             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Travis Lee Kitchen,                        :
                  Petitioner               :
                                           :
            v.                             : No. 2161 C.D. 2014
                                           : Submitted: July 2, 2015
Pennsylvania Board of Probation            :
and Parole,                                :
                 Respondent                :


BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                       FILED: September 30, 2015

            Travis Lee Kitchen petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal. Kitchen’s appointed counsel, Erie County Assistant Public Defender Tina
M. Fryling (Counsel), has filed an application for leave to withdraw as counsel.
Finding no error in the Board’s decision, we affirm and also grant Counsel leave to
withdraw.
            Kitchen’s original sentence stems from convictions in 1999 for
receiving stolen property and bad checks and convictions in 2000 for sexual abuse
of children (2 counts). He received an aggregated sentence on all of the charges
equaling 4 years, 10 months to 14 years, eight months. His maximum sentence
date was calculated to be March 2, 2014.
             On September 19, 2005, Kitchen was paroled. He remained on parole
until May 14, 2013, when he was arrested on new criminal charges of possession
of a controlled substance, with intent to deliver. Specifically, Kitchen was charged
with selling Oxycodone tablets to a confidential informant on two occasions in
2012. A Board detainer was then lodged against him. Kitchen remained in prison
on the new criminal charges because he was unable to post bail.
             On February 26, 2014, Kitchen entered a guilty plea to one count of
delivery of a controlled substance and was sentenced to a term of incarceration
ending on May 8, 2014, at which time he was detained on the Board’s warrant and
committed to SCI-Albion.
             Prior to his return to SCI-Albion, Kitchen waived his right to counsel
and to a panel hearing and requested that his hearing be held before an examiner.
Certified Record (C.R.), Item 10 at 96-97. After the hearing, the examiner issued a
report recommending that Kitchen be recommitted for 12 months. The report
noted that the presumptive range for backtime to be served was 24-36 months;
however, the examiner recommended a lesser recommittal because of Kitchen’s
positive adjustment on parole from 2005 until the time of his arrest. C.R. Item 10
at 90.
             The report also chronicled Kitchen’s account of the circumstances of
his arrest and conviction. Kitchen claimed that he had a friend with an opiate
problem, whom he convinced not to buy drugs from “Michelle.” Instead, Kitchen
offered to supply this friend with prescription drugs to relieve her withdrawal
symptoms. Because his friend owed Michelle money, he gave Michelle, who
turned out to be a confidential informant, some of these prescription drugs to pay
his friend’s debt. Kitchen regards himself as an enabler, not a drug dealer.


                                         2
                 On May 28, 2014, the Board recommitted Kitchen as a convicted
parole violator to serve 12 months backtime. Kitchen was convicted of delivery of
a controlled substance pursuant to Section 13(a)(30) of the Controlled Substance,
Drug, Device and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 233, as
amended, 35 P.S. §780-113(a)(30). Section 13(f)(1) of the Drug Act classifies the
delivery of Oxycodone, a Schedule II drug, as a felony with a statutory maximum
sentence of 15 years. 35 P.S. §780-113(f)(1).1 Title 37 of the Pennsylvania Code
establishes the presumptive ranges for parole violators convicted of drug crimes.
37 Pa. Code §75.2.2 A felony drug law violation with a statutory maximum of 15
years has a presumptive recommitment range of 24-36 months. Id.



1
    It states, in relevant part, as follows:
           Any person who violates clause (12), (14) or (30) of subsection (a) with respect
           to:
                  (1) A controlled substance or counterfeit substance classified in
                  Schedule I or II which is a narcotic drug, is guilty of a felony and
                  upon conviction thereof shall be sentenced to imprisonment not
                  exceeding fifteen years, or to pay a fine not exceeding two hundred
                  fifty thousand dollars ($250,000), or both or such larger amount as
                  is sufficient to exhaust the assets utilized in and the profits
                  obtained from the illegal activity.
35 P.S. §780-113(f)(1).
2
  It states, in relevant part, as follows:
         If the Board orders the recommitment of a parolee as a convicted parole violator,
         the parolee shall be recommitted to serve an additional part of the term which the
         parolee would have been compelled to serve had he not been paroled, in
         accordance with the following presumptive ranges:
                                                   ***
         Drug Law Violations:
         Felony with Statutory Maximum of 15 years [-] 24 months to 36 months[.]
37 Pa. Code §75.2.


                                                 3
               The Board accepted the examiner’s report and reduced Kitchen’s
backtime to 12 months, based on his “positive adjustment on parole since 2005
until arrest.”    Board opinion, C.R. No. 11 at 101.                The Board recalculated
Kitchen’s maximum sentence date to October 19, 2022.
               Kitchen filed an administrative appeal seeking “some credit” towards
his backtime. C.R. No. 12 at 103. His request was denied. The Board explained
that Kitchen voluntarily waived his right to counsel and a panel hearing; that the
Board was entitled to forfeit the time he spent at liberty on parole, based on his
new conviction; and that his maximum sentence date was correctly calculated.
               Kitchen petitioned for this Court’s review.3 The petition for review
states that the Board erred in “extending his maximum sentence date.” Petition for
Review, ¶5.       Counsel seeks to withdraw from her representation of Kitchen
because she believes this issue lacks merit. On March 30, 2015, this Court ordered
Counsel to advise Kitchen of her request to withdraw and to inform Kitchen of his
right to obtain counsel at his own expense or to file a pro se brief to this Court.
Counsel complied with this Order on April 13, 2015. New counsel has not filed an
appearance, and Kitchen has not filed a brief to this Court in support of the issue
raised in the petition for review.
               We begin with the technical requirements for a petition to withdraw
from representation. When counsel believes an appeal lacks merit he may file a
petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.



3
  Our review is to determine whether substantial evidence supports the Board’s decision, whether
the Board erred as a matter of law, and whether the parolee’s constitutional rights were violated.
Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth.
2009).


                                                4
1988). This Court has summarized the requirements established by Turner as
follows:

             [C]ounsel seeking to withdraw from representation of a
             petitioner seeking review of a determination of the Board
             must provide a “no-merit” letter which details “the nature
             and extent of [the attorney’s] review and list[s] each issue
             the petitioner wished to have raised, with counsel’s
             explanation of why those issues are meritless.”

Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (quoting Turner, 544
A.2d at 928). “Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement
advising petitioner of his right to proceed pro se or by new counsel.” Zerby, 964
A.2d at 960. This Court then reviews the contents of the no-merit letter to
determine whether it meets the requirements of Turner. Id. If it does, this Court
conducts its own review of the merits of the parolee’s appeal. If we agree with
counsel that the issues lack merit, then we will permit counsel to withdraw and
deny relief. Id.
             Counsel’s no-merit letter details her review of Kitchen’s criminal
record, addresses the issue raised by Kitchen and explains why it lacks merit.
Additionally, the record establishes that Kitchen received a copy of the no-merit
letter and Counsel’s petition to withdraw and was advised of his right to proceed
pro se or by new counsel.
             Having determined that Counsel has fulfilled the procedural
requirements for withdrawal of representation, we now consider the merits of
Kitchen’s appeal. Because Kitchen has not filed a brief, we are left with his claim
in the petition for review that the Board erred in its calculation of his maximum
sentence date.

                                          5
             Convicted parole violators are subject to the following:

             (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 serve had the parole not
             been granted 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).

61 Pa. C.S. §6138(a). In sum, when a convicted parole violator is recommitted, he
is not given credit for the time spent at liberty on parole, unless the Board, in its
discretion, concludes a credit is warranted.       When “reviewing the Board’s
discretionary acts, this Court will only overturn the Board’s actions where the
Board acts in bad faith, fraudulently, capriciously or commits an abuse of its
power.” Badelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92, 96

                                          6
(Pa. Cmwlth. 2013), petition for allowance of appeal denied, 83 A.3d 416 (Pa.
2014). An arbitrary, capricious or unreasonable determination is established when
the Board’s actions cannot be supported by the record. Id.
             Kitchen fails to establish, or even claim, the Board abused its
discretion. In fact, the record establishes that the Board did consider the long
period of time Kitchen spent on parole, prior to his arrest, and rewarded Kitchen by
limiting his backtime to 12 months; the presumptive range permitted the Board to
impose backtime of up to 36 months.
             The Board is not required to credit Kitchen for the time he spent at
liberty on parole. Kitchen was given the opportunity to have his time spent outside
of prison credited toward his sentence.       However, he lost that privilege by
committing a new criminal offense. As such, the Board properly forfeited his
street time and recommitted him to serve the remaining portion of his original
sentence.
             Counsel has fulfilled the technical requirements for withdrawing her
representation, and our independent review of the record before the Board reveals
that Kitchen’s appeal lacks merit. Accordingly, we grant Counsel’s application for
leave to withdraw and affirm the Board’s decision.

                                              ______________________________
                                              MARY HANNAH LEAVITT, Judge

President Judge Pellegrini concurs in the result only.




                                          7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Travis Lee Kitchen,                   :
                  Petitioner          :
                                      :
            v.                        : No. 2161 C.D. 2014
                                      :
Pennsylvania Board of Probation       :
and Parole,                           :
                 Respondent           :


                                  ORDER


            AND NOW, this 30th day of September, 2015, the order of the
Pennsylvania Board of Probation and Parole, dated October 19, 2014, is
AFFIRMED and the application for leave to withdraw as counsel filed by Tina M.
Fryling is GRANTED.

                                          ______________________________
                                          MARY HANNAH LEAVITT, Judge
