged a detainer against Petitioner as of the date of his arrest, March 12, 2012. (Warrant to Commit and Detain, C.R. at 10.) Petitioner entered a guilty plea in the Lehigh County Court of Common Pleas to charges of manufacture, delivery or possession with intent to manufacture or deliver controlled substances and criminal conspiracy and received sentences of 6-to-20 years and 2-to-20 years to run concurrently. (Sentencing Orders, C.R. at 27-28; Criminal Docket Sheet, C.R. at 47.)
Petitioner waived a parole revocation hearing, and by a decision recorded on April 4, 2013 and mailed on April 17, 2013, the Board recommitted Petitioner as a convicted parole violator to serve 24 months backtime. (Waiver of Revocation Hearing, C.R. at 41; Apr. 17, 2013 Board Decision, C.R. at 59.) Petitioner's re-parole eligibility date was set at March 5, 2015 and his parole violation maximum date was set at March 4, 2020. (Apr. 17, 2013 Board Decision, C.R. at 59.)
Petitioner, acting pro se, appealed the Board's decision by letter dated September 23, 2013. (Letter, C.R. at 60-62.) Petitioner thereafter filed a "Request for Administrative Remedy" with the Board appealing the Board's April 17, 2013 decision, which was post-marked October 8, 2013. (Request for Administrative Remedy, C.R. at 63-70.) By letter dated April 18, 2004, the Board denied Petitioner's administrative appeals because they were not timely filed within 30 days of the order being appealed. (Board Denial of Administrative Appeal, C.R. at 71.)
Petitioner filed a "Petition for Review/Request for Mandamus" with this Court on May 6, 2014 seeking mandamus and declaratory relief based on the alleged failure of the Department of Corrections (DOC) to give Petitioner credit for time spent in custody and while at liberty when computing Petitioner's new parole violation maximum date. Petitioner also filed a Motion for Responsive Pleading requesting that we order the Board to respond by responsive pleading within 30 days. On May 22, 2014, this Court directed that Petitioner's Petition for Review/Request for Mandamus shall be treated as a petition for review addressed to our appellate jurisdiction, denied Petitioner's Motion for Responsive Pleading, and appointed Counsel to represent Petitioner. The Board thereafter filed a motion to limit the matter before the Court to the issue of whether the Board properly dismissed Petitioner's request for administrative relief as untimely, which we granted on July 14, 2014. In August 2014, Counsel filed his petition for leave to withdraw and an Anders brief in support of the petition.
See Anders v. California, 386 U.S. 738 (1967).
When evaluating a petition for leave to withdraw as appointed counsel for a parolee challenging a revocation decision, our first task is to determine whether counsel has satisfied the procedural requirements of: (i) notifying the inmate of his request to withdraw; (ii) furnishing the inmate with a copy of a brief in accordance with Anders v. California, 386 U.S. 738 (1967), or a no-merit letter; and (iii) advising the inmate of his right to retain new counsel or raise any new points he might deem worthy of consideration by submitting a brief on his own behalf. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22 (Pa. Cmwlth. 2009) (en banc); Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992).
Though Counsel submitted an Anders brief in support of his petition to withdraw, Petitioner has only a statutory, rather than a constitutional, right to counsel, and thus only a no-merit letter was required. Hughes, 977 A.2d at 24-25. A no-merit letter must set forth: (i) the nature and extent of counsel's review of the case; (ii) each issue that the inmate wishes to raise on appeal; and (iii) counsel's explanation of why each of those issues is meritless. Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988); Hughes, 977 A.2d at 26. The principal distinction between a no-merit letter and an Anders brief is the standard of review applied to the issues on appeal: the lack of merit standard for a no-merit letter and the frivolousness standard for an Anders brief. Smith v. Pennsylvania Board of Probation and Parole, 574 A.2d 558, 562 (Pa. 1990). We will not deny a petition to withdraw in cases because counsel has chosen to submit an Anders brief where a no-merit letter is sufficient, but we will instead simply apply the lack of merit standard. Hughes, 977 A.2d at 26 n.4.
A constitutional right to counsel exists in a parole revocation matter when the parolee's case contains:
[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.
Counsel has satisfied the procedural requirements for withdrawal. Counsel sent Petitioner a letter, delivered on August 6, 2014 and attached as an exhibit to the petition for leave to withdraw, which informs Petitioner of his determination that there were no non-frivolous issues in the appeal and that Petitioner could retain an attorney or submit his own brief. Counsel's Anders brief adequately summarizes the procedural history and relevant facts, discusses the issue of whether Petitioner's administrative appeal was timely filed, and explains his determination that any appeal of the Board's decision is frivolous and without merit, with citations to the relevant case law and regulations.
Petitioner did not file his own brief in this appeal and no other attorney entered an appearance on Petitioner's behalf.
Because Counsel has satisfied the procedural requirements for withdrawal, we next independently evaluate the proceedings before the Board to determine whether the appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423, 426 (Pa. Cmwlth. 1996); Frankhouser v. Pennsylvania Board of Probation and Parole, 598 A.2d 607, 608-09 (Pa. Cmwlth. 1991). The Board's Rules of Administrative Practice and Procedure provide that an appeal or petition for administrative review of a revocation decision must be received within 30 days of the mailing date of the Board's order. 37 Pa. Code § 73.1(a)(1), (b)(1); see also 61 Pa. C.S. § 6113(d)(1); Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1094 (Pa. Cmwlth. 2013). In Coldren v. Pennsylvania Board of Probation and Parole, 795 A.2d 457 (Pa. Cmwlth. 2002), we held that the prisoner mailbox rule applies to pro se appeals of Board decisions and therefore a parolee's appeal is deemed filed when provided to DOC for mailing to the Board. Id. at 459. The 30-day period for an appeal of a revocation decision is jurisdictional and cannot be extended absent a showing of fraud, a breakdown of the administrative process, non-negligent circumstances affecting the parolee, or the intervening negligence of the parolee's appointed counsel which deprives the parolee effective assistance of counsel. Smith, 81 A.3d at 1094; Larkin v. Pennsylvania Board of Probation and Parole, 555 A.2d 954, 957-58 (Pa. Cmwlth. 1989).
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with the law, and whether necessary findings were supported by substantial evidence. 2 Pa. C.S. § 704; Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1093 n.1 (Pa. Cmwlth. 2013). --------
The Board's recommitment decision was mailed on April 17, 2013; Petitioner therefore would have had until May 17, 2013 to deposit his administrative appeal of the decision with DOC for mailing. Petitioner did not argue in his petition for review why we should reverse the Board's determination that Claimant's administrative appeals mailed more than five months after the deadline were untimely. However, in his first administrative appeal, Petitioner explained that he did not receive the Board's decision when it was initially mailed and only received the decision in August 2013 after emailing the Board and requesting another copy. (C.R. at 60.) Petitioner further stated that this second mailing of the Board's decision was date-stamped August 6, 2013. (C.R. at 61.)
Even if we accept as true Petitioner's assertion that he did not receive the Board's decision when initially mailed and received a copy in August 2013 bearing the date stamp of August 6, 2013 and assume that this was a result of a breakdown in the Board's administrative process, Petitioner would have had until September 5, 2013 to give his appeal to DOC for mailing in accordance with the prisoner mailbox rule. However, Petitioner's first appeal was dated September 23, 2013 and was post-marked on September 24, 2013. (C.R. at 60, 62.) Petitioner has offered no other explanation for why he did not timely file an appeal within 30 days of the second mailing of the Board decision on August 6, 2013, and after a full review of the record, we discern no other reason that would justify an extension of the time for Petitioner's appeal. Accordingly, we agree with Counsel's determination that the argument that Petitioner's administrative appeal was erroneously dismissed as untimely is without merit, and we grant Counsel's petition for leave to withdraw and affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of January, 2015, the Petition for Leave of Court to Withdraw as Counsel filed by Richard C. Shiptoski, Esquire, Assistant Public Defender of Luzerne County, in the above-captioned matter is hereby GRANTED and the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge
Hughes, 977 A.2d at 26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). The issue on appeal does not invoke either of the elements that trigger a constitutional right to counsel.