           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antonio Byrd,                         :
                   Petitioner         :
                                      :
      v.                              : No. 347 C.D. 2018
                                      : SUBMITTED: October 5, 2018
Pennsylvania Board of                 :
Probation and Parole,                 :
                  Respondent          :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                          FILED: November 9, 2018

      Antonio Byrd (Petitioner) petitions for review of the Pennsylvania Board of
Probation and Parole’s (Board) February 20, 2018 ruling affirming its August 9, 2017
decision, in which the Board imposed 18 months of backtime upon Petitioner and set
his maximum parole violation expiration date as July 5, 2019. In response to this
Petition for Review, Petitioner’s appointed counsel, James L. Best, Esquire (Counsel),
has submitted a Motion for Leave to Withdraw as Counsel (Motion to Withdraw),
seeking our permission to withdraw from representing Petitioner in this matter, due to
Counsel’s conclusion that the arguments raised in the Petition for Review are frivolous
and without merit. After thorough consideration, we grant Counsel’s Motion to
Withdraw and, in addition, affirm the Board’s February 20, 2018 ruling.
      The relevant facts are as follows: On January 5, 2010, Petitioner pled guilty in
the Court of Common Pleas of Dauphin County to Possession with Intent to Deliver
and Criminal Conspiracy, for which he was sentenced to an aggregate prison term of 1
year, 3 months, and 22 days to 3½ years. Certified Record (C.R.) at 14. Petitioner was
subsequently paroled on May 1, 2011, at which point his maximum date was July 7,
2013. Id. at 17-21.
      On August 9, 2012, Petitioner was arrested on federal drug-related charges,
pursuant to an indictment in the United States District Court for the Middle District of
Pennsylvania (Middle District). Id. at 26. In response, the Board issued a detainer that
same day. However, as Petitioner was in federal custody, the Board was unable to
execute the detainer and instead refrained from taking further action regarding
Petitioner’s parole violation (i.e. his arrest), pending resolution of the federal charges.
Id. at 22-35. Petitioner pled guilty in the Middle District on December 19, 2014 to
Possession with Intent to Distribute Crack Cocaine and Criminal Conspiracy, for which
he received an aggregate sentence of 5 years, 5 months in federal prison, followed by
three years of probation. Id. at 36-38.
      Petitioner was released from federal prison on April 28, 2017, at which point he
was transferred to the Board’s custody. Id. at 49. Petitioner admitted to the Board that
he had pled guilty to the federal charges and then waived his right to counsel and a
parole revocation hearing. Id. at 67-72. Thereafter, in a decision mailed on August 9,
2017, the Board ordered Petitioner to be recommitted as a convicted parole violator
(CPV) and to serve 18 months’ backtime. The Board set July 5, 2019 as the new
maximum date for his 2010 sentence. Id. at 74-75. On August 24, 2017, Petitioner
mailed an Administrative Remedies Form to the Board claiming that his parole
revocation hearing had not been held in a timely fashion and that the Board had violated
Section 6138(a)(5.1) of the Prisons and Parole Code (Parole Code)1 by not taking him
into custody prior to his guilty plea in the Middle District so that he could serve his



      1
          61 Pa. C.S. § 6138(a)(5.1).



                                            2
state backtime before completing his federal sentence. Id. at 84-86.2 Petitioner argued
that his maximum date should have remained July 7, 2013, and, thus, he was entitled
to immediate release from state custody. Id. at 85.
       The Board responded on February 20, 2018, in which it affirmed its August 9,
2017 decision. Id. at 87-88. Therein, the Board provided several reasons for its denial
of Petitioner’s administrative request for relief. First, since Petitioner affirmatively
waived his right to a revocation hearing, he was precluded from claiming that a hearing
was not held in a timely fashion. Id. at 87. Second, though 61 Pa. C.S. § 6138(a)(5.1)
does require a state sentence to be served before a subsequently imposed federal
sentence, that mandate is contingent upon the Board’s ability to place an affected
individual into state custody. Id. Since Petitioner was in federal custody for his arrest
on the federal drug charges from the date of his 2012 arrest through April 28, 2017, he
was unavailable to serve his state backtime until he was released from federal prison
on April 28, 2017. Id. Finally, the Board stated that Petitioner was not entitled to any
credit for time served “towards [his] original [2010 state] sentence for the period [he
was] confined from August 9, 2012 to April 28, 2017 because [he was] held on both



       2
           Section 6138(a) of the Parole Code states, in relevant part:
               (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.
               ...
               (5.1) If the parolee is sentenced to serve a new term of total
               confinement by a Federal court or by a court of another jurisdiction
               because of a verdict or plea under paragraph (1), the parolee shall
               serve the balance of the original term before serving the new term.
61 Pa. C.S. § 6138(a)(1), (5.1).

                                                    3
the new [federal] criminal charges and the [B]oard[’s] detainer during that period.” Id.
at 88.
         On March 20, 2018, Petitioner filed his Petition for Review with our Court.
Therein, he challenged the Board’s February 20, 2018 ruling, reasserting his claims
that the Board violated 61 Pa. C.S. § 6138(a)(5.1) by failing to allow him to serve his
state backtime prior to his federal sentence and that his parole revocation hearing was
untimely. Petition for Review at 1-5. Petitioner averred that he had been “held in
Adams County Prison on both the Board[’]s warrant to commit and detain and the
federal warrant/indictment until January 21, 2015, approximately 37 days after
Petitioner was sentenced and some 6 months after he pled guilty to the new federal
charges[,]” implying that the Board could have asserted custody over him at any point
up until that date. Id. at 3. Furthermore, he maintained that 61 Pa. C.S. § 6138(a)(5.1)
“does [not] state that the [order in which carceral sentences are to be served] is
conditional upon federal authorities returning parolee to state custody or that a parolee
has to post bail from the new federal charges in order for the Board to comply with
Section 6138(a)(5.1).” Id. at 3-4. In addition, Petitioner claimed, for the first time, that
the Board had unconstitutionally enlarged his judicially imposed state-level sentence
by pushing back his maximum date. Id. at 6-7.
         Counsel was subsequently appointed to represent Petitioner and, on July 5, 2018,
submitted his Motion to Withdraw along with a no-merit letter. In his Motion to
Withdraw, Counsel stated he had “carefully considered this matter and can find no
basis to challenge the [Board’s] decision[,] meaning that the Petition for Review is
“frivolous and . . . [without a] basis in law or fact[.]” Motion to Withdraw at 1. Counsel
opined in his no-merit letter that the Board had not violated 61 Pa. C.S. § 6138(a)(5.1),
since



                                             4
             [Petitioner] never [made bail] on the federal case and was
             never in the custody of the Board [until April 28, 2017]. .
             . . This statute does not authorize or require the
             Commonwealth to get state inmates from federal custody
             and, in fact, the supremacy clause of the United States
             Constitution precludes the Commonwealth from telling
             the federal authorities who gets priority [regarding]
             sentence [completion]. The plain language of th[is] statute
             created no right for [Petitioner’s] state sentence to “time
             out” because the [Board] did not remove him from federal
             custody.
Id., Ex. A at 3-4. In addition, Counsel asserted that the Board did not violate Petitioner’s
right to a timely parole revocation hearing, because “the 120 day window in which [the
Board must] conduct a revocation hearing for a parolee who served a federal sentence
begins when the Federal Government releases the prisoner to a state correctional
facility.” Id., Ex. A at 5. Finally, Counsel noted the long line of cases affirming the
Board’s authority to impose backtime in response to parole violations and making clear
that such an action does not constitute an unconstitutional sentence extension. Id., Ex.
A at 6-7. Counsel also advised Petitioner, in writing, that he believed Petitioner’s
arguments to be without merit and directed Petitioner to retain another attorney, or file
a pro se brief with our Court, in the event Petitioner disagreed with Counsel’s
conclusion. Id., Ex. B at 1-2.
      Before addressing the validity of Petitioner’s substantive arguments, we must
assess the adequacy of Counsel’s Motion to Withdraw and no-merit letter. Since
Petitioner, throughout this process, has only sought to challenge the Board’s calculation
of his maximum date and its handling of various procedural issues, Counsel
appropriately elected to file a no-merit letter. See Seilhamer v. Pa. Bd. of Prob. &




                                             5
Parole, 996 A.2d 40, 43 n.4 (Pa. Cmwlth. 2010).3 “A no-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 validity of a petitioner’s request for relief. Zerby v. Shanon, 964 A.2d 956,
960 (Pa. Cmwlth. 2009). However, in the event the letter fails on technical grounds,
we must deny an appointed counsel’s request for leave to withdraw, without delving
into the substance of the underlying petition for review, and may direct appointed
counsel to file either an amended request for leave to withdraw or a brief on behalf of
their client. Id.
       We find that Counsel’s no-merit letter satisfies these technical requirements.
This letter contains a recitation of the relevant factual and procedural history pertaining

       3
         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 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.


                                                 6
to Petitioner’s state and federal criminal arrests and sentences, discussions of each
argument raised by Petitioner in his Petition for Review, and a thorough explanation,
backed by case and statutory law, regarding Counsel’s conclusion that none of these
arguments afford Petitioner a valid basis for relief. Furthermore, as shown by the
personal letter sent by Counsel to Petitioner on July 5, 2018, Counsel has provided
Petitioner with copies of the Motion to Withdraw and no-merit letter, informing
Petitioner about Counsel’s intentions and advising Petitioner of his right to retain
another attorney or to represent himself pro se in this matter.4 See Motion to Withdraw,
Ex. B at 1-2.
       Consequently, we will proceed to an independent review of the Petition for
Review, in order to determine whether any of Petitioner’s claims are meritorious.5
First, we find that the Board did not violate 61 Pa. C.S. § 6138(a)(5.1). Petitioner’s
argument on this point is similar to that which we addressed in Brown v. Pennsylvania
Board of Probation & Parole, 184 A.3d 1021 (Pa. Cmwlth. 2017). In that matter,
Brown was on state parole when he was arrested on federal drug charges. Id. at 1022-
23. He did not make bail and remained in federal custody from the moment of his arrest
through his completion of the resultant sentence, at which point he was turned over to
the Commonwealth of Pennsylvania, Department of Corrections. Id. at 1023. The
Board issued a detainer after learning of Brown’s conviction and subsequently held a
revocation hearing after Brown was placed in the Commonwealth’s custody where the
Board decided to recommit Brown as a CPV, in order for him to serve backtime, and
extend Brown’s maximum date. Id. at 1022-23. After an unsuccessful administrative


       4
           Petitioner has neither obtained new counsel nor filed a brief on his own behalf.

       5
         Our standard of review in this matter is limited to determining whether the Board violated
Petitioner’s constitutional rights, committed an error of law, or made findings of fact that were not
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

                                                    7
appeal, Brown petitioned for our review, arguing that the Board’s failure to ensure that
he served his state sentence prior to his federal sentence contravened 61 Pa. C.S. §
6138(a)(5.1), as well as the Board’s own administrative regulations, and rendered his
revocation hearing untimely, meaning that the parole violation charges resulting from
his federal arrest should be dismissed. Id. at 1024. We disagreed, stating
             Brown does not dispute that he was in federal custody both
             before and after his federal sentencing and when the Board
             received official verification of his conviction. His
             argument presumes that the Board had the ability to
             obtain him from federal custody in order to hold a
             revocation hearing and recommit him as a CPV to serve
             the remainder of his original sentence in accordance with
             Section 6138(a)(5.1). However, the Board asserts that it
             does not have the ability to acquire a Pennsylvania parolee
             from the custody of another jurisdiction in order to
             recommit the parolee to serve the remainder of the original
             sentence. Brown has not provided any legal authority that
             grants the Board this authority. Thus . . . Brown was
             already unavailable to the Board when he pled guilty
             and was sentenced, as well as when it received official
             verification of his conviction. The Board could not have
             acquired Brown until after his release from federal
             custody[.]
Id. at 1027 (emphasis in original).
      Here, Petitioner admits that he was incarcerated due to the federal drug charges
from his arrest on August 9, 2012 through completion of the consequent sentence on
April 28, 2017. See Petition for Review at 2-5; C.R. at 67-72. Thus, as with Brown, the
Board had neither the ability nor the power to assert control over Petitioner until after
he was released by federal authorities. See Santosusso v. Pa. Bd. of Prob. & Parole,
(Pa. Cmwlth. No. 574 C.D. 2017, filed Jan. 30, 2018), slip op. at 6 (“[W]e are unaware
of any authority supporting [Petitioner’s] implicit supposition that the Board has the
power to pluck a Pennsylvania parolee from . . . federal [custody] for the purpose of



                                           8
recommitting him as a parole violator.”).6 Simply put, 61 Pa. C.S. § 6138(a)(5.1)
neither imposes upon the Board the burden of liberating individuals from federal
custody, nor does it create a loophole through which someone may escape sanction
from the Board merely by virtue of their inability to make, or their ineligibility for,
federal bail.
       As for Petitioner’s remaining arguments, regarding an untimely revocation
hearing and the Board’s allegedly unconstitutional recalculation of his maximum date,
we need not reach the merits of either one due to waiver. Petitioner waived the former
by signing away his right to a revocation hearing,7 a decision which “necessarily
encompasse[d] the right to advance claims of error he could have raised at the hearing
. . . [including] his right to later allege that the Board failed to timely schedule a
revocation hearing.” Fisher v. Pennsylvania Bd. of Prob. & Parole, 62 A.3d 1073,
1075-76 (Pa. Cmwlth. 2013). In addition, he waived the latter by failing to raise that
issue at the administrative level before the Board. See Pa. R.A.P. 1551(a)-(a)(3); Dear
v. Pa. Bd. of Prob. & Parole, 686 A.2d 423, 426 (Pa. Cmwlth. 1996).
       Therefore, as Counsel’s no-merit letter is technically sufficient, and Petitioner’s
Petition for Review is substantively without merit, we grant Counsel’s Motion to
Withdraw and affirm the Board’s February 20, 2018 ruling.


                                            _______________________________
                                            ELLEN CEISLER, Judge



       6
         See Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code § 69.414(a)
(unreported Commonwealth Court opinions issued after January 15, 2008 may be cited for their
persuasive value).

       7
         Notably, Petitioner never asserts that his decision to waive the revocation hearing was not
done in a knowing, intelligent, and voluntary manner.

                                                 9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Antonio Byrd,                      :
                 Petitioner        :
                                   :
     v.                            : No. 347 C.D. 2018
                                   :
Pennsylvania Board of              :
Probation and Parole,              :
                  Respondent       :


                                 ORDER

     AND NOW, this 9th day of November, 2018, James L. Best, Esquire’s Motion
for Leave to Withdraw as Counsel is GRANTED, and the Pennsylvania Board of
Probation and Parole’s February 20, 2018 ruling is AFFIRMED.



                                   ________________________________
                                   ELLEN CEISLER, Judge
