H. Butler v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Horace Butler, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1825 C.D. 2007 Submitted: March 28, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: May 13, 2008 Before this Court is an application for leave to withdraw as counsel filed by Kent D. Watkins, Esquire (Counsel). Counsel is appointed to represent the inmates of the State Correctional Institution at Mahanoy on matters involving parole revocation/violation hearings and appeals and mental health hearings and appeals. Counsel has been appointed to represent Horace Butler (Petitioner) in the present case. Petitioner filed a petition for review with this Court, seeking review of a decision of the Pennsylvania Board of Probation and Parole (Board), which denied his request for administrative relief after the Board recommitted him as both a technical parole violator and a convicted parole violator. Petitioner sought administrative relief alleging that his revocation hearing was untimely. Counsel filed an application for leave to withdraw and an accompanying letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), requesting that he be permitted to withdraw on the basis that no grounds for appeal exist and the appeal is frivolous. Petitioner was serving a five (5) to ten (10) year sentence imposed by the Court of Common Pleas of Philadelphia County for robbery, and he was concurrently serving a sentence of two and one-half (2 ½) to five (5) years for aggravated assault. (C.R. at 1). By order dated September 20, 2002, Petitioner was paroled to a community corrections center. (C.R. at 8). At that time, his minimum expiration date was calculated to be March 22, 2002, and his maximum expiration date was calculated to be March 22, 2007. Id. On January 23, 2003, Petitioner was successfully discharged from the community corrections center under maximum supervision. (C.R. at 15). Thereafter, Petitioner was sanctioned for possession of drugs. Id. On June 1, 2005, Petitioner was sanctioned again and admitted to an inpatient drug treatment program for ninety (90) days. Id. On September 8, 2006, Petitioner was arrested in Philadelphia County for driving under the influence of alcohol or drugs. The Board filed a warrant to detain Petitioner that same day. (C.R. at 15, 16). Petitioner posted bail on October 16, 2006. (C.R. at 16). While that charge was pending, Petitioner was arrested again on December 5, 2006, for robbery, possession of a firearm and aggravated assault. (C.R. at 15). On December 6, 2006, bail for those charges was set at $100,000.00, with Petitioner required to post ten percent (10%). (C.R. at 48). On December 27, 2006, Petitioner pled guilty to the charge of driving under the influence and received a sentence of six (6) months probation. (C.R. at 16). Although Petitioner was sentenced to probation, Petitioner remained incarcerated in Philadelphia County on the robbery, firearm and aggravated assault charges. (C.R. at 49). 2 On January 18, 2007, the Board recommitted Petitioner to a state correctional institution as a technical parole violator to serve his unexpired term when available. (C.R. at 11). His bail for the robbery, firearm and aggravated assault charges was thereafter reduced to release on recognizance (ROR) as of January 23, 2007. (C.R. at 48). Petitioner was subsequently returned to a state correctional facility on January 31, 2007. Id. A parole revocation hearing was then conducted on May 24, 2007, with Counsel representing Petitioner.1 (C.R. at 18, 20-29). During the revocation hearing, Counsel raised an objection as to the timeliness of the hearing. (C.R. at 24-26). However, the Hearing Examiner overruled Counsel s objection. Id. Following the hearing, the Board recommitted Petitioner as both a technical parole violator and a convicted parole violator. (C.R. at 54). Petitioner requested administrative relief reiterating his allegation that his parole revocation hearing was untimely. However, the Board denied Petitioner s request by letter mailed September 17, 2007. (C.R. at 59). In this letter, the Board indicated that since Petitioner was returned to a state correctional institution on January 31, 2007, and his parole revocation hearing was held on May 24, 2007, a period of 113 days, said hearing was timely. Petitioner subsequently filed his petition for review with this Court. In this petition, Petitioner alleged that the Board failed to hold a revocation hearing within one hundred twenty (120) days from [his] return to a state correctional facility or official verification of petitioner s conviction. The Board thereafter forwarded a copy of the certified record to Counsel. Upon review of this record, Counsel determined that no grounds for appeal existed and that Petitioner s appeal was frivolous. Counsel filed an application for leave to withdraw with this Court. Accompanying this application was a 1 Petitioner waived his right to a panel hearing. (C.R. at 19). 3 letter from Counsel detailing the reasons why he found the appeal lacked merit and was frivolous. Copies of this letter were forwarded to Petitioner, the Board and the Office of Attorney General. In Turner, our Supreme Court set forth the proper procedure to be followed when court-appointed counsel seeks to withdraw from representation on the basis that issues raised by the petitioner are frivolous. This Court has interpreted Turner as requiring counsel to file a no-merit letter containing: (1) the nature and extent of counsel s review; (2) the issues the petitioner wishes to raise; and (3) counsel s analysis in concluding that the petitioner s appeal is frivolous. Vandermark v. Pennsylvania Board of Probation and Parole, 685 A.2d 628 (Pa. Cmwlth. 1996). A wholly frivolous appeal is one that is completely devoid of points that might arguably support an appeal. Congo v. Pennsylvania Board of Probation and Parole, 522 A.2d 676 (Pa. Cmwlth. 1987). Counsel must satisfy these requirements before we may consider any request to withdraw an appearance. Vandermark. Moreover, in reviewing a petition to withdraw, this Court must make an independent evaluation of the proceedings before the Board to determine whether the petitioner s appeal is wholly frivolous. Id. Although counsel should not be forced to pursue a frivolous contention, the petitioner's right to representation on appeal must be protected. Hont v. Pennsylvania Board of Probation and Parole, 680 A.2d 47 (Pa. Cmwlth. 1996). Thus this Court has previously determined that counsel must fully comply with the procedures outlined in Turner to ensure that each of the petitioner's claims has been considered and that counsel has a substantive reason for concluding that those claims are meritless. Epps v. Pennsylvania Board of Probation and Parole, 565 A.2d 214 (Pa. Cmwlth. 1989). 4 Moreover, a parole revocation hearing must be held within 120 days from the date the Board receives official verification of a conviction unless the parolee is confined outside the jurisdiction of the Department of Corrections. 37 Pa. Code §71.4(1). In that situation, the revocation hearing must be held within 120 days of the official verification of the return of the parolee to a state correctional facility. 37 Pa. Code §71.4(1)(i). This Court has held that the Board's acquisition of jurisdiction of an inmate formerly outside its jurisdiction triggers the running of the 120-day period. Mack v. Pennsylvania Board of Probation and Parole, 654 A.2d 129 (Pa. Cmwlth. 1995). In Mack, we explained, as follows: Unreasonable and unjustifiable delays which are not attributable to the parolee or his counsel do not toll the running of the 120 days. Where a parolee is held at the county institution solely as a result of the Board's action, the Board is not warranted in delaying a revocation hearing until 120 days after the parolee's return to a state correctional facility. Furthermore, a parolee being held at a county institution as a result of Board action in the form of a detainer places the parolee within the Board's jurisdiction, and the Board must conduct a hearing within 120 days from the date which it acquires jurisdiction. Mack, 654 A.2d at 131 (citations omitted). Counsel has filed a letter in which he attempts to provide an analysis of why Petitioner s appeal is frivolous. Counsel explains that Petitioner received ROR bail on January 23, 2007. Hence, from January 23, 2007, through January 31, 2007, Petitioner was held in a county correctional institution solely as a result of the Board s detainer. Counsel asserts that because Petitioner was held solely on the Board s detainer, the exception to the 120-day rule stated above is inapplicable because Petitioner was not confined outside the jurisdiction of the Board. Counsel writes: [t]he [Board] has jurisdiction because the parolee was released by the county authorities to 5 the state correctional institution by the granting of ROR bail.2 Because the [Board] acquired jurisdiction on January 23, 2007, the 120 days would have run on May 23, 2007. (Counsel s Turner letter at 3, attached to application for leave to withdraw) (Emphasis added). We note that the revocation hearing occurred on May 24, 2007, which would appear to make it untimely by one (1) day based upon the analysis offered by Counsel. However, despite the fact that Counsel calculated the deadline for the revocation hearing to be May 23, 2007, Counsel inexplicably never asserts that the hearing on May 24, 2007, was untimely. Instead, Counsel simple states that in light of his exhaustive examination of the certified record and research of applicable case law, he has concluded that the appeal from the revocation of parole has no basis in law or in fact. Hence, Counsel concludes that the appeal is frivolous. It is evident from Counsel s no merit letter that he engaged in a thorough review of the certified record, set forth the issue to be addressed on appeal and provided an analysis of the timeliness of the revocation hearing. Nevertheless, we must conclude that counsel s no-merit letter is defective as a result of Counsel s analysis of the timeliness of the revocation hearing. Rather than setting forth an explanation as to why Counsel believes that the revocation hearing was timely, Counsel sets forth an argument that, if accepted and if preserved below,3 would cause this Court to believe that Petitioner s revocation hearing was untimely. Under those circumstances, we cannot conclude that Petitioner s appeal is wholly frivolous, particularly in light of our decision in Mack. 2 Counsel cites Hartage v. Board of Probation and Parole, 662 A.2d 1157 (Pa. Cmwlth. 1995), although Counsel mistakenly identifies the petitioner as Hartagen. 3 We reach no conclusion as to whether this issue was properly preserved below. 6 As we are perplexed by the filing of a Turner letter that sets forth a potential basis to support the appeal, we consider the possibilities that this Court may have misconstrued Counsel s argument or that Counsel inadvertently may have misstated his argument or facts in the Turner letter or been confused as to the frivolity of the claim. Therefore, while we must deny Counsel s application for leave to withdraw and refrain from reaching the merits of Petitioner s appeal, we do so without prejudice to Counsel to file a second application for leave to withdraw. In the event that Counsel still believes this matter to be wholly frivolous, Counsel shall file a second application for leave to withdraw more fully setting forth his analysis within (30) days of the date of this opinion and order. Alternatively, if Counsel has reconsidered this matter and concluded that Petitioner s appeal has merit, Counsel shall submit a brief in support of the merits of the appeal within thirty (30) days of the date of this opinion and order. JOSEPH F. McCLOSKEY, Senior Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Horace Butler, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1825 C.D. 2007 ORDER AND NOW, this 13th day of May, 2008, the application for leave to withdraw as counsel, filed by Kent D. Watkins, Esquire (Counsel), is hereby denied without prejudice. Counsel is hereby ordered to either: (1) file a second application for leave to withdraw within thirty (30) days of the date of this order; or (2) file a brief in support of the merits of the appeal within thirty (30) days of the date of this order. JOSEPH F. McCLOSKEY, Senior Judge
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