J. Moyer v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jeremy Moyer, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1666 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 JUDGE SIMPSON FILED: May 30, 2008 Jeremy Moyer (Moyer) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal of a Board order recommitting him to serve 21 months backtime as a technical and convicted parole violator. Additionally, Moyer s appointed counsel, Kent D. Watkins, Esq. (Counsel), petitions for leave to withdraw. For the following reasons, we affirm the Board s order and grant Counsel s application to withdraw. Moyer s recommitment results from violations of conditions imposed on his parole from three sentences. In early December 2004, Moyer began serving a two-year simple assault sentence imposed by the Northumberland County Common Pleas Court (sentencing court). Certified Record (C.R.) at 1-2. The sentence had a minimum expiration date of December 6, 2004 and a maximum date of October 18, 2006. Id. The sentencing court also imposed a concurrent two-year sentence for criminal trespass (trespass sentence). Id. Shortly thereafter, the neighboring Snyder County Common Pleas Court sentenced Moyer to two years incarceration for altered/forged/counterfeited documents or plates (altered documents sentence). Id. The sentence ran consecutive to the Northumberland County trespass sentence. Id. As a result, the trespass sentence and the altered documents sentence had a minimum expiration date of February 5, 2005, and a maximum expiration date of October 13, 2008. Id. For our purposes, these three sentences comprise Moyer s original state sentence to the extent they are consecutive. Effective June 21, 2005, the Board paroled Moyer from the original state sentence. Id. at 7. As a condition of parole, the Board required Moyer to refrain from ingesting alcohol and entering establishments that sell or dispense alcohol. Id. at 9. At the time of parole, 1,210 days remained on Moyer s original state sentence. On October 10, 2005, the Board lodged a detainer against Moyer upon information he was involved in an altercation while at a tavern. Id. at 10, 11. The police arrested Moyer on October 11, 2005, and charged him with simple assault, flight to avoid apprehension, harassment, disorderly conduct, and, public drunkenness (new county charges). Id. at 12. The sentencing court released Moyer on his own recognizance from the new county charges on March 16, 2006. Id. at 58. Moyer, however, remained incarcerated pursuant to the Board s detainer. 2 Shortly thereafter, the Board recommitted Moyer to serve 9 months backtime as a technical parole violator. Id. at 15. As evidence, the Board relied on Moyer s admission that he violated his parole. Id. In June 2006, Moyer pled guilty to one of the new county charges, simple assault. Id. at 59. The sentencing court initially imposed a sentence of nine to 24 months effective June 5, 2006 (new county sentence). Id. However, the sentencing court later modified the new county sentence on February 12, 2007. In particular, the sentencing court modified its June 5, 2006 sentencing order as follows: [Moyer] shall undergo imprisonment in the [county prison] for a period of time served (10/9/05 to 7/9/06) to eighteen (18) months. [Moyer] shall be immediately paroled this date. Id. at 48 (emphasis added) (modified sentencing order). Among other things, the modified sentencing order reduced the maximum date from 24 to 18 months and granted immediate parole this date. The effect of this modified sentencing order is at issue here. The modified sentencing order of February 12, 2007, seems to relate back to July 9, 2006, the end point of time served county credit. The modified sentencing order immediately paroled Moyer this date, but does not specify further the effective date. Thus, the effective date of immediate parole from the new county sentence 3 could be read either as July 9, 2006, the end point of time served, or as February 12, 2007, the date of pronouncement of the modification. After Moyer s June 2006 sentencing, but before the February 2007 modified sentencing order, the Board charged him as a convicted parole violator, and a revocation hearing ensued. Id. at 17. Represented by counsel, Moyer appeared at the hearing. To support the parole violation charges, a parole agent offered into evidence a certified copy of the new county conviction. Id. at 29. Based on this evidence, the Board recommitted Moyer to serve 12 months backtime as a convicted parole violator. Combined with the earlier backtime award, the Board recommitted Moyer to serve a total of 21 months backtime as both a technical and a convicted parole violator. Id. at 37. Significant for current purposes, the Board credited Moyer s original state sentence with 81 days for the period of March 16 to June 5, 2006 (Moyer s release on bail to the date of sentencing on the new county charges). Id. at 39. The Board calculated Moyer s new original state sentence maximum date as March 18, 2010. Id. Representing himself, Moyer filed a request for administrative relief. Relying on the modified sentencing order, Moyer sought credit for time served under both the Board s warrant and time served on the new county sentence. Id. at 42-45. 4 In response, the Board issued a modified recalculation order to reflect that Moyer became available to serve backtime on February 12, 2007, the date of pronouncement of the modified new county sentencing order. Id. at 51, 64, 65. The Board also credited Moyer s original state sentence with time served from October 10 through November 9, 2005, and March 16 through June 5, 2006, a total of 111 days. Id. at 65. Accordingly, the Board recalculated Moyer s original state sentence maximum to be February 15, 2010. Represented by Counsel, Moyer filed a second petition for administrative relief. Moyer generally alleged the Board failed to credit his original state sentence with all time served under the Board s warrant. Id. at 67. The thrust of this petition seems to be a request for credit to an earlier date because of the modified new county sentence parole effective this date. Denying Moyer s administrative appeal, the Board explained, at the time of Moyer s parole, 1,210 days remained on his original state sentence. Id. at 71. The Board credited Moyer s original state sentence with 111 days served on the Board s warrant as noted above. Subtracting this credit from the time remaining on the original state sentence, 1,099 days remained on Moyer s original state sentence. Moyer became available to serve backtime on February 12, 2007. This resulted in an original state sentence maximum of February 15, 2010. 5 Moyer appeals here.1 In his counseled petition for review, Moyer again alleges the Board failed to credit his original state sentence with unspecified time served under the Board s warrant. Upon further review, however, Counsel filed a petition to withdraw. In his petition, Counsel states he conducted an exhaustive review of the record and applicable case law to conclude Moyer s appeal is frivolous. In accord with Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), Counsel provided Moyer a no-merit letter explaining his appeal is frivolous.2 Counsel advised Moyer that the sentencing court could not retroactively parole him as of July 9, 2006.3 Counsel also advised the record did not reveal any other issues which may be raised on Moyer s behalf. Before this Court will grant a petition to withdraw, appointed counsel must satisfy the technical requirements set forth in Craig v. Pennsylvania Board of Probation & Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Appointed counsel must notify the parolee of his request to withdraw, furnish the parolee with a copy of a 1 Our review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with the law, and whether the necessary findings were supported by substantial evidence. 2 Pa. C.S. §704; Bolden v. Pa. Bd. of Prob. & Parole, 794 A.2d 440 (Pa. Cmwlth. 2002). 2 Although an indigent parolee is entitled to appointed counsel on appeal, this right does not require counsel to prosecute a frivolous appeal. Presley v. Pa. Bd. of Prob. & Parole, 737 A.2d 858 (Pa. Cmwlth. 1999). An appeal is wholly frivolous when it completely lacks factual or legal reasons that might arguably support the appeal. Id. 3 As noted above, however, the modified sentencing order is unclear as to the effective date of immediate parole. Certified Record (C.R.) at 48a. 6 brief complying with Anders v. State of California, 386 U.S. 738 (1967), or a nomerit letter that, in part, informs the parolee of his right to retain new counsel or submit a brief on his behalf. Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). If appointed counsel provides a no-merit letter, the letter must contain the nature and extent of counsel s review, the issues the parolee wishes to raise and counsel s analysis in concluding the parolee s appeal is frivolous. Id. We require counsel to comply with these requirements to ensure an inmate s claims are considered and counsel has substantial reasons for concluding those claims are frivolous. Reavis. Once appointed counsel satisfies these requirements, it is incumbent on this Court to make an independent evaluation of the merits of the appeal to determine whether it is wholly frivolous. Id. Here, Counsel notified Moyer of the request to withdraw and advised him of his right to file a brief on his own behalf or retain new counsel. Further, Counsel served Moyer with a copy of his petition to withdraw and a copy of the no-merit letter. Thus, Counsel complied with the technical requirements set forth in Turner. Additionally, Counsel s no-merit letter complies with Turner. It contains a statement indicating Counsel reviewed the certified record and the proceedings affecting Moyer. The no-merit letter also addresses the issue Moyer raises in his petition for review. Moreover, it sets forth Counsel s brief analysis of the issue and the basis upon which he determined it is frivolous. 7 We next examine the record to determine whether the issue Moyer raises in his petition for review is wholly frivolous. From the record before us, we agree with Counsel s assessment Moyer s appeal is frivolous. Moyer received all the credit for which he could possibly qualify for service under the Board s warrant. On October 11, 2005, Moyer was arrested on new charges and the Board issued its warrant under the original state sentence. From this point, Moyer was not serving time solely on the Board s warrant, and therefore no credit is due. Gaito v. Pa. Bd. of Prob. & Parole, 488 Pa. 397, 412 A.2d 568 (1980). On March 16, 2006, he was released on ROR bail on the new county charges. From this point, Moyer was serving solely on the Board warrant, and he was due credit. As discussed above, he received this credit from the Board. On June 5, 2006, Moyer was sentenced on the new county charges. Under Section 21.1 of the commonly known Parole Act,4 he must serve this new county sentence before completing his original state sentence. From this point, therefore, Moyer was no longer serving solely on the Board warrant. Indeed, at this point the Board s warrant lapsed because Moyer was serving only the new county sentence. 4 Act of August 5, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, P.L. 1401, 61 P.S. §331.21a. 8 The primary question in this case is when did Moyer complete service under the new county sentence and become available for service on the remainder of the original state sentence: was it the end date of time served under the modified new county sentence, or was it the pronouncement date of his parole? Counsel s conclusion the trial court could not retroactively parole Moyer is correct. Accordingly, we agree with Counsel that the Board properly used the pronouncement date of the modified new county sentence as the date to recommence credit toward Moyer s original state sentence. Consequently, we conclude Moyer s claims are frivolous. It is now clear that a retroactive parole date has no legal effect on the Board s calculations involving an original state sentence, because a sentencing court lacks authority to retroactively parole an offender. Banks v. Pa. Bd. of Prob. & Parole, 928 A.2d 384 (Pa. Cmwlth.), appeal denied, ___ Pa. ___, 936 A.2d 41 (2007) (sentencing court lacks authority to enter retroactive parole); Johnson v. Murray, 888 A.2d 28 (Pa. Cmwlth. 2005) (where a parolee is detained on new county charges and a Board detainer, a sentencing court lacks authority to parole the individual on a date prior to the sentencing date on the new charges); Bailey v. Pa. Bd. of Prob. & Parole, 591 A.2d 778 (Pa. Cmwlth. 1991) (same); Fleegle v. Pa. Bd. of Prob. & Parole, 532 A.2d 898 (Pa. Cmwlth. 1987) (same); Patrick v. Pa. Bd. of Prob. & Parole, 532 A.2d 487 (Pa. Cmwlth. 1987) (same). This rule makes sense, because the parolee cannot be available to begin serving backtime on his original sentence any earlier than when his release under a new sentence is announced. Banks. 9 Based on our review, Moyer s claim the Board failed to properly credit his original state sentence with time served on the Board s warrant lacks merit. The law is clear that the retroactive parole portion of Moyer s modified sentencing order is a nullity. Thus, he is not entitled to any credit beyond that granted by the Board, which ran from the pronouncement of the immediate parole from the new county sentence. Id. In sum, the Board s new original state maximum calculation is correct. Moyer s appeal is frivolous and, accordingly, we grant Counsel s application to withdraw. ROBERT SIMPSON, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jeremy Moyer, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1666 C.D. 2007 ORDER AND NOW, this 30th day of May, 2008, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED, and Counsel s Application for Leave to Withdraw as Counsel is GRANTED. ROBERT SIMPSON, Judge
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