C. Williams, Sr. v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Christopher Williams, Sr., Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1738 C.D. 2007 Submitted: June 6, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: July 10, 2008 Christopher Williams, Sr., (Williams) has filed a petition for review (PFR) of the August 22, 2007, order of the Pennsylvania Board of Probation and Parole (Board), which dismissed Williams petition for administrative review as untimely. Appointed counsel has filed an application for leave to withdraw. We grant counsel s application and affirm the Board. On November 15, 2006, the Board issued a decision to recommit Williams as a technical parole violator to serve nine months backtime, setting his parole violation maximum date as September 24, 2008. (C.R. at 1.) The Board mailed the decision on December 11, 2006. (C.R. at 2.) On June 28, 2007, the Board received a petition for administrative review from Williams challenging the September 24, 2008, maximum date. (C.R. at 3-4, 6.) The Board dismissed Williams petition as untimely pursuant to 37 Pa. Code ยง73.1(b) (stating that the Board must receive a petition for administrative review within thirty days of the mailing date of the Board s determination). (C.R. at 6.) Williams petitioned this court for review. The Board filed a motion to limit the issues to the timeliness of Williams appeal, and this court granted the motion. Appointed counsel filed an application for leave to withdraw, asserting that, because the certified record contains nothing that would support an argument that Williams petition for administrative review was timely, Williams PFR is frivolous. Williams filed a memorandum of law in response to the application to withdraw, asserting that his June 28, 2007, petition for administrative review was timely because he was challenging the Board s June 11, 2007, decision,1 not the Board s November 15, 2006, decision. We now address counsel s application to withdraw. When counsel determines that the issues raised by a petitioner are frivolous, and this court concurs, counsel will be permitted to withdraw. Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). However, counsel also must satisfy the 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) 1 Williams states that the Board s June 11, 2007, decision denied him parole and required him to serve his unexpired term to September 24, 2008. 2 furnish the parolee with either a copy of a brief satisfying the requirements of Anders v. State of California, 386 U.S. 738 (1967), or a no-merit letter satisfying the requirements of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);2 and (3) inform the parolee of his right to retain new counsel or submit a brief on his own behalf. Here, counsel sent Williams a letter dated January 25, 2008, stating that counsel: (1) reviewed the record; (2) determined that Williams appeal was without merit; and (3) planned to file a petition to withdraw. Counsel advised Williams that he may retain new counsel or raise any additional points with this court. (Counsel s 1/25/08 letter, appendix to counsel s brief.) Counsel also furnished Williams with a copy of a brief concluding that nothing in the record would support an argument that Williams petition for administrative review was timely. (Counsel s brief at 6.) These documents are sufficient to satisfy the requirements of Craig. Our next step is to conduct an independent review of the record to determine whether counsel correctly concluded that nothing in the record would support an argument that Williams petition for administrative review was timely. Reavis. The record contains the Board s November 15, 2006, decision, which set the September 24, 2008, maximum date. In order for Williams to timely challenge that date, Williams needed to petition the Board within thirty days of the December 2 A no-merit letter under Turner must contain: (1) the nature and extent of counsel s review; (2) the issues the parolee wishes to raise; and (3) counsel s analysis in concluding that the parolee s appeal is frivolous. Reavis. 3 11, 2006, mailing date of the November 15, 2006, decision. However, Williams did not petition the Board until June 28, 2007. Thus, we agree with counsel that Williams petition for administrative review was untimely and that his PFR is frivolous.3 Accordingly, we grant counsel s application for leave to withdraw and affirm the Board. _____________________________ ROCHELLE S. FRIEDMAN, Judge 3 Although Williams asserts that he was appealing the Board s June 11, 2007, decision, the time for challenging the September 24, 2008, maximum date was within thirty days of December 11, 2006. By failing to challenge the maximum date when the Board set that date, Williams waived any future challenge to it. 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Christopher Williams, Sr., Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1738 C.D. 2007 ORDER AND NOW, this 10th day of July, 2008, the application for leave to withdraw is granted, and the order of the Pennsylvania Board of Probation and Parole, dated August 22, 2007, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge
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