A. Harris v. PA Board of Probation and Parole (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Antoine Harris, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1930 C.D. 2007 SUBMITTED: March 28, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: April 29, 2008 Antoine Harris petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board), denying his administrative appeal from the recalculation of his parole violation maximum following his recommitment as a convicted parole violator. In addition, Harris s appointed counsel, Kent D. Watkins of the Schuylkill County Public Defender s Office, petitions for leave to withdraw on the ground that Harris s appeal is frivolous. Harris was reparoled1 on October 4, 2005 from his 5 to 15-year sentence for robbery; at the time of reparole, his parole violation maximum date was September 5, 2011. He was arrested by Philadelphia police on June 6, 2006 on new criminal charges,2 and the Board issued a warrant the same day to detain Harris pending disposition of the new criminal charges. Harris posted bail the next day. On April 19, 2007, Harris pleaded guilty to firearms charges and received two consecutive sentences of 30 to 60 months confinement followed by 12 months of probation. Following a revocation hearing held on July 10, 2007, at which Harris was represented by counsel, the Board recommitted Harris as a convicted parole violator to serve 18 months of backtime and recalculated his parole violation maximum date to April 29, 2015. The Board denied Harris s request for administrative relief, which challenged only the recalculated parole violation maximum. Harris s petition for review to this court reasserts his objection to the new maximum date; he contends that the Board failed to credit him with all time served solely under its warrant. Counsel filed a petition to withdraw and a Turner letter3 in support thereof. In his Turner letter, Watkins adequately details the issue raised, which is discussed at length in our analysis below, the nature and extent of his review, and 1 Harris was initially paroled in September 2001, after the expiration of his minimum sentence. He was recommitted as a technical parole violator by decision mailed on June 25, 2004. 2 Philadelphia police arrested Harris on charges of aggravated and simple assault, criminal conspiracy, recklessly endangering another person, and firearms violations (carrying a firearm on public streets in Philadelphia without a license). Criminal Arrest and Disposition Report, Certified Record (CR), p. 24. 3 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). 2 his analysis in concluding that the appeal is frivolous. See Hont v. Pa. Bd. of Prob. and Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996) (establishing requisite elements of adequate Turner letter). Watkins notified Harris of the withdrawal request, provided him with a copy of the Turner letter, and advised him of his right to obtain substitute counsel or to raise any points that he deemed worthy of merit in a pro se brief to this court. In so doing, Watkins complied with the technical requirements of Craig v. Pa. Bd. of Prob. and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Harris did not file a brief or obtain substitute counsel. In reviewing the motion to withdraw in conjunction with Harris s appeal, we independently evaluate the record to determine whether the appeal is frivolous. Dear v. Pa. Bd. of Prob. and Parole, 686 A.2d 423, 426 (Pa. Cmwlth. 1996). After reviewing the record, we conclude that the Board did not err. As counsel explains in the Turner letter, because Harris was convicted of committing new crimes while on parole and recommitted as a convicted parole violator, he is not entitled to credit against the original sentence for any period of time spent at liberty on parole. Section 21.1(a) of the Act commonly referred to as the Parole Act,4 61 P.S. §331.21a(a). The period of time subject to forfeiture includes not only time served since he was most recently reparoled in 2005, but also time served in good standing while on parole from 2001 to 2004 prior to his recommitment for technical violations. Dorsey v. Pa. Bd. of Prob. and Parole, 854 A.2d 994 (Pa. Cmwlth. 2004); Houser v. Pa. Bd. of Prob. and Parole, 682 A.2d 1365 (Pa. Cmwlth. 1996). 4 Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401. 3 The Board properly recalculated Harris s parole violation maximum date. When Harris was reparoled on October 4, 2005, he had 2162 days remaining on his sentence; adding 989 days that Harris was previously on parole (from September 5, 2001 to May 21, 2004) yields a total of 3151 days remaining on the original sentence. The Board credited Harris with 316 days when he was held solely on the Board s warrant (i.e., from the date he posted bail on June 7, 2006, to the date of his guilty plea and sentencing on April 19, 2007). Harris became available to serve his backtime on July 25, 2007. (CR, p. 43.) Adding the remaining 2835 days to July 25, 2007 results in a parole violation date of April 29, 2015. Accordingly, we affirm the order of the Board and grant appointed counsel s petition for leave to withdraw. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Antoine Harris, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1930 C.D. 2007 ORDER AND NOW, this 29th day of April, 2008, the petition to withdraw as counsel in the above-captioned matter is hereby GRANTED, and the order of the Pennsylvania Board of Probation and Parole is AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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