Jones v. Pa. Bd. of Prob. & Parole, 36 C.D. 2020

• Court: Commonwealth Court of Pennsylvania
• Writing for the Court: MARY HANNAH LEAVITT, PRESIDENT JUDGE EMERITA
• Parties: Steven Jones, Petitioner v. Pennsylvania Board of Probation And Parole, Respondent
• Docket Number: 36 C.D. 2020
• Decision Date: 31 August 2021

Steven Jones, Petitioner
v.
Pennsylvania Board of Probation And Parole, Respondent

No. 36 C.D. 2020

Commonwealth Court of Pennsylvania

August 31, 2021

OPINION NOT REPORTED

Submitted: March 5, 2021

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE J. ANDREW CROMPTON, Judge

MEMORANDUM OPINION

MARY HANNAH LEAVITT, PRESIDENT JUDGE EMERITA

Steven Jones petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board)^[1] denying his administrative appeal. Jones's appointed counsel, First Assistant Public Defender for Fayette County, Meghann E. Mikluscak, Esquire (Counsel), filed an amended application for leave to withdraw her appearance and an amended no merit letter in support thereof. For the reasons that follow, we grant Counsel's request to withdraw and affirm the Board's decision.

On July 21, 1988, Jones was released on parole from the State Correctional Institution (SCI) at Camp Hill to reside in Compton, California, after serving part of his Pennsylvania sentence for robbery and rape convictions.^[2] At the time of his 1988 parole, Jones's maximum sentence date was November 28, 2003. On May 18, 1989, Jones was arrested in Los Angeles County, California, and charged with several felonies, including robbery, forcible oral copulation, rape, assault with a deadly weapon, and assault with a firearm. Jones did not post bail. On July 7, 1989, the Board issued a warrant to commit and detain Jones pending disposition of his new criminal charges. On July 17, 1990, Jones was convicted of the felonies and, on August 30, 1990, he was sentenced to 24 years to 56 years and 8 months of incarceration in a California state penitentiary. On June 12, 2018, California authorities released Jones, and he was transferred to SCI-Fayette in Fayette County, Pennsylvania.

On July 3, 2018, the Board presented Jones with a notice of charges and revocation hearing. Jones waived his right to counsel and to a hearing, and admitted to the California convictions. On September 17, 2018, the Board recommitted Jones as a convicted parole violator to serve the unexpired term of 15 years, 4 months, and 17 days on his Pennsylvania sentence. The Board recalculated Jones's maximum sentence date from November 28, 2003, to October 29, 2033.

On October 5, 2018, Jones appealed the Board's decision, asserting that his recalculated maximum sentence date was incorrect. Jones explained that the Board "has taken a 2003 [maximum sentence date] and changed it to 2033 without merit." C.R. 71. By adjudication mailed May 1, 2019, the Board denied Jones's appeal. The Board explained:

The Board paroled you from a[n] [SCI] ... on July 21, 1988[ ] with a [maximum sentence] date of November 28, 2003. This left you with a total of 5618 days remaining on your sentence at the time of parole. The Board's decision to recommit you as a convicted parole violator authorized the recalculation of your sentence to reflect that you received no credit for the time you were at liberty on parole[.] 61 Pa. C.S. §6138(a)(2). In this case, the [B]oard did not award you credit for time at liberty on parole. This means you still had a total of 5618 days remaining on your sentence based on your recommitment

You were arrested for new criminal charges in California on May 18, 1989, and you did not post bail. On July 7, 1989[, ] the [B]oard lodged its detainer against you. You were sentenced in California on August 30, 1990[, ] to a term of twenty-four years to fifty-six years eight months. You were available to be returned from your California charges on June 12, 2018

Based on these facts, the [B]oard did not award backtime credit. This means you still had a total of 5618 days remaining on your original sentence

The [] Parole Code provides that convicted parole violators who are paroled from a[n] [SCI] and then receive another sentence to be served in another state must serve the other states [sic] sentence first. Thus, you did not become available to commence service of your original sentence until June 12, 2018[, ] when you were available to the [B]oard from your California sentence. Adding 5618 days to that date yields a new maximum sentence date of October 29, 2033.

C.R. 73-74. Jones petitioned for this Court's review.

In his pro se petition for review, Jones argues the Board erred in recalculating his maximum sentence date in three respects. First, Jones contends that he is entitled to credit for time spent at liberty on parole because he was not convicted of a crime requiring registration as a sex offender. See 61 Pa. C.S. §6138(a)(2.1).^[3] Second, Jones contends that he is entitled to credit for time spent in custody while on the Board's detainer from July 7, 1989, until he was released to Pennsylvania authorities on June 12, 2018. In support, he cites Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980). Third, Jones challenges the Board's authority to recommit him and recalculate his maximum sentence date, claiming such authority infringed on the sentencing power of the judiciary. He adds that the Board's recalculation of his sentence has imposed a "harsher" sentence than required by law because the Parole Code mandates that he serve only the original sentence imposed by the Pennsylvania court. See 61 Pa. C.S. §6138(a)(5).

By order dated January 22, 2020, this Court granted Jones's application to proceed in forma pauperis and appointed the Public Defender of Fayette County to represent him. After review of this matter and pursuant to this Court's order dated December 18, 2020, ^[4] Counsel filed an amended application for leave to withdraw her appearance and an amended no-merit letter asserting Jones's appeal lacks merit.

In Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), our Supreme Court set forth the technical requirements appointed counsel must meet to withdraw from representation of a parolee seeking review of a determination of the Board. Counsel must, after reviewing the case and ascertaining that it lacks merit,

provide a "no-merit" letter[, ] which details "the nature and extent of [counsel's] review and list[s] each issue the petitioner wished to have raised, with counsel's explanation of why those issues are meritless."

Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (citing Turner, 544 A.2d at 928). Counsel must also send the parolee a copy of the no-merit letter that satisfies the Turner requirements, furnish the parolee with a copy of counsel's motion to withdraw, and inform the parolee of his right to retain new counsel or submit a brief on his own behalf. Zerby, 964 A.2d at 960. If counsel fails to satisfy the foregoing requirements, we will not reach the merits of the underlying claims but will merely deny counsel's request to withdraw. Id.

We conclude that Counsel's amended no-merit letter satisfies the Turner requirements. In her letter, Counsel addressed the issues Jones raised on appeal and provided the basis for her conclusion that his appeal lacks merit. Amended No-Merit Letter, 1/21/2021, at 1-4. Counsel sent Jones copies of her amended no-merit letter and amended application for leave to withdraw appearance and advised Jones of his right to retain new counsel or proceed with his appeal on his own behalf. Because...