           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nelson Coffield,                        :
                    Petitioner          :
                                        :
      v.                                : No. 1621 C.D. 2017
                                        : SUBMITTED: July 6, 2018
Pennsylvania Board of                   :
Probation and Parole,                   :
                  Respondent            :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                      FILED: August 9, 2018

      Nelson Coffield (Petitioner) petitions for review of the Pennsylvania Board of
Probation and Parole’s (Board) October 2, 2017 Order affirming in part and
reversing in part its April 21, 2017 decision to recalculate Petitioner’s maximum
parole violation expiration date as February 20, 2023. Petitioner’s appointed
counsel, Nicholas E. Newfield, Esquire (Counsel), has submitted an Amended
Application for Leave to Withdraw Appearance (Amended Application), in which
Counsel asserts the Petition for Review (Petition) is frivolous and seeks our
permission to withdraw from representation.          We deny Counsel’s Amended
Application and direct Counsel to file either a proper no-merit letter or an advocate’s
brief within 30 days of this opinion and order.
      On January 11, 2007, Petitioner pled guilty in the Court of Common Pleas of
Montgomery County (Trial Court) to one count of criminal conspiracy and one count
of possession with intent to deliver (PWID), and was also found guilty of two counts
of unlawful possession of a controlled substance and two additional counts of PWID.
Certified Record (C.R.) at 1.1 Thereafter, Petitioner was sentenced to an aggregate
term of 6 to 12 years in prison, with a maximum parole violation date of April 7,
2018. Id. at 1-3. Petitioner was eventually paroled on April 7, 2012. Id. at 5.
       On March 3, 2016, Petitioner was arrested after a traffic stop, during which
law enforcement officers discovered 59 narcotic pills and $840 in cash. Petitioner
was subsequently charged with one count each of PWID, unlawful possession of a
controlled substance, possession of drug paraphernalia, and operation of a motor
vehicle with inoperative rear lights. Id. at 12-16. On September 21, 2016, Petitioner
pled guilty to the PWID charge.2 Id. at 27.
       Consequently, on March 1, 2017,3 the Board ordered Petitioner to be
recommitted as a convicted parole violator to serve 24 months of backtime, “pending
sentencing [for the PWID] conviction and [Petitioner’s] return to a State
Correctional Institution [(SCI)].” Id. at 38. This prompted Petitioner to submit an
administrative remedies form on April 10, 2017, in which he challenged the length
of his recommitment and the amount of time credit the Board had given him for
being detained since his March 3, 2016 arrest. Id. at 44-45.
       On March 29, 2017, the Trial Court sentenced Petitioner to 3 to 8 years in
prison for the PWID conviction. Id. at 40-41. On April 21, 2017, the Board


       1
          The Department of Corrections’ “Sentence Status Summary” also indicates that
Petitioner’s probation, which was connected to a previous conviction for unlawful possession of a
controlled substance, was revoked on January 11, 2007. However, it is not clear from the record
when Petitioner committed this crime or when he was convicted. C.R. at 1.

       2
         The remaining charges stemming from Petitioner’s March 3, 2016 arrest were nolle
prossed by the Montgomery County Office of the District Attorney. Id. at 40.

       3
           This decision was mailed to Petitioner on March 3, 2017. Id. at 39.


                                                 2
recalculated Petitioner’s maximum parole violation date as February 22, 2023.4 Id.
at 63-64. On May 15, 2017, Petitioner sent Alan Robinson, Esquire, the Board’s
Chief Counsel, a letter stating:

                My name is Nelson Lateef Coffield . . . I am currently
                incarcerated in SCI Graterford. I was paroled on 5/12/2012
                [and] I was on [probation] when released until 2018. I
                caught new criminal charges on March 3, 2016 [and] a
                detainer was lodged against me on this same day from
                state parole. I was in [Montgomery County Correctional
                Facility] until I was sentenced on March 27, 2017 [sic] to
                a new 3-8 year state sentence. I received my green sheet
                on March 3, 2017 for charges [regarding which] I [had
                offered an] open guilty plea on Sept[ember] 21, 2016,
                which I received a 24[-]month parole hit for. I received a
                second green sheet on 5/11/17 stating my max [parole
                violation] date was changed from 4/7/18 to 2/22/2023. It
                says I owed 5 year[s,] 10 m[onths, and] 26 day[s] of
                backtime . . . [N]one of my street time was credited [nor]
                was the 14 month[s] of jail time I have [served] credited
                toward backtime. I would like an evidentiary hearing
                [and] was referred to write you to do so. Can you please
                tell me or guide me on steps I got to take or what I need to
                do to try to resolve the matters[?] [T]hank you for your
                concern.
Id. at 67.
       Petitioner filed a second administrative remedies form on May 24, 2017, in
which he challenged the Board’s April 21, 2017 decision on numerous constitutional
bases, claimed that the Board had improperly altered his judicially imposed
sentence, and maintained that he was being detained pursuant to an illegal contract
with the Board. Id. at 69-76. On October 2, 2017, the Board determined that it had
improperly calculated Petitioner’s maximum parole violation date and the correct
date was actually February 20, 2023, not February 22, 2023. Thus, the Board granted


       4
           This decision was mailed to Petitioner on May 5, 2017. Id. at 64.

                                                 3
Petitioner’s challenge in part to correct this mistake, but otherwise denied his
requests for relief. Id. at 77-79.5
       On October 6, 2017, Attorney Robinson sent a letter to Petitioner explaining
the Board’s reasons for its October 2, 2017 decision. Id. at 80. First, the Board had
dismissed Petitioner’s April 10, 2017 challenge due to its untimeliness. Id. Second,
turning to Petitioner’s more recent requests for relief, Attorney Robinson stated that
Petitioner was “required to serve the remainder of [his] original term and [was] not
entitled to credit for any periods of time [he was] at liberty on parole,” because
Petitioner had been “recommitted as a convicted parole violator.” Id.                      Third,
Petitioner could not receive credit for time served between his March 3, 2016 arrest
and his March 29, 2017 sentencing, “because [he was] not detained solely by the
Board during that period.”           Id.6   Finally, Petitioner’s actual maximum parole
violation date was February 20, 2023, meaning that the Board’s original date
calculation was incorrect. Id.
       Petitioner submitted a pro se Petition to our Court on November 1, 2017.
Therein, he argued that the Board had erred by choosing to “to take all time served
on parole in ‘good standing’ and to only give him (2) two days credit towards his
original sentence without conducting an individual assessment of the facts and
circumstances surrounding his parole violation and revocation.” Petition at 2. In
addition, Petitioner claimed that the Board had improperly altered his judicially



       5
           The Board mailed its October 2, 2017 decision to Petitioner on October 5, 2017. C.R. at
77.

       6
         Petitioner failed to post bail after his March 3, 2016 arrest and was consequently held in
the Montgomery County Correctional Facility pending trial on the criminal charges stemming
from that arrest. C.R. at 36.


                                                 4
imposed sentence and, thus, violated his constitutional rights. See id. at 3.7 As a
result, Petitioner sought reversal of the Board’s decisions to deny him credit for his
time at liberty on parole and to extend his maximum parole violation date to
February 20, 2023. Id.
        Counsel subsequently entered his appearance on behalf of Petitioner on
November 27, 2017, and filed his First Application to Withdraw and a no-merit letter
on February 16, 2018.8 In his Application, Counsel stated he had “conducted a full
and conscientious examination of the record certified to this Court by the . . . Board,
and ha[d] concluded that there is no factual or legal basis for Petitioner Coffield’s
appeal and that the said appeal is frivolous.” Application at 3. In the no-merit letter,
Counsel provided the following explanation for this conclusion:

                 The crux of Petitioner Coffield’s argument is that the
                 Board lacks the authority to extend the maximum date of
                 his original sentence. Petitioner avers that the Board is
        7
                 Petitioner contends that the Board lodged a detainer against
                 [P]etitioner and entered an appearance in a criminal matter that
                 subjects [P]etitioner to a “hit” that causes [P]etitioner to do an
                 extended period of time in a state correctional institution without a
                 written assignment made within the written judgment of sentence
                 order signed by the sentencing judge in which [P]etitioner is being
                 illegally detained and has suffered a significant increase in
                 punishment in vioaltion [sic] of the “ex post facto clauses” of the
                 U.S. Constitution, Article 1, § 9, Clause 3, and U.S. Constitution,
                 Article 1, § 10, Clause 1. GREGG V. GEORGIA, 428 U.S. 153
                 [(1976)]. Detention or changing/altering/extending a judicially
                 imposed sentence constitutes a violation of due process and cruel
                 and unusual punishment in violation of U.S. Constitution,
                 Amendments 5, 8, and 14. ESTELLE V. GAMBLE, 429 U.S. 97,
                 97 S.Ct. 285 (1976).
Petition at 3.

        8
         In a no-merit letter, appointed counsel seeks to withdraw from representation because
“the case lacks merit, even if it is not so anemic as to be deemed wholly frivolous.” Com. v.
Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).

                                                  5
              acting in a judicial manner, in so “changing” the original
              sentence. The greensheet indicates the Board chose not to
              credit Petitioner with any of the time spent at liberty on
              parole, which the Parole [B]oard has the authority to do.
              Section 21.1(a) “Parole Act” provides that a parolee may
              be recommitted as a convicted parole violator if the
              parolee commits any crime punishable by imprisonment,
              while on parole, from which he is convicted or found
              guilty. As evidence [sic] from the record, Petitioner
              Coffield was on parole while committing a new offense,
              [for] which he was sentenced on March 29, 2017 to a new
              term of imprisonment. ([C].R. [at] 40-41). Further, the
              [P]arole Act provides that a convicted parole violator
              “shall be given no credit for the time at liberty on parole.”
              61 P.S. [§] 331.21a. Upon recommitment as a convicted
              parole violator, the parolee must serve the remainder of the
              term which he would have been compelled to serve had he
              not been paroled with no credit given for street time.
              Stepoli v. Pennsylvania Board of Probation and Parole,
              106 Pa. Cmwlth. 197, 525 A.2d 888 (1986). When
              computing the time yet to be served on the original
              sentence, the convicted parole violator’s street time is
              added to the original maximum expiration date to create a
              new maximum expiry. Palmer v. Pennsylvania Board of
              Probation and Parole, 704 A.2d 195 (Pa. Cmwlth. 1997).
              While Section 21.1(b) of the Parole Act, 61 P.S. §
              331.21a(b), provides that a technical parole violator will
              be given credit for street time served in good standing,
              time spent in good standing prior to recommitment for
              technical violations is not shielded from forfeiture where
              the parolee subsequently commits a new crime and is
              recommitted as a convicted parole violator. Houser v.
              Pennsylvania Board of Probation and Parole, 682 A.2d
              1365 (Pa. Cmwlth. 1996), petition for allowance of appeal
              denied, 547 Pa. 759, 692 A.2d 568 (1997); Anderson v.
              Pennsylvania Board of Probation and Parole, 80 Pa.
              Cmwlth. 574, 472 A.2d 1168 (1984). Thus, as in the case
              with Petitioner Phoenix,[9] upon his recommitment as a

       9
        “Phoenix” presumably refers to Phoenix v. Pennsylvania Board of Probation and Parole
(Pa. Cmwlth., No. 1243 C.D. 2017, filed April 5, 2018). Counsel represented Phoenix and used
this exact block quote, verbatim, in the unsuccessful Application for Leave to Withdraw
Appearance he submitted in that matter on December 1, 2017. See Phoenix, slip op. at 1-6.

                                             6
               convicted parole violator, in addition to losing all time
               spent at liberty during the current parole, he also forfeited
               all credit received for time spent in good standing while
               on parole prior to his previous recommitment as a
               technical parole violator.
               Accordingly, there is no merit in either law or fact to
               [Petitioner’s] challenge to the decision of the . . . Board.

Application, Ex. B at 2-3. Counsel also sent a letter to Petitioner, informing him that
Counsel found the Petition to be without merit, explaining the reasons for this
determination, and directing Petitioner to retain another attorney or file a pro se brief
with our Court, in the event that Petitioner disagreed with Counsel’s explanation.
Application, Ex. A at 1-3.
      We denied Counsel’s Application on May 22, 2018, deeming the attached no-
merit letter to be inadequate for the following three reasons:

               First, Counsel repeatedly referenced and based the entirety
               of his legal analysis and conclusions upon the Parole
               Act,[10] despite the fact it was repealed by our General
               Assembly more than 8½ years ago through the Act of
               August 11, 2009, P.L. 147, and replaced by the Prisons and
               Parole Code (Parole Code), 61 Pa. C.S. §§ 101-6153.
               Second, there are material differences between the Parole
               Act and Parole Code. For example, as Petitioner himself
               pointed out in his pro se Petition, the Parole Code vests
               the Board with discretion, in certain situations, to award a
               convicted parole violator with credit for time spent at
               liberty on parole. See Petition at 2 (citing Pittman v. Pa.
               Bd. of Prob. & Parole, 159 A.3d 466 (Pa. 2017) and 61
               Pa. C.S. § 6138(a)(2.1)). Third, Counsel does not address
               or analyze either of the issues Petitioner raised in his pro
               se Petition in a satisfactory or legally accurate manner,
               specifically that the Board: 1. Erred by failing to credit
               Petitioner for “all time served on parole in ‘good standing’
               and . . . only giv[ing] him (2) two days credit towards his
               original sentence without conducting an individual
               assessment of the facts and circumstances surrounding his
      10
           Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. §§ 331.1–331.34a.

                                               7
             parole violation and revocation”; and 2. Violated a number
             of Petitioner's constitutional rights by improperly altering
             his judicially imposed sentence. Petition at 2-3.
Coffield v. Pa. Bd. of Prob. and Parole (Pa. Cmwlth., No. 1621 C.D. 2017, filed
May 22, 2018), slip op. at 8-9 (Coffield I) (emphasis in original). We denied the
Application without prejudice and gave Counsel 30 days to file an amended
application and revised no-merit letter, or a substantive brief in support of
Petitioner’s Petition. Commonwealth Court Order, May 22, 2018, at 1.
      Counsel chose the former option, submitting his Amended Application and
revised no-merit letter on June 25, 2018. As in his original Application, Counsel
stated that he had “conducted a full and conscientious examination of the record
certified to this Honorable Court by the . . . Board and ha[d] concluded that there is
no factual or legal basis for Petitioner Coffield’s appeal and that the said appeal is
frivolous.” Amended Application at 3.
      In his revised no-merit letter, Counsel states that the Petitioner has challenged
the Board’s action on three bases: First, “[t]he . . . Board . . . has entered into an
illegal contract with [Petitioner] concerning a judicially imposed sentence and has
unlawfully punished [Petitioner] pursuant to such illegal contract.” Amended
Application, Ex. B at 1. Second, the
             Board does not possess the lawful authority to change the
             maximum date of a judicially imposed sentence [such as
             Petitioner’s] . . . and that [the Board’s] recalculation [of
             Petitioner’s sentence] violates [Petitioner’s] rights under
             the Double Jeopardy Clauses of the United States and
             Pennsylvania Constitutions, the Due Process Clause of the
             Fourteenth Amendment to the United States Constitution,
             and the Eighth Amendment to the United States
             Constitution . . . [as well as] Equal Protection . . . [and] the
             collateral estoppel doctrine.




                                            8
Id. at 1-3.11 Finally, the Board improperly calculated Petitioner’s maximum parole
violation expiration date, since “the Board should have credited him for the entire
period he was incarcerated between March 3, 2016 [and] April 6, 2017 because the
Board had lodged its detainer against him.” Id. at 5.
       Counsel first notes that, while the Board cannot impose backtime upon a
convicted parole violator in excess of the unexpired length of the relevant sentence,
the Board does have the discretionary authority to revoke credit for whatever street
time the individual had accrued prior to violating his parole terms. Id. at 3-4. Thus,
Counsel opines that “the Board made no error in the decision to recommit Petitioner
to serve his unexpired term and to not give credit for time spent at liberty on parole.”
Id. at 4. Counsel cites case law declaring that parole revocation does not run afoul
of the double jeopardy clauses found in either the United States or Pennsylvania
Constitutions, or of the Eighth Amendment’s prohibition against cruel and unusual
punishment. Id. at 5.
       Counsel then maintains that the Board did not err by failing to credit the time
Petitioner spent in custody between March 3, 2016 and April 6, 2017 toward the
2007 sentence. Id. According to Counsel, Petitioner “was sitting on both the Board’s
detainer and bail on the new [2016] offense” during that time window, necessitating
that “credit for this [custodial] period . . . be applied to Petitioner’s second sentence
[stemming from his 2016 crimes] . . . due to bail being established and not posted on
the new offense[s] . . . [and because] Petitioner was sentenced to a state correctional
institution on the new offenses . . . [requiring him] to serve the original [2007]
sentence prior to the new [2016] sentence.” Id. at 5-6.

       11
          It is unclear why Counsel claims that Petitioner has argued the Board’s actions violate
equal protection or run afoul of the collateral estoppel doctrine, given that Petitioner has never
made such claims. See Petition at 1-3 (pro se arguments raised by Petitioner); C.R. at 44, 67, 69-
74.

                                                9
       Finally, Counsel disputes Petitioner’s claim that he signed an illegal contract
with the Board:
               By signing the “Conditions Governing Parole/Reparole,”
               Petitioner and the Board did not enter into a contract that
               authorized the Board to do something that was prohibited
               by law. Rather, that document simply placed Petitioner on
               notice of what the Board was legally authorized to do
               should he violate the terms of his parole/reparole, be
               arrested on new criminal charges, or be convicted of a new
               crime.
Id. at 6-7. Consequently, Counsel concludes that there is “no merit in Petitioner’s
illegal contract argument.” Id. at 7.
       Counsel also sent a letter to Petitioner, informing him that Counsel had found
the Petition to be without merit, explaining the reasons for this determination, and
directing Petitioner to retain another attorney or file a pro se brief with our Court, in
the event that Petitioner disagreed with Counsel’s conclusion. Amended
Application, Ex. A at 1-6.
       Before addressing the merits of Petitioner’s Petition, we must assess the
adequacy of Counsel’s Amended Application and no-merit letter.                          Because
Petitioner’s Petition only challenged the Board’s denial of credit for his time at
liberty on parole and its decision to recalculate his maximum parole violation
expiration date, Counsel appropriately elected to file a no-merit letter. See Seilhamer
v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 n.4 (Pa. Cmwlth. 2010).12 “A no-


       12
                Pursuant to Anders v. California, 386 U.S. 738 (1967), court-appointed counsel
must file what is known as an Anders brief when seeking to withdraw from representation in certain
circumstances. See Com. v. Santiago, 978 A.2d 349, 353-55 (Pa. 2009). However,
               [w]here no constitutional right to counsel is involved, an attorney
               seeking to withdraw from representation in a probation and parole
               case need only file a no-merit letter, as opposed to an Anders brief.
               Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d


                                               10
merit letter must include an explanation of ‘the nature and extent of counsel’s review
and list each issue the petitioner wished to have raised, with counsel’s explanation
of why those issues are meritless.’” Id. at 43 (quoting Com. v. Turner, 544 A.2d
927, 928 (Pa. 1988)) (brackets omitted). As long as a no-merit letter satisfies these
basic requirements, we may then review the merits of a petitioner’s request for relief.
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). However, if the letter fails
on technical grounds, we must deny counsel’s request for leave to withdraw, without
delving into the substance of the underlying petition for review, and may direct
counsel to file either an amended request for leave to withdraw or a brief on behalf
of his client. Id.
       Here, we once again conclude that Counsel’s no-merit letter is inadequate. In
contravention of our well-established case law, Counsel appears to have ignored the
substance of Petitioner’s Petition, addressing claims in his no-merit letter that
Petitioner failed to preserve for our review (such as Petitioner’s double jeopardy and
illegal contract arguments), while completely disregarding other claims that
Petitioner actually raised in his Petition (such as the Board’s failure to explain its
reasons for revoking Petitioner’s street time credit and the Board’s violation of the


              19, 26 (Pa. Cmwlth. 2009). A constitutional right to counsel arises
              when the petitioner presents a:
                     colorable claim (i) that he has not committed the alleged
                     violation of the conditions upon which he is at liberty; or (ii)
                     that, even if the violation is a matter of public record or is
                     uncontested, there are substantial reasons which justified or
                     mitigated the violation and make revocation inappropriate,
                     and that the reasons are complex or otherwise difficult to
                     develop or present.
              Id. at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790, 93
              S.Ct. 1756, 36 L.Ed.2d 656 (1973)).
Seilhamer, 996 A.2d at 43 n.4.


                                               11
ex post facto clause clauses). Compare Amended Application, Ex. B at 1-7 with
Petition at 1-3; see Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa.
Cmwlth. 2012).13 This is inexplicable, given that we clearly summarized Petitioner’s
claims and advised Counsel that he neglected to properly address them in Coffield I.
See Coffield I, slip op. at 8-9. Accordingly, we deny Counsel’s Amended Application
and direct him to file either a proper no-merit letter or an advocate’s brief within 30
days.14

                                               __________________________________
                                               ELLEN CEISLER, Judge




       13
              The law is well settled that issues not raised before the Board either
              at the revocation hearing or in the petitioner’s administrative appeal
              are waived and cannot be considered for the first time on appeal.
              The law is equally well settled that issues not raised in a petition for
              review are waived and will not be addressed by this Court.
Chesson, 47 A.3d at 878 (internal citations omitted).

       14
           We strongly encourage Counsel to consider and address whether Petitioner, through
either of his administrative remedies forms or his letter to Attorney Robinson, preserved for our
review his claim that the Board erred by failing to articulate a justification for revoking his street
time credit.

                                                 12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nelson Coffield,                       :
                   Petitioner          :
                                       :
      v.                               : No. 1621 C.D. 2017
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                  Respondent           :



                                    ORDER

      AND NOW, this 9th day of August, 2018, the Amended Application for Leave
to Withdraw Appearance filed by Counsel, Nicholas E. Newfield, Esquire, is hereby
DENIED. Counsel shall file either a proper no-merit letter or an advocate’s brief
within 30 days from the date of this order.
      Jurisdiction retained.

                                       ________________________________
                                       ELLEN CEISLER, Judge
