F. S. Winslow v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA F. Scott Winslow, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1220 C.D. 2007 Submitted: March 28, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: May 12, 2008 This case is before us on Kent D. Watkins (Counsel) petition to withdraw from his representation of F. Scott Winslow (Petitioner), who petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied his request for administrative relief from the Board s modification of prior Board action, which changed Petitioner s parole violation maximum date. We grant Counsel leave to withdraw and affirm the Board s determination. On March 15, 1994, Petitioner was sentenced in Chester County to serve 6 concurrent 48 to 120 month sentences after a conviction on six counts of drug manufacture/sale/delivery or possession with intent to deliver. On that same date, Petitioner was also sentenced in Chester County to serve 6 consecutive terms of probation, totaling 10 years of probation. On April 20, 1998, Petitioner was released on parole. At the time of his parole, Petitioner s maximum date was set at April 6, 2004. On May 12, 1999, Petitioner was declared delinquent. On August 25, 1999, Petitioner was recommitted to a state correctional institution as a technical parole violator (TPV) to serve 6 months for violation of condition #7, failure to successfully complete the Save Program. Petitioner s maximum date was set at May 25, 2004. On January 11, 2000, Petitioner was reparoled. On May 1, 2000, Petitioner was recommitted to a state correctional institution as a TPV to serve 12 months for violation of condition #5A, use of drugs. On June 18, 2001, Petitioner was again reparoled. At the time of his reparole, Petitioner s maximum date was set at April 25, 2004. On March 24, 2002, Petitioner was arrested by the West Whiteland Township Police for recklessly endangering another person, driving under the influence and fleeing/eluding police. On February 3, 2003, Petitioner was recommitted as a convicted parole violator (CPV) to serve 12 months backtime. Petitioner s maximum date was set at November 22, 2006. On February 29, 2004, Petitioner was again reparoled. On January 2, 2005, Petitioner was arrested by the Uwchlan Police Department for driving under the influence and fleeing or attempting to elude police. On November 15, 2005, Petitioner was recommitted as a CPV to serve 6 months, when available. Petitioner s max date was set at January 11, 2008. On February 13, 2006, Petitioner was again reparoled. On July 11, 2006, Petitioner was arrested by the West Whiteland Township Police for aggravated assault, simple assault, false identification to law enforcement, accidents involving damage to attended vehicle or property, resisting arrest or other law enforcement, accidents involving death or personal injury while not properly licensed, recklessly endangering another person, habitual offenders, 2 fleeing or attempting to elude police officers, disorderly conduct, driving while operating privileges suspended or revoked, reckless driving, careless driving, limitations on driving on left side of roadway, overtaking vehicle on the right, limitations in overtaking on the left, maximum speed limit, traffic control signals, stop signs and yield signs. Petitioner did not post bail. The Board posted a warrant on July 11, 2006. On November 22, 2006, the Board cancelled the warrant. On February 20, 2007, a parole revocation hearing was held at the Chester County prison. Petitioner was present and waived his right to representation. Petitioner did not make any objections at the parole revocation hearing. On March 23, 2007, Petitioner was recommitted to a state correctional institution as a CPV to serve an unexpired term of 9 months, 9 days. Petitioner s parole violation maximum date was set at February 17, 2009. On May 2, 2007, the Board modified the prior Board action by changing Petitioner s parole violation maximum date to December 30, 2007. On May 4, 2007, the Board issued an order rescinding the Board action of May 2, 2007, and again modified the prior Board action by changing Petitioner s parole violation maximum date to February 17, 2009. The Board noted that Petitioner owed 697 days backtime. On May 25, 2007, Petitioner requested administrative relief before the Board contending that his maximum date had been calculated wrong. By letter dated May 31, 2007, the Board denied Petitioner s request for administrative relief. Petitioner timely petitioned our court for review. In his petition for review to this court, Petitioner argues the following: 8.) The Board[ ]s denial of Petitioner s Administrative Relief was erroneous because Parole Agents testimony 3 and Hearing Examiner s testimony at Hearing on February 20, 2007 ¦. Stating Petitioner owed the ¦[Board] (9) months and a couple days back time since his last release. 9.) The Board[ ]s denial of Petitioner s Administrative Relief was also erroneous because ¦[Board] has illegally taken Good Standing Time on ¦[TPV s] that amounted from April 21, 1998 thru March 19, 1999 and from January 21, 2000 thru February 10, 2000. 10.) The Board[ ]s denial of Petitioner s Administrative Relief was also erroneous because ¦[Board] has failed to give Petitioner TIME CREDIT spent in (2) Drug & Alcohol/Treatment Facilities, that are considered [CUSTODY] that were Ordered by the ¦[Board]. Gaudenzia House ¦June 18, 2001 thru October 1, 2001 ¦Karen Foundation January 11, 2000 thru January 21, 2000. 11.) The Board[ ]s denial of Petitioner s Administrative Relief was also erroneous because the ¦[Board] has failed to give Petitioner CREDIT for Time Spent on (2) Leg Monitors, from November 23, 2001 thru March 22, 2002 and from July 21, 2004 thru September 21, 2004. Both times Petitioner spent on the Leg Monitors Ordered by the Board, fall LIBERTY/CUSTODY restrained. *** 13.) The [B]oard[ ]s denial of Petitioner[ ]s administrative relief was also erroneous because the ¦[Board] has a previous parole violation max date of January 11-2008 for Petitioner prior release of February 13-2006. And Petitioner has enclosed a copy of the ¦[Board s] last projected parole violation Max date of November 22-2006. And Petitioner has no previous street time for the ¦[Board] to reach a projected parole violation Max date of February 17-2009. Petition for Review at 2-3. (Citations omitted). 4 Counsel now seeks this Court s leave to withdraw as counsel by submitting a no-merit letter. The no-merit letter must contain (1) the nature and extent of the counsel s review, (2) the issues petitioner wishes to raise, and (3) counsel s analysis in concluding petitioner s appeal to be frivolous. Epps v. Pennsylvania Board of Probation and Parole, 565 A.2d 214, 216 (Pa. Cmwlth. 1989)(citing Commonwealth v. Turner, 518 Pa. 491, 494, 544 A.2d 927, 928 (1988)). An appeal will be considered frivolous if it is determined to lack any basis in law or fact. Smith v. Pennsylvania Board of Probation and Parole, 542 Pa. 500, 547 A.2d 558 (1990). Frivolous is not synonymous with lack of merit. Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974). Review of the merits of the petition is necessary to determine whether it is frivolous. Id. In performance of his duties, Counsel has reviewed the record certified by the Board to this court and set forth in his letter the issues raised in Petitioner s petition for review from the Board s determination. After conducting an exhaustive examination of the record, as hereinafter set forth, Counsel concludes that Petitioner s petition is without merit and lacks support in either law or fact. Petitioner s administrative appeal questions whether the Board failed to give Petitioner all credit for periods of incarceration or for all time served strictly pursuant to the Board s warrant. Counsel asserts that this contention is without merit because the calculations of the Board are correct and Petitioner was given the appropriate backtime credit for the time he was incarcerated pursuant to the Board s warrant. We agree with Counsel. The Board s recalculation dated February 3, 2003, sets Petitioner s maximum release date at November 22, 2006. The Petitioner did not request 5 administrative relief or appeal this decision. The Board s action of November 15, 2005, recommitted Petitioner to serve 6 months backtime. Thereafter, the Board re-calculated Petitioner s maximum release date at January 11, 2008. Petitioner did not request administrative relief or appeal this decision either. In his petition for review, Petitioner now claims that the Board failed to properly award him credit when it recalculated Petitioner s maximum release dates in 2003 and 2005. When a Petitioner fails to file for administrative relief on a prior decision, any issues relating to this prior decision which are raised in a subsequently appealed decision are waived, as the appeal period for the prior decision has expired. Cadogan v. Pennsylvania Board of Probation and Parole, 541 A.2d 832 (Pa. Cmwlth. 1988). Thus, the issues Petitioner raised regarding prior decisions have been waived. On Petitioner s current conviction, Petitioner did not post bail, but he did receive credit on his new conviction from July 11, 2006 through January 19, 2007, the date he was sentenced. Petitioner had been paroled on February 13, 2006, at which time his maximum release date was calculated at January 11, 2008. On January 19, 2007, Petitioner was sentenced on the current conviction. When considering that Petitioner did not post bail and that his recommitment date as a CPV was March 23, 2007, the February 17, 2009 date would be correct.1 We conclude that Counsel has thoroughly examined the certified record, set forth the issues, researched the applicable law and analyzed the merits in Petitioner s appeal. We have also reviewed the issues independently and agree 1 Petitioner owed 697 days backtime. Starting from March 23, 2007, Petitioner s recommitment date, Petitioner would complete 283 days in 2007, 366 days in 2008 and 48 days in 2009, resulting in a max date of February 17, 2009. 6 with Counsel s assessment that Petitioner s appeal from the revocation of his parole has no basis in law or in fact and is without merit. In view of our conclusion that the letter is submitted in compliance with the requirements of Turner, the application of Counsel filed with this court for leave to withdraw his appearance as Petitioner s counsel is granted and the order of the Board is affirmed. JIM FLAHERTY, Senior Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA F. Scott Winslow, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1220 C.D. 2007 ORDER AND NOW, this 12th day of May, 2008, the application of counsel for leave to withdraw his representation is granted, and the order of the Pennsylvania Board of Probation and Parole is hereby affirmed. JIM FLAHERTY, Senior Judge
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