IN THE COMMONWEALTH COURT OF PENNSYLVANIA David Brown, : Petitioner : : v. : : Pennsylvania Board of : Probation and Parole, : No. 2131 C.D. 2012 Respondent : Submitted: October 25, 2013 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: November 25, 2013 Before this Court is Tina M. Fryling s (Attorney Fryling) petition for leave to withdraw 1 as counsel for David Brown (Brown) on Brown s petition for review of orders of the Pennsylvania Board of Probation and Parole (Board) which recommitted Brown to serve twelve months backtime as a convicted parole violator concurrent with a nine month commitment as a technical parole violator and established Brown s maximum date as October 28, 2015, and denied Brown credit for time he spent at halfway houses and community corrections centers. Brown was effectively sentenced on November 23, 1988, to a term of one year six months to three years for the manufacture, sale, delivery, or 1 By order dated September 13, 2013, this Court denied without prejudice a previous petition for leave to withdraw as counsel by Attorney Fryling and permitted her to file an amended petition to withdraw/commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) letter or a brief on the merits within thirty days.
possession with intent to deliver of drugs. He was consecutively sentenced to a term of two years six months to ten years for the manufacture, sale, delivery, or possession with intent to deliver drugs. He was concurrently sentenced to a term of two years six months to ten years for the same offense. His total sentence was four to thirteen years. On December 4, 1992, Brown was paroled to an approved residence in the State of New York. In a decision recorded October 21, 1996, the Board declared Brown delinquent, effective August 2, 1996. In a decision dated January 22, 2002, and mailed January 30, 2002, the Board recommitted Brown to serve six months backtime as a technical parole violator and to serve eighteen months consecutively as a convicted parole violator for a total of twenty-four months backtime. The Board established Brown s maximum date as September 12, 2010. On November 7, 2002, the Board modified the January 22, 2002, decision and changed the amount of backtime as a convicted parole violator from eighteen months to twelve months. On or about September 12, 2003, the Board reparoled Brown to Treatment Trends (Keenan House). On September 15, 2003, the Board recalculated Brown s maximum date as September 4, 2010. On November 14, 2005, the Reading Police Department arrested Brown on drug charges. In a decision recorded January 24, 2006, and mailed February 16, 2006, the Board detained Brown pending the disposition of criminal charges and recommitted him to serve twelve months backtime as a technical parole violator for multiple technical violations. In a decision recorded March 20, 2007, and mailed April 5, 2007, the Board recommitted Brown to serve six months 2
backtime as a convicted parole violator following his conviction for possession of a controlled substance to be served concurrently with the earlier recommitment as a technical parole violator for a total imposition of twelve months backtime. The Board recalculated Brown s maximum date as August 22, 2012. The Board reparoled Brown on or about August 2, 2007, to a state detainer sentence. After serving time on his 2007 drug conviction, Brown was paroled from that sentence on July 11, 2008, to ADAPPT Treatment Services (ADAPPT). In a decision recorded November 10, 2008, and mailed November 21, 2008, the Board recommitted Brown as a technical parole violator for the technical violations of leaving the district without permission, changing his residence without permission, and failing to successfully complete a community corrections residency at Siena House. The Board reparoled Brown on June 25, 2009, to Kintock Erie Community Corrections Facility in Philadelphia. On February 14, 2010, the Board issued a warrant to commit and detain Brown. On March 10, 2010, Brown was arrested by the City of Lebanon Police Department. In a decision recorded April 19, 2010, and mailed April 22, 2010, the Board detained Brown pending disposition of criminal charges and recommitted him to serve nine months backtime as a technical parole violator for alcohol consumption when available. On June 7, 2011, the Court of Common Pleas of Lebanon County convicted Brown of fleeing or attempting to elude an officer, DUI-high rate of alcohol, DUI-general impairment, driving the wrong way, reckless driving, operating a vehicle without valid inspections, and a stop sign violation. On July 27, 2011, he was sentenced to one to five years for fleeing or 3
attempting to elude an officer, and forty-eight hours to six months for the DUIhigh rate of alcohol charge. He received no further penalty on the other charges. On August 18, 2011, Brown waived his revocation hearing and admitted to the June 7, 2011, convictions. In a decision recorded October 12, 2011, and mailed October 18, 2011, the Board recommitted Brown to serve twelve months backtime as a convicted parole violator concurrent with the earlier imposed nine months backtime as a technical parole violator and established Brown s maximum date as October 28, 2015. Brown requested administrative relief and alleged: 8. The Board s determination of October 12, 2011 is in erros [sic] because: 9. The Board erred when Revocation Form PBPP-257-N is address [sic] to parolee number HE9640. 10. The Board erred when it recomputed this parolee s maximum term, expiration date 10-28-2015, because: 11. The Petitioner [Brown] is entitled to time credit on his Old Backtime for all time spent on constructive parole not At liberty and all time spent at Half-way house or Community Corrections Center time from 8-2- 2007, to 9-29-2008 and from 6-25-2009, to 10-2-2009. 12. The Petitioner [Brown] is entitled to these [sic] time because they was [sic] sufficient restrain, physically and constructively which are [sic] custody. 13. The Board erred when not given [sic] petitioner [Brown] credit for time incarcerated on both the parole Board Violation Warrant and new criminal charges. 4
14. The petitioner [Brown] is entitle [sic] for confinement credit in an equitable manner because Board is causing parolee to serve a harsher sentence. Petition for Administrative Appeal, November 8, 2011, Paragraph Nos. 8-14 at 2; Certified Record (C.R.) at 101. On February 15, 2012, the Board affirmed Brown s recommitment as a convicted parole violator and ordered that an evidentiary hearing take place to determine if he was entitled to credit for time spent at ADAPPT program from August 2, 2007, to September 2, 2008 2, Gaudenzia Siena House program from September 3, 2008, to September 26, 2008, and Kintock-Erie program from June 25, 2009, to October 2, 2009. An evidentiary hearing was held on April 2, 2012, at the State Correctional Institution at Albion. With respect to Kintock-Erie, Brown testified that he was transported there from the State Correctional Institution at Graterford. The building was fenced in. Upon arrival Brown was assigned a room with approximately twenty other people. The door to the room did not lock. Notes of Testimony, April 2, 2012, (N.T.) at 9-12; C.R. at 124-127. Brown testified that he was not free to come and go, though as he spent more time there, he received more passes to leave. There was a three day blackout period where he was not permitted to leave except to obtain identification. When he was able to leave, he signed in and out. N.T. at 13; C.R. at 128. He was able to leave the facility to look for employment. N.T. at 16; C.R. at 131. 2 Brown asserts and the record reflects that he was not housed at ADAPPT until July 11, 2008. 5
Parole Agent Gail Lewis, a parole agent at Kintock-Erie at that time, testified as to the dates Brown stayed at the facility and that Brown successfully completed the program. N.T. at 20; C.R. at 135. Ms. Poole (Poole), case manager at Kintock-Erie and the supervisor of Brown during his stay, testified that Brown received a successful release discharge. N.T. at 27; C.R. at 142. Poole testified that residents immediately upon arrival are allowed to obtain identification. Thereafter, residents are allowed five hours on a Saturday to leave to spend time with family and are allowed a religious day. Additional time away is earned if the resident has a job or goes to school. N.T. at 28; C.R. at 143. Poole testified that security cameras are monitored. N.T. at 33; C.R. at 148. Poole explained that if a resident wanted to leave the facility, we have to let them leave. If a staff member was ever to try to stop the resident from leaving, that person could be terminated. N.T. at 36; C.R. at 151. Regarding Gaudenzia Siena House, Brown testified that the program was housed in an old abandoned State Hospital and housed approximately 150 people. N.T. at 41; C.R. at 156. He was subject to search and drug tests and had to go through a metal detector when he entered. N.T. at 42; C.R. at 157. Brown stated that he was not allowed to leave or I d be violated. N.T. at 43; C.R. at 158. He was allowed to leave the facility for two or three hours a day to look for a job. There were security cameras monitored by a staff member. N.T. at 44-45; C.R. at 159-160. His room was searched once or twice while he was there. N.T. at 47; C.R. at 162. On cross-examination, Brown admitted that he was not escorted 6
by anyone when he left the facility. N.T. at 52; C.R. at 167. He admitted that he was free to come and go. N.T. at 53; C.R. at 168. Parole Agent Ebony Anderson (Agent Anderson) testified that residents at Gaudenzia Siena House could come and go as they will, as long as they get permission from parole staff. N.T. at 55; C.R. at 170. Regarding ADAPPT, Brown testified that the purpose of his going there was to complete an alcohol program. N.T. at 56; C.R. at 171. He got to the facility by public transportation. His room had four or five bunk beds. There was a three day blackout period when he first arrived. N.T. at 57-59; C.R. at 172-174. After that a resident could sign out for two hours to look for a job. N.T. at 60; C.R. at 175. The resident was subject to a search when he returned. N.T. at 61; C.R. at 176. In a decision recorded July 12, 2012, and mailed July 13, 2012, the Board denied Brown credit for any time spent at the three programs. The Board concluded: 4. It is concluded that Brown did not meet the burden of proof that he is entitled to credit under Cox [v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985)]. It has been established that Brown was in fact on parole while he was a resident at Kintock Erie, Gaudenzia Siena House and ADAPPT. Kintock Erie staff are [sic] specifically restricted from any means of physical force or restraint against residents and are prohibited by their own policies as a hands off facility from stopping any resident from leaving at will. Kintock Erie residents are permitted to leave the building to find and maintain employment, attend school, spend time with family, and attend religious services. The 7
doors at Kintock Erie are not locked. While at Gaudenzia Siena House, Brown was permitted to leave grounds without a staff escort or restraint to job search and for free time. There are no fences, locked doors, or guard towers at Gaudenzia Siena House and Brown agreed that while he was somewhat restricted while there, it was not the same type of security measures that are present at an SCI. While at ADAPPT, Brown was permitted to leave without staff escort to job search and attend outside programs. The doors are not locked at ADAPPT and there was no testimony of any security measures in place that would have prevented Brown from leaving at will. Board Decision, July 12, 2012, Conclusion of Law No. 4 at 4; C.R. at 192. basis: On August 17, 2012, Brown requested administrative review on this [T]he legislative parole violation max date of 10-23-2015 exceeds the entire remaining balance of the original sentence imposed by the court. The legislature s recalculation of a parole violator s maximum sentence pursuant to 61 P.S. Section 6138(a)(2) [3] violates both the seperation [sic] of powers doctrine of the state and Federal Constitutions, and also evicerates [sic] the judicial discretion which is provided to the courts pursuant to 42 Pa.C.S. [ ] 9721(a). Request for Administrative Review, August 17, 2012, (Request) at 1; C.R. at 193. Brown further asserted: 3 It appears that Brown actually refers to Section 6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa.C.S. 6138(a)(2), which states in pertinent part, if the parolee s recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and shall be given no credit for the time at liberty on parole. 8
A statute that mandates the denial of credit to a recommitted direct parole violator for time spent at liberty on parole does violated [sic] the seperation [sic] of powers doctrine for the following reasons: 1.) The phrase liberty on parole remains undefined by the legislature, therefore such a phrase cannot be used against the rights of a parolee, 2.) A denial/revocation of credit is transposed by the legislature into a term of days, months, and/or years, resulting in an altered maximum sentence that was originally imposed by a Pennsylvania court, and 3.) The practice of legislative sentencing extensions pursuant to 61 Pa.C.S. Section 6138(a)(2) are not codified under 18 Pa.C.S. Sections 1102-1105 of the Crimes Code as punishment for crimes, nor under 42 Pa.C.S. Section 9721(a) of the Sentencing Code as a sentencing alternative. Request at 3; C.R. at 195. Brown also claimed that he was denied due process because his maximum date was extended without a hearing or opportunity to be heard in a court rather than before the Board. In a decision mailed October 23, 2012, the Board denied Brown s request for administrative relief and concluded: Initially, it should be noted that you do not raise any claims regarding the Board s decision not to give you credit for the periods you resided at the ADAPPT, Gaudenzia Siena House and Kintock-Erie programs after the evidentiary hearing on that matter. Thus, you have now waived those claims for appeal purposes. As for your remaining claim, the Board had discretion to continue you on parole or recommit you as convicted parole violator for the offenses in question.... Since the Board chose to recommit as a convicted parole violator in this instance, the Board had statutory authority to 9
recalculate your sentence to reflect that you received no credit for the period you were at liberty on parole.... You were also advised of this potential penalty on the parole conditions that you signed on June 24, 2009. Therefore, the Board s recalculation of your maximum sentence date is not a violation of due process, the separation of powers doctrine or the double jeopardy clause. (Citations omitted). Board Decision, October 23, 2012, at 1; C.R. at 200. Attorney Fryling was assigned to represent Brown. After review of Brown s petition for review and the certified record, Attorney Fryling sought to withdraw and asserted that Brown s petition for review is without merit. Appointed counsel may withdraw from assisting an indigent parolee in appealing a parole revocation order, [w]hen, in the exercise of his professional opinion, counsel determines that the issues raised... are meritless, and when the... court concurs.... Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 928-929 (1988). In reviewing a motion to withdraw, this Court must make an independent evaluation of proceedings before the Board to determine whether a parolee s appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). When this Court agrees with counsel s assertion that the appeal is without merit, this Court will permit counsel to withdraw when counsel has fulfilled the technical requirements set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must (1) notify the parolee of the request to withdraw, (2) furnish the parolee with a copy of the brief, and (3) advise the parolee of his right 10
to retain new counsel to raise any new points that he might deem worthy of consideration. In the no merit letter or brief counsel must indicate the nature and extent of the review, the issues the parolee wishes to raise, and counsel s analysis in concluding that the appeal is without merit. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992). Brown petitioned for review and alleged: 13. Petitioner [Brown] objections [sic] to the Board decision is [sic] being raised in this Petition for Review, which are: A. The Board erred when Revocation Form PBPP-257N is address [sic] to parolee number HE9640. B. The Board erred when not given [sic] Petitioner [Brown] credit on his Backtime for all time spent on constructive parole not at liberty and all time spent at halfway house or Community Corrections Center. c. The Board erred when not given [sic] petitioner [Brown] credit for time serve [sic] on both the criminal charges and Board detainer. Petition for Review, November 19, 2012, Paragraph No. 13 at 3. With respect to whether the Board erred when it addressed the Revocation Form PBPP-257N to parole number HE9640, Attorney Fryling asserts that there was no indication that this number was used on any official paperwork. In his brief Brown asserts that [t]he Board Action recorded 10-12- 2011 based on Revocation Form PBPP-257N was addressed to Institution number HE9640 for a 1-5-2007 sentence that Petitioner [Brown] was under an alias Jose 11
Stultz with a maximum date of 2-23-2009 that have [sic] already expire [sic]. Brown s Brief at 8. While the certified record does contain references to Jose Stultz, this Court agrees with Attorney Fryling that there is no indication that an incorrect number was used on Brown s official papers. Further, even if there had been such a mistake, Brown does not identify any prejudice. With respect to Brown s contention that the Board failed to give him credit for all time spent on constructive parole, Attorney Fryling asserts: Mr. Brown s first argument is that the Board cannot change his maximum date, as it is a violation of his rights and constitutes a change in his sentence. However, the Board can add days for which the defendant was at liberty onto his maximum sentence and can require that he serve backtime.... The Board correctly sets forth in its letter dated October 23, 2012 the fact that the Board has statutory authority to recalculate Mr. Brown s sentence to reflect that he received no credit for the period he was on liberty on parole.... Further, the Commonwealth Court has held: If a parolee is recommitted... he must serve the remainder of his term of imprisonment he would have had to serve had he not been paroled and does not receive credit for time spent at library [sic] on parole. Weigle v. Pennsylvania Board of Probation and Parole, 886 A.2d 1183, 1187-1191 (Pa. Commw. Ct. 2005) (internal citations omitted). (Citations omitted). Attorney Fryling Letter, October 11, 2013, (Letter) at 3-4. 12
This Court agrees with Attorney Fryling that the Board has authority to recommit Brown to serve backtime and to recalculate Brown s maximum date. At the time the Board recommitted Brown and recalculated his maximum date, Section 6138 (a)(1-2) of the Code, 61 Pa.C.S. 6138(a)(1-2), provided 4 : (a) Convicted violators. (1) A parolee under the jurisdiction of the board released from a correctional facility who during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record may at the discretion of the board be recommitted as a parole violator. (2) If the parolee s recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and shall be given no credit for the time at liberty on parole. Clearly, the Board possessed the statutory authority to recommit Brown and to recalculate his maximum date. With respect to whether the Board erred when it failed to give Brown backtime for time spent at halfway houses or community corrections centers, Attorney Fryling asserts that Brown waived this issue. 4 This Section was amended on July 5, 2012. 13
This Court agrees. When the Board declined to give Brown credit for any time spent at the halfway houses or community corrections centers, Brown requested administrative relief. In his request for administrative relief, he did not raise the issue of credit at these institutions before the Board. If a parolee does not raise an issue before the Board, the parolee waives his right to appeal the issue in question and is barred from subsequent judicial review. Dear. The next issue raised by Brown in his petition for review is whether the Board erred when it failed to credit him with time served on both the Board detainer and on new criminal charges. In her Turner letter, Attorney Fryling states: Letter at 6-7. Mr [sic] Brown argues that he failed to receive credit for the period of March 10, 2010 to July 27, 20103 [2013]. It seems as though perhaps Mr. Brown is referring to the time period of March 10, 2010 to July 27, 2011. Mr. Brown was arrested on February 14, 2010 based on a warrant to commit and detain Brown and after being arrested by the City of Lebanon. Mr. Brown received credit from February 1, 2010 to March 10, 2010, as shown on the order to Recommit.... Mr. Brown was arrested on March 10, 2010. Mr. Brown received time credit of March 10, 2010 to July 27, 2011 on his sentence in Lebanon County, as reflected on the criminal docket at page 68 of the Reproduced Record. [5] Time served must be credited to either a defendant s original sentence or new sentence imposed due to new charges.... Mr. Brown received proper credit. (Citations omitted). 5 Actually, it is page 68 of the Certified Record. 14
2010, to July 27, 2010. In his brief, Brown asserts that he is entitled to credit from March 10, This Court agrees with Attorney Fryling that Brown must be referring to July 27, 2011, because that was the date that Brown was sentenced for the convictions of fleeing or attempting to flee an officer and DUI with a high rate of alcohol. July 27, 2011, was the date he became available to the Board to begin serving time on the sentence for which he was paroled. At the time of his July 27, 2011, sentencing, Brown was given credit for 505 days of time served. Brown was arrested and held without bail on the new criminal charges on March 10, 2010. He was sentenced on July 27, 2011. The time from March 10, 2010, through July 27, 2011, totaled 505 days. As Attorney Fryling stated, Brown received credit for this time on his new conviction. He is not entitled to credit on both sentences for the same time. This Court is satisfied with Attorney Fryling s determination that this issue is without merit. 6 Accordingly, this Court grants Attorney Fryling s request and affirms the order of the Board in the above-captioned matter. BERNARD L. McGINLEY, Judge 6 This Court notes that Attorney Fryling has complied with the notification requirements to Brown under Craig. 15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA David Brown, : Petitioner : : v. : : Pennsylvania Board of : Probation and Parole, : No. 2131 C.D. 2012 Respondent : O R D E R AND NOW, this 25th day of November, 2013, the petition of Tina M. Fryling to withdraw as counsel in the above-captioned matter is granted. The order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed. BERNARD L. McGINLEY, Judge