            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Norman Shelton,                            :
                     Petitioner            :
                                           :
       v.                                  : No. 1199 C.D. 2018
                                           : SUBMITTED: May 10, 2019
Pennsylvania Board of                      :
Probation and Parole,                      :
                  Respondent               :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                 FILED: July 23, 2019

       Norman Shelton (Shelton), an inmate at a state correctional institution (SCI),
petitions for review of an order of the Pennsylvania Board of Probation and Parole
(Board) that affirmed dismissal of his administrative appeal. Shelton contends the
Board failed to hold a timely revocation hearing concerning his recommitment as a
convicted parole violator (CPV).
       Also before us is the petition of David Crowley, Esquire, Chief Public
Defender of Centre County (Counsel), to withdraw as counsel for Shelton1 on the
ground that the petition for review is frivolous.
       After thorough review, we grant Counsel’s petition to withdraw, and we
affirm the Board’s order.

       1
        Shelton’s right to counsel arose under Section 6(a)(10) of the Public Defender Act, Act
of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).
                                  I. Background
      In June 1982, Shelton was sentenced to serve 7½ to 30 years in state prison
for robbery and criminal conspiracy convictions. He was released on parole in April
1992. At that time, his maximum sentence date was June 21, 2012.
      In September 1992, Shelton was rearrested on federal charges of armed bank
robbery and several other related offenses. The Board issued a warrant to commit
and detain Shelton the next day. He never posted bond, and he remained in federal
custody thereafter.
      In January 1993, while Shelton was still in federal custody, the Board issued
a decision detaining him for parole violations, pending disposition of the federal
criminal charges. In July 1993, Shelton was convicted on the federal charges and
sentenced to 322 months in federal prison plus 5 years of supervision.
      In April 1995, the Board issued a new warrant for detainer at the federal
penitentiary. In June 1995, Shelton requested that the Board schedule his revocation
hearing. The Board refused to do so, stating it was deferring a decision on parole
revocation matters until Shelton finished serving his federal sentence.
      In December 1999, Shelton complained to the Board that he was suffering
adverse effects in federal prison by reason of the Board’s detainer. He again asked
the Board for a revocation hearing concerning his parole violations. The Board
responded that he was required to serve his new federal sentence before serving any
backtime owed on his state court sentence.
      In January 2015, Shelton once again requested disposition of his parole
violations by the Board. The Board responded that those violations would be
addressed once he was returned to state custody.
      The Board acquired custody of Shelton and returned him to an SCI on April
14, 2017, upon his completion of his federal sentence. A revocation hearing was


                                         2
held July 24, 2017. In a decision issued in October 2017, the Board revoked
Shelton’s parole and also recommitted him to serve 24 months of backtime as a CPV.
As a result, his maximum sentence date changed from June 21, 2012 to June 21,
2037.
        Shelton timely appealed. The Board affirmed its decision. Shelton then filed
a petition for review in this Court.
        After being appointed to represent Shelton in his petition for review, Counsel
filed a petition to withdraw, supported by a brief pursuant to Anders v. State of
California, 386 U.S. 738 (1967). This Court issued an order directing disposition of
the petition to withdraw along with the merits of the petition for review.
                                         II. Issues
        The sole issue raised by Shelton on review by this Court2 is his contention that
the Board failed to hold a revocation hearing within 120 days of Shelton’s July 1993
federal convictions, as he asserts was required by 37 Pa. Code § 71.4(a).3 Citing
Taylor v. Pennsylvania Board of Probation and Parole, 931 A.2d 114 (Pa. Cmwlth.
2007), Shelton asserts that as a consequence, the Board’s revocation order and parole
violation charges must be dismissed with prejudice.
        In his petition to withdraw, Counsel analyzed Shelton’s argument and
concluded there was no basis upon which Counsel could reasonably make an
argument in support of granting Shelton’s requested relief.

        2
         “Our review of the Board’s decision is limited to determining whether constitutional
rights were violated, whether the decision is in accordance with the law, or whether necessary
findings are supported by substantial evidence.” Kerak v. Pa. Bd. of Prob. & Parole, 153 A.3d
1134, 1137 n.9 (Pa. Cmwlth. 2016).

        3
          The Pennsylvania Code contains no such section; presumably Shelton refers to 37 Pa.
Code § 71.4(1), which requires a revocation hearing within 120 days after the Board receives
official verification of a guilty verdict, subject to enumerated exceptions.


                                              3
                                    III. Discussion
                              A. Petition to Withdraw
      An indigent inmate’s right to assistance of counsel does not entitle him to
representation by appointed counsel to prosecute a frivolous appeal. Presley v. Pa.
Bd. of Prob. & Parole, 737 A.2d 858 (Pa. Cmwlth. 1999). Therefore, court-
appointed counsel may seek to withdraw if, after a thorough review of the record,
counsel concludes the appeal is wholly frivolous. Id. An appeal is wholly frivolous
when it completely lacks factual or legal reasons that might arguably support the
appeal. Id.
      Here, Counsel has filed a petition to withdraw and a supporting Anders brief
explaining why Shelton’s appeal is without any arguable merit. Before granting
such a petition to withdraw, this Court must first determine that counsel has notified
the inmate of the petition, provided the inmate with a copy of the supporting Anders
brief, and advised the inmate of his right to retain new counsel or file a brief himself.
Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013). If counsel
has complied with these requirements, this Court will review the merits of the
inmate’s claims independently, and if we agree that the petition for review is
meritless, counsel will be permitted to withdraw. Adams v. Pa. Bd. of Prob. &
Parole, 885 A.2d 1121 (Pa. Cmwlth. 2005).
                   1. Procedural Requirements for Withdrawal
      The record indicates Counsel served Shelton with a copy of the petition to
withdraw and a copy of the Anders brief and advised Shelton to provide this Court
with any additional reasons in support of his petition for review. This Court issued
an order directing Shelton to obtain substitute counsel at his own expense or file a




                                           4
brief in support of his petition for review.4 Counsel promptly served Shelton with a
copy of that order. We therefore find the procedural requirements for withdrawal
have been satisfied. See Dill v. Pa. Bd. of Prob. & Parole, 186 A.3d 1040 (Pa.
Cmwlth. 2018).
                                2. Sufficiency of Anders Brief
      Our review of Counsel’s Anders brief reveals that it adequately details
Counsel’s review of the record and the issue raised by Shelton. Further, it adequately
explains the reasons for Counsel’s conclusion that the petition for review lacks any
arguable basis. Thus, Counsel’s Anders brief is sufficient to allow review by this
Court. Accordingly, we will independently review the merits of Shelton’s petition
for review.
                   B. Timeliness of the Board’s Revocation Hearing
      When a parolee challenges the timeliness of a revocation hearing, the Board
has the burden to prove by a preponderance of the evidence that it held a timely
hearing. Brown v. Pa. Bd. of Prob. & Parole, 184 A.3d 1021 (Pa. Cmwlth. 2017).
A revocation hearing is timely if, not counting periods of time not chargeable to the
Board, the hearing is held within 120 days after the preliminary parole hearing, the
official verification of the new conviction, or the offender’s return to an SCI.
Koehler v. Pa. Bd. of Prob. & Parole, 935 A.2d 44 (Pa. Cmwlth. 2007); see 37 Pa.
Code § 71.4(1). Periods not chargeable to the Board include those when an offender
is detained in a federal prison. Koehler; see 37 Pa. Code § 71.5(a), (c)(1), (e).
      Here, Shelton was in federal prison until he was returned to Board custody on
April 14, 2017. The 120-day time period for the revocation hearing therefore expired




      4
          Shelton filed as his brief a copy of his petition for review.


                                                   5
on August 12, 2017. The Board held Shelton’s revocation hearing on July 24, 2017.
Accordingly, the hearing was facially timely. See Dill.
       However, Shelton argues that under Section 6138(a)(5.1) of the Prisons and
Parole Code,5 61 Pa. C.S. § 6138(a)(5.1), he should have served the remainder of his
state court sentence, including any backtime, before serving the federal sentence.
Therefore, he contends the Board was required to hold a revocation hearing within
120 days of his 1993 conviction in federal court. We discern no arguable merit in
this argument.
       Shelton was convicted on the federal charges in 1993. At that time, applicable
law, commonly known as the Parole Act, required service of new federal sentences
before service of the remainder of a prior state sentence, including backtime. See
Section 21.1 of the former Parole Act, former 61 P.S. § 331.21a(a)6; Dill.
       Section 6138(a)(5.1), on which Shelton relies, was not added to the Prisons
and Parole Code until October 2010.7 It is not applicable to sentences imposed
before that time. Dill. Accordingly, we find no arguable merit in Shelton’s
contention that he should have served the remainder of his state sentence before
serving his federal sentence.
       Moreover, 37 Pa. Code § 71.4(1)(i) provides that where a parolee is confined
in a federal prison, the revocation hearing is to be held within 120 days of official
verification of the parolee’s return to state custody. This Court has specifically


       5
           61 Pa. C.S. §§ 101-6309.

       6
         Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, P.L.
1401, formerly 61 P.S. § 331.21a(a). The Parole Act was superseded in 2009 by the Prisons and
Parole Code, Act of August 11, 2009, P.L. 147, 61 Pa. C.S. §§ 101-6309.

       7
           See Act of October 27, 2010, P.L. 931.


                                                    6
found that regulation applicable notwithstanding the 2010 enactment of Section
6138(a)(5.1). See, e.g., Dill; Brown.
      Notably, in Brown, we expressly distinguished Fumea v. Pennsylvania Board
of Probation and Parole, 147 A.3d 610 (Pa. Cmwlth. 2016), on which Shelton relies.
In Fumea, a parolee was arrested by federal authorities, but was free on bond until
his sentencing after being convicted on the federal charges. In addition, a Board
agent was present at the sentencing. Despite the parolee’s availability, the Board
never took custody of him. In that specific circumstance, a revocation hearing held
after completion of the federal sentence was untimely.
      Here, as in Brown, the parolee never made bond, so he remained in federal
custody at all times after his arrest. In this circumstance, the Board had no means of
gaining custody in order to hold a revocation hearing until after completion of the
federal sentence. Brown; see also Dill.
      Accordingly, consistent with this Court’s holdings in Brown and Dill, as long
as Shelton was in federal custody, the Board’s duty to hold a revocation hearing was
deferred until he was returned to state custody. For this reason as well as the
inapplicability of Section 6138(a)(5.1), Shelton’s argument lacks any possible merit.
                                  IV. Conclusion
      Based on our independent review, we agree with Counsel that Shelton’s
petition for review lacks any arguable merit. Therefore, we grant the petition to
withdraw, and we affirm the Board’s revocation and recommitment order.




                                        __________________________________
                                        ELLEN CEISLER, Judge




                                          7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Norman Shelton,                    :
                  Petitioner       :
                                   :
     v.                            : No. 1199 C.D. 2018
                                   :
Pennsylvania Board of              :
Probation and Parole,              :
                  Respondent       :


                                ORDER


     AND NOW, this 23rd day of July, 2019, the petition of David Crowley,
Esquire to withdraw as counsel is GRANTED, and the order of the Pennsylvania
Board of Probation and Parole is AFFIRMED.




                                   __________________________________
                                   ELLEN CEISLER, Judge
