             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Strait,                         :
                     Petitioner         :
                                        :
             v.                         :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :   No. 580 C.D. 2015
                 Respondent             :   Submitted: September 25, 2015

BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                           FILED: October 27, 2015
             Before this Court is Tina M. Fryling’s (Attorney Fryling) petition for
leave to withdraw as counsel for Michael Strait (Strait) on Strait’s petition for
review of the order of the Pennsylvania Board of Probation and Parole (Board)
which established Strait’s maximum date as January 23, 2020.


             On March 19, 1999, Strait was effectively sentenced to a term of nine
months to five years for forgery. He was consecutively sentenced to a term of nine
months to two years for theft. He was also consecutively sentenced to a term of
nine months to two years for issuing bad checks and was consecutively sentenced
to a term of two days to two years for driving under the influence. His total term
for these sentences was twenty-seven months and two days to eleven years. On
June 15, 1999, Strait was concurrently sentenced to a term of nine months to five
years for forgery.
            On June 25, 2001, the Board paroled Strait to a community
corrections center. In a decision recorded June 21, 2002, the Board declared Strait
delinquent effective June 19, 2002. In a decision recorded on February 27, 2003,
and mailed February 28, 2003, the Board detained Strait pending the disposition of
criminal charges and recommitted him to serve twelve months backtime when
available as a technical parole violator for leaving the district without permission
and changing his residence without permission. In a decision recorded on October
16, 2003, and mailed October 22, 2003, the Board recommitted Strait to serve
eighteen months backtime when available as a convicted parole violator for the
offenses of forgery; conspiracy to make, utter, and possess counterfeited security;
and making, receiving, possessing, or transferring an implement designed for
making a counterfeit or forged security, concurrent with the previous
recommitment as a technical parole violator. The Board recommitted Strait after
he became available in a decision recorded September 21, 2006, and mailed
October 19, 2006.


            While on pre-release, Strait escaped. He was convicted of escape
from detention and effectively sentenced on March 31, 2008, to a term of one year
six months to four years.     On October 27, 2009, the Board adjusted Strait’s
maximum date to June 20, 2015, based on his escape time calculation.


            The Board released Strait on parole on December 21, 2009, to a
community corrections center.     On March 4, 2010, the Board declared Strait
delinquent effective March 3, 2010. On March 31, 2010, the Board issued a
warrant to commit and detain Strait. On August 10, 2010, the Board declared



                                         2
Strait delinquent effective August 6, 2010. In a decision recorded August 23,
2010, and mailed September 8, 2010, the Board recommitted Strait to serve nine
months backtime, when available pending his return to a state correctional
institution, as a technical parole violator for changing his residence without
permission, failing to report, and violating curfew.


             Strait was arrested on October 1, 2010, in the state of Kentucky and
charged with wanton endangerment, criminal mischief, fleeing or evading police –
first degree, fleeing or evading police – second degree, reckless driving, speeding,
disregarding a traffic control device, failure to or improper signal, and leaving the
scene of an accident. He was convicted on March 9, 2011, and sentenced to a term
of eight years on April 25, 2011. He received 207 days credit for time served.


             In a decision recorded on February 6, 2015, and mailed February 18,
2015, the Board recommitted Strait to serve the nine months backtime as a
technical parole violator ordered on August 23, 2010, and established his new
maximum violation date as January 23, 2020.


             Strait petitioned for “Administrative Appeal/Administrative Review.”
He alleged that he waived extradition from Kentucky to Pennsylvania on October
5, 2010, so that he was available to the Board at that time. As a result, he argued
that his nine months backtime should have started on that date. He also alleged:

             On 9/2/2011 the board lodged a new detainer against me
             saying that I absconded from parole supervision on
             8/6/2010. Also attached to the detainer was a pre-signed
             waiver of extradition from 12/18/2009. I wrote to the
             parole office, and Mr. Victor Boers telling them that my


                                          3
            parole had been revoked and I could not have absconded
            from parole supervision on 8/6/2010, they insisted that I
            was a parole absconder. On 12/1/2014 I was extradited
            back to Pennsylvania on a pre-signed waiver of
            extradition dated 12/18/2009 that pre-signed waiver
            should have become null and void when my parole was
            revoked on 3/31/2010. I was in custody, and released in
            error. I should have been taken to the courts in Kentucky
            for extradition like I was in October 2010, when
            Pennsylvania did not come and get me. . . . I was denied
            due process in the matter when the board filed a detainer
            with the Kentucky D.O.C. [Department of Corrections]
            saying that I absconded, and sent them a pre-signed
            waiver of extradition, that should have been null and
            void. On my most recent board action, the board said I
            was released in error. . . . (citations omitted.)
Administrative Appeal/Administrative Review, March 13, 2015, (Review) at 1-2.1


            Strait also asserted that he asked for a full panel revocation hearing
but did not receive one. He further argued that the Board extended his maximum
date based on a conviction for which his parole was not revoked:

            The board is extending my maximum for a conviction
            that I was not revocated [sic] on. I was only recommitted
            as a technical violater [sic], as a technical violator my
            maximum can only be extended for delinquent time. . . .
            I was not delinquent, I was released in error. When I was
            taken into custody by federal authorities on 3/31/2010 the
            board stopped my delinquent time and gave me a new
            maximum date of 7/18/2015.
Review at 2-3.


            In a decision dated March 26, 2015, the Board denied Strait’s appeal:


      1
            The Certified Record does not contain page numbers.



                                           4
             When you were released on parole on March 3, 2010,
             your maximum sentence date was June 20, 2015.
             Therefore, you owed 1,935 days of back time owed at the
             time of your last release. In your case, you received 56
             days credit for the period in which you were released in
             error from August 6, 2010 to October 1, 2010. Applying
             56 days to 1,935 days yields a total of 1, 879 days owed.
             You became available to begin serving your back time on
             December 1, 2014 when you returned to an SCI [State
             Correctional Institution] and Pennsylvania authorities.
             Adding 1,879 days to December 1, 2014 yields a parole
             max date of January 23, 2020. Therefore, your parole
             violation max date is correct.
Board Decision, March 26, 2015, at 1.


             Attorney Fryling was assigned to represent Strait. After review of
Strait’s petition for review and the certified record, Attorney Fryling seeks to
withdraw and asserts that Strait’s petition for review lacks merit.


             Appointed counsel may withdraw from assisting an indigent parolee
in appealing a parole revocation order, “[w]hen, in the exercise of his professional
opinion, counsel determines that the issues raised . . . are meritless, and when the . .
. court concurs. . . .” Commonwealth v. Turner, 544 A.2d 927, 928-929 (Pa.
1988).


             In reviewing a motion to withdraw, this Court must make an
independent evaluation of proceedings before the Board to determine whether a
parolee’s appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole,
686 A.2d 423 (Pa. Cmwlth. 1996).           When this Court agrees with counsel’s
assertion that the appeal is without merit, this Court will permit counsel to
withdraw when counsel has fulfilled the technical requirements set forth in Craig v.

                                           5
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) furnish the parolee with a copy of the brief, and (3) advise the
parolee of his right to retain new counsel to raise any new points that he might
deem worthy of consideration. In the no merit letter or brief counsel must indicate
the nature and extent of the review, the issues the parolee wishes to raise, and
counsel’s analysis in concluding that the appeal is without merit.          Wesley v.
Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992).


             Strait petitioned for review and alleged, “5. Mr. Strait argues that
Respondent [Board] erred as a matter of law by taking from Mr. Strait 1678 days
of back time when he only was delinquent for 28 days. Thus, the Petitioner’s
[Strait] maximum date should be adjusted.” Petition for Review, April 17, 2015,
Paragraph No. 5 at 1.


             With respect to whether the Board erred when it added 1,678 days of
backtime to Strait’s maximum date, Attorney Fryling asserts that under Section
21.1(a) of the Parole Act the Board has the authority to recommit a parolee who
has been convicted of a crime as a convicted parole violator and that parolee shall
be reentered to serve the term remaining at the time of his parole and is not entitled
to any credit for the time spent at liberty on parole.


             Attorney Fryling further asserts:

             Accordingly, Mr. Strait forfeited credit for all of the time
             he spent on parole. He was convicted of the new charge
             and thus his revocation was appropriate. The Board’s


                                           6
              parole violation maximum sentence date was calculated
              correctly. The Board correctly added days to Mr. Strait’s
              sentence for which he was at liberty onto his maximum
              sentence in accordance with Houser v. Pennsylvania
              Board of Probation and Parole, 886 A.2d 1183, 1187-
              1191 (Pa. Commw. Ct. [sic] 2005).
Letter from Attorney Tina M. Fryling, July 13, 2015, at 3.


              Initially, this Court notes that Attorney Fryling did not cite the
pertinent statute. Attorney Fryling cites to Section 21.1(a) of the law known as the
Parole Act,2 formerly 61 P.S. §331.21a(a). The Parole Act was repealed by the Act
of August 11, 2009, P.L. 147. It was replaced by the Prisons and Parole Code
(Code), 61 Pa.C.S. §§101-6309.


              Section 6138 of the Code, 61 Pa.C.S. §6138, contains a similar
provision to the one cited by Attorney Fryling. Section 6138 of the Code provides:

              (a) Convicted violators.—

              (1) A parolee under the jurisdiction of the board released
              from a correctional facility who, during the period of
              parole or while delinquent on parole, commits a crime
              punishable by imprisonment, for which the parolee is
              convicted or found guilty by a judge or jury or to which
              the parolee pleads guilty or nolo contendere at any time
              thereafter in a court of record may, at the discretion of
              the board be recommitted as a parole violator.

              (2) If the parolee’s recommitment is so ordered, the
              parolee shall be reentered to serve the remainder of the
              term which the parolee would have been compelled to


       2
               Act of August 6, 1941, P.L. 861, as amended. This section was added by the Act
of August 24, 1951, P.L. 1401.



                                             7
             serve, and, except as provided under paragraph (2.1),
             shall be given no credit for the time at liberty on parole.

             (2.1) The board may, in its discretion award credit to a
             parolee recommitted under paragraph (2) for the time
             spent at liberty on parole, unless any of the following
             apply:

             (i) The crime committed during the period of parole or
             while delinquent on parole is a crime of violence as
             defined in 42 Pa.C.S. § 9714(g) (relating to sentences for
             second and subsequent offenses) or a crime requiring
             registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to
             registration of sexual offenders)

             (ii) The parolee was recommitted under section 6143
             (relating to early parole of inmates subject to Federal
             removal order.


             In Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d
596, 599 (Pa. Cmwlth.), petition for allowance of appeal denied, 29 A.3d 374 (Pa.
2011), this Court explained the ramifications of Section 6138(a) of the Code, 61
Pa.C.S. §6138(a), when it stated, “[c]onsequently when a parolee is recommitted
due to criminal conviction, his maximum sentence date may be extended to
account for all street-time, regardless of good or delinquent standing.”


             Attorney Fryling is correct that a convicted parole violator shall be
given no credit for the time at liberty on parole subject to the Board’s discretion in
Section 6138(a)(2.1). However, Strait argues that he was not recommitted as a
convicted parole violator but as a technical parole violator. A review of the record
reveals that Strait is correct. Although Strait was convicted of various offenses in
Kentucky in 2011, he was not recommitted by the Board as a convicted parole
violator. While his parole was revoked as a technical parole violator, Section

                                          8
6138(c)(2) of the Code, 61 Pa.C.S. §6138(c)(2)3, does not contain the same
language regarding a technical parole violator losing credit for time at liberty on
parole when recommitted that Section 6138(a) does for a convicted parole violator.


              As a result, this Court will deny Attorney Fryling’s petition for leave
to withdraw as counsel. The petition for leave to withdraw as counsel is denied
and counsel is directed to file a brief on the merits within thirty days. 4



                                            ____________________________
                                            BERNARD L. McGINLEY, Judge




       3
                Section 6138(c)(2) of the Code, 61 Pa.C.S. §6138(c)(2), provides: “If the parolee
is recommitted [as a technical parole violator] under this subsection, the parolee shall be given
credit for the time served on parole in good standing but with no credit for delinquent time and
may be reentered to serve the remainder of the original sentence or sentences.”
        4
                It is clear that Attorney Fryling complied with the notification requirements to
Strait. Craig.



                                               9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Strait,                            :
                    Petitioner             :
                                           :
             v.                            :
                                           :
Pennsylvania Board of Probation            :
and Parole,                                :   No. 580 C.D. 2015
                 Respondent                :

                                      ORDER

             AND NOW, this 27th day of October, 2015, the petition for leave to
withdraw as counsel is denied. Attorney Tina M. Fryling is directed to file a brief
on the merits within thirty days of the date of this order.




                                           ____________________________
                                           BERNARD L. McGINLEY, Judge
