Presley v. PA. BD. OF PROBATION AND PAROLE

• Decision Date: 09 September 1999
• Citation: 737 A.2d 858
• Parties: Isiah PRESLEY, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

737 A.2d 858

Isiah PRESLEY, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 30, 1999.

Decided September 9, 1999.

Isiah Presley, petitioner, pro se.

Arthur R. Thomas, Harrisburg, for respondent.

Before McGINLEY, J., KELLEY, J., and MIRARCHI, Jr., Senior Judge.

MIRARCHI, Senior Judge.

Before this Court are (1) the petition of Isiah Presley (Presley), an inmate at the State Correctional Institution at Graterford, Pennsylvania, for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief; and (2) the petition to withdraw as counsel filed by Presley's court-appointed counsel. We deny the petition to withdraw and consequently do not reach the merits of the petition for review.

The record certified to this Court reveals the following pertinent facts. Presley was last reparoled on July 20, 1993, while serving a sentence for his 1981 conviction of a robbery charge. Presley was arrested on new criminal charges on September 7, 1995, and the Board lodged a detainer against him on February 27, 1996. Presley was subsequently convicted of the simple assault and theft charges in the Court of Common Pleas of Philadelphia County and was sentenced on January 15, 1997 to serve an imprisonment term of nine to eighteen months followed by two-year probation. After a revocation hearing held on March 5, 1997, the Board recommitted Presley as a technical and convicted parole violator to serve, when available, a total of thirty-month backtime on his original sentence.

The trial court later revised Presley's January 15, 1997 sentence as follows:

Sentence of 1/15/97 in error. Sentence should read `Time-in (9/6/95-2/21/96) to eighteen (18) months Phila. County Prison. Six (6) months consecutive probation.' Defendant to receive additional credit from 11/13/97-11/25/97.

Trial Court's November 25, 1997 Sentencing Order.

The Board subsequently recalculated Presley's maximum parole expiration date to September 3, 2000 in an order dated October 1, 1998. Presley then filed a petition for administrative relief, challenging the Board's recalculation of his maximum parole expiration date. Presley contended that he posted bail on February 21, 1996 following his arrest on the new criminal charges, that the sentencing judge granted him a parole effective January 15, 1997 in sentencing him to time served to eighteen months, and that in recalculating the maximum parole expiration date, the Board failed to give him a proper credit for the time served from the date when the Board lodged the warrant against him and following his alleged parole.

After Presley filed the petition, the sentencing judge sent a letter to the parole agent, stating:

Specifically he was sentenced to time served to 18 months incarceration followed by two (2) years reporting probation consecutive to any period of state incarceration that Mr. Presley was required to serve.

A sentence of time served is a very common practice in Philadelphia County. It literally has the effect of an immediate parole. In this particular case, the sentence was created in this fashion so that Mr. Presley might begin to immediately serve his state sentence. Effective as of the date of my sentence (January 14, 1997).[sic] Mr. Presley has completed the period of incarceration imposed on the above captioned case.

Sentencing Judge's Letter dated November 17, 1998.

In a decision mailed on November 23, 1998, the Board denied Presley's request for administrative relief. The Board stated that Presley was given a credit toward the original sentence for the time served solely on the Board's warrant from February 27, 1996 through January 15, 1997, the date of his new sentence; the record did not support his claim that the sentencing judge granted him a parole on January 15, 1997; and he was not available to serve the thirty-month backtime until he completed the new eighteen-month sentence on January 30, 1998. Presley pro se appealed the Board's denial of his request for administrative relief, raising the same contentions presented to the Board.

This Court then appointed the Public Defender of Montgomery County to represent Presley in his appeal. This Court subsequently granted the assistant public defender's request and extended the time period for filing a brief until April 21, 1999. When counsel did not file a brief by the due date, this Court ordered on May 3, 1999 that the petition for review will be dismissed unless a brief is filed within fourteen days.

On May 14, 1999, counsel sent a "no-merit letter" to Presley, in which he stated that the appeal is frivolous lacking any arguable merit and that he would seek this Court's permission to withdraw as counsel. On May 19, 1999, counsel filed a petition to withdraw, alleging that his conscientious review of the record did not reveal any arguable merit. Presley filed an objection to the petition to withdraw, contending, inter alia, that counsel's no-merit letter was untimely filed and that counsel in the letter failed to set forth sufficient basis for concluding that his appeal is frivolous. Presley's objection was stricken without prejudice to raise it in his brief.

Presley subsequently filed a pro se brief objecting to counsel's petition to withdraw, urging this Court to appoint new counsel and addressing the merits of the appeal. In its brief, the Board contends that the order sentencing Presley to the minimum term of time served is not an order granting him a parole and that Presley was required to serve his new sentence first in the county prison before serving the backtime on the original sentence in the state correctional institution, pursuant to Section 21.1(a) of the Act of August 6, 1941, P.L. 861, as amended, commonly known as the Parole Act, 61 P.S. § 331.21a(a).¹

Before reviewing the merits of the appeal, we must first decide counsel's petition to withdraw. 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 frivolous appeals. Craig v. Pennsylvania Board of Probation & Parole, 93 Pa.Cmwlth. 586, 502 A.2d 758 (1985). Consequently, court-appointed counsel may seek to withdraw his or her representation of the parolee if counsel concludes, after a conscientious review of the record, that the appeal is wholly frivolous.²Id.

Pursuant to Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), court-appointed counsel, who seeks to withdraw his or her representation, must (1) notify the parolee of the request to withdraw, (2) furnish the parolee with a copy of the brief referring anything in the record that might arguably support the appeal (Anders brief), and (3) advise the parolee of the right to retain new counsel or raise any new contentions. The Pennsylvania courts subsequently permitted counsel to alternatively file a "no-merit letter," instead of an Anders brief, (1) detailing the nature and extent of counsel's review, (2) listing issues that the parolee wishes to raise, and (3) explaining why those issues lack any merit. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Epps...