         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bradley P. Christman,               :
                                    :
                         Petitioner :
                                    :
                  v.                : No. 1139 C.D. 2018
                                    : Submitted: January 18, 2019
Pennsylvania Board of               :
Probation and Parole,               :
                                    :
                         Respondent :

BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                         FILED: June 28, 2019



            Bradley P. Christman (Parolee) petitions for review from an order of
the Pennsylvania Board of Probation and Parole (Board) that denied his Petition
for Administrative Review challenging the Board’s calculation of his maximum
sentence expiry date. Also before us is an application for leave to withdraw as
counsel filed by Parolee’s court-appointed attorney, David Crowley, Esquire
(Counsel), on the ground that Parolee’s appeal is without merit. For the reasons
that follow, we grant Counsel’s application for leave to withdraw as counsel, and
we affirm the Board’s order.
            On September 4, 1997, Parolee was sentenced in the Lycoming
County Court of Common Pleas to a 2- to 10-year sentence based on his guilty plea
to an aggravated assault charge, and a consecutive 90-day sentence based on his
guilty plea to a driving under suspension charge. Certified Record (C.R.) at 1.
With an effective date of September 4, 1997, Parolee’s sentence had a minimum
expiration date of December 3, 1999, and a maximum sentence expiry date of
September 4, 2007. Id. at 1, 2.
            Parolee alleges that he was paroled from the State Correctional
Institution (SCI) at Coal Township on this sentence on December 27, 1999, to
Community Corrections Center (CCC) Conewago. C.R. at 118. He contends that
he was sent to Community Contract Facility (CCF) Capitol Pavilion on February
10, 2000, and then released on parole to a home plan on March 27, 2000. Id.
            Parolee claims that he was detained in the Northumberland County
Jail as a parole violator as of July 2, 2007, and that he was released due to his
original maximum date on September 4, 2007. C.R. 118. He contends that he was
sent back to SCI Coal Township on January 7, 2008, as a parole violator, and that
he was reparoled from his original sentence to a home plan on June 15, 2008. Id.
On November 18, 2008, Parolee was declared delinquent. Id. at 83. On December
21, 2008, Parolee was stopped for driving under the influence and for other
summary offenses in McKean County, Pennsylvania. Id.
            On February 21, 2009, Parolee was arrested by the Thomas County
Sheriff’s Department in Kansas. C.R. at 83. The Board issued a warrant to detain
Parolee and he was extradited to Pennsylvania on March 3, 2009, and housed at
SCI Coal Township.      Id.   An October 20, 2009 Department of Corrections
(Department) Sentence Status Summary (Summary) states that Parolee’s sentence
was recomputed on October 14, 2009, based on the technical parole violation, and
that his new maximum original sentence expiry date was calculated to be


                                        2
September 26, 2016. Id. at 1-2.1 A May 14, 2010 Board Decision and a Board
Order releasing Parolee on constructive reparole2 to serve the McKean County
sentence also states a maximum original sentence expiry date of September 26,
2016. Id. at 4-6. His actual date of release on constructive reparole from his
original sentence was August 10, 2010. Id. at 7 See also id. at 13, Department
August 13, 2010 Summary (As of August 10, 2010, “Inmate reparoled to turnover
to this detainer.”). Parolee does not allege, and the Certified Record does not
show, that he contested the Board’s recalculation of his new maximum sentence
expiry date at the time of its recalculation.
                On August 25, 2011, Parolee was released from incarceration on
parole from his McKean County sentence. C.R. at 18. On May 1, 2015, the Board
declared Parolee delinquent. Id. at 22. On February 3, 2016, Parolee was arrested



       1
          The Summary also states that Parolee was also being detained as of June 25, 2009,
based on the McKean County charges. C.R. at 3. An August 13, 2010 Department Summary
states that Parolee was sentenced to a 90-day to 5-year sentence on his guilty plea to the McKean
County driving under the influence charge, and a 90-day sentence based on his guilty plea to a
driving under suspension charge. Id. at 11.

       2
           As this Court has explained:

                        A prisoner on constructive parole is paroled from his
                original sentence to immediately begin serving a new sentence.
                Where an individual has been constructively paroled, “he is
                nonetheless ‘at liberty’ from the original sentence from the time he
                begins to serve the new sentence.” Under [Section 6138(a)(2) of
                the Prisons and Parole Code (Parole Code),] 61 Pa. C.S.
                §6138(a)(2), a parolee’s time under constructive parole is forfeited
                upon his recommitment as a convicted parole violator.

Spruill v. Pennsylvania Board of Probation and Parole, 158 A.3d 727, 730 (Pa. Cmwlth. 2017)
(citations and footnote omitted).


                                                 3
by the Henderson Police in Clark County, Nevada, on a Board warrant. Id. at 24,
83.
                On March 30, 2016, Parolee was recommitted as a technical parole
violator and the Board recalculated his new original sentence maximum expiry
date to be June 29, 2017. C.R. at 38-40. Parolee does not allege, and the Certified
Record does not show, that he contested the new maximum sentence expiry date at
the time of its recalculation. On May 3, 2016, Parolee was released on reparole.
Id. at 41.
                On May 9, 2016, the Pine Creek Township Police were notified that a
pickup truck was stolen from a landfill on May 7, 2016. C.R. at 107. On May 14,
2016,3 Parolee was arrested in Berrien County, Michigan by the Michigan State
Police for fleeing and eluding and possession of the stolen vehicle and a stolen
license plate. Id. at 58-63, 84, 99. That same day, the Board issued a warrant to
detain Parolee for his parole violation. Id. at 46.
                On June 14, 2016, Parolee was charged with burglary, theft by
unlawful taking, and receiving stolen property based on the theft of the truck in
Pine Creek Township. C.R. at 87-88. On July 6, 2016, Parolee was sentenced in
Michigan to serve 120 days’ incarceration with credit for 54 days on his Michigan
charges. Id. at 65-66. On August 21, 2016, Parolee was returned to Pennsylvania
and housed at SCI Benner. Id. at 84.
                On August 30, 2016, Parolee waived his right to a parole revocation
hearing. C.R. at 70. The Hearing Report states that the Board panel members
“[r]ecommend[ed] credit not be awarded. Offender was delinquent & out of state
at the time of arrest.” Id. at 78. On December 12, 2016, the Board recommitted

       3
           In the interim, on May 11, 2016, the Board declared Parolee delinquent. C.R. at 45.


                                                 4
Parolee as a technical and convicted parole violator to serve 12 months’ backtime.
Id. at 91-92. In the Decision and Order to Recommit, the Board recalculated
Parolee’s maximum sentence expiry date to be May 23, 2022. Id. at 89-90, 91-92.
In its recalculation, the Board did not give Parolee credit for 1725 days of “street
time,” from his August 10, 2010 release on constructive reparole to his McKean
County sentence to May 1, 2015, when the Board declared that he was delinquent.
Id. at 89.
               On January 2, 2017, Parolee filed a Petition for Administrative
Review raising a Sentence Credit Challenge, which states:

               I was reparoled 05-03-2016. The offense and charge all
               happened after that. It states time and forf[e]iture
               happens to time after paroled. My street time is being
               take[n] from befor[e] that. This is turning a sentence of 2
               yr. 3 mo[s]. to 10 yrs. into a 25 yr. sentence. Please
               consider this. Thank you.
C.R. at 112.
               On January 12, 2017, the Board issued a Notice of Hearing and
Charges based on the pending Pine Creek Township burglary and theft charges.
C.R. at 93. That same day, Parolee waived his right to a detention hearing. Id. at
95. On March 10, 2017, the Board issued a Decision to detain Parolee pending the
disposition of the pending charges. Id. at 103. On January 10, 2018, Parolee
pleaded guilty to a summary disorderly conduct charge and was sentenced by the
Clinton County Court of Common Pleas to pay a $100.00 fine; all of the other
charges were nolle prossed. Id. at 104-05, 108, 111. In April 2018, the Board
concurred in the parole agent’s recommendation that no further action be taken
with respect to parolee’s new Clinton County summary conviction. Id. at 106.



                                           5
              On June 18, 2018, the Board received a letter and chart from Parolee
asking the Board to review its recalculation of his maximum sentence expiry date
in its December 12, 2016 Decision and Order to Recommit. C.R. at 115-118. In
his request, Parolee set forth an outline of the time for which he should receive
credit for the period of September 4, 1997, through June 1, 2018,4 and alleged that
the maximum expiry date on his original sentence should be approximately June 3,
2020, and not the Board’s recalculated date of May 23, 2022. Id.
              On July 31, 2018, the Board denied Parolee’s Petition for
Administrative Review stating, in relevant part:

                     This is a response to the administrative remedies
              form received from you on January 5, 2017 (postmarked
              01/03/2017). The Board also notes correspondence
              received June 7, 2018 (postmarked 06/04/2018).
              Because you object to credit allocation regarding your
              new max[imum sentence expiry date], your petition is a
              request for administrative review of the board decision
              mailed December 23, 2016 (recorded 12/12/2016). After
              further review of your case, it was determined there is no

       4
          Parolee no longer sought credit on his original sentence for the period of his “street
time,” i.e., from his August 10, 2010 release on constructive reparole to the May 1, 2015 Board
declaration of delinquency. Rather, Parolee sought the following credit on his original sentence:
(1) 45 days for the period of December 27, 1999, to February 10, 2000, that he spent in CCC
Conewago; (2) 45 days for the period of February 10, 2000, to March 27, 2000, that he spent in
CCF Capitol Pavilion; (3) 64 days for the period of July 2, 2007, to September 4, 2007, that he
spent in the Northumberland County Jail; (4) 159 days for the period of January 7, 2008, to June
15, 2008, that he spent in SCI Coal Township; (5) 17 days for the period of February 15, 2009, to
March 3, 2009, that he was detained in Kansas and transported to SCI Coal Township; (6) 525
days for the period of March 3, 2009, to August 10, 2010, and 377 days for the period of August
10, 2010, to August 22, 2011, that he served on his McKean County sentence that was to run
concurrently with his original sentence; (7) 22 days for the period of February 3, 2016, to
February 25, 2016, that he was detained in Nevada and transported to SCI Greene; (8) 69 days
for the period of February 25, 2016, to May 2, 2016, that he spent in CCC Progress; and (9) 649
days for the period of August 20, 2016 to June 1, 2018, that he was currently serving in SCI
Benner. C.R. at 118.


                                               6
               indication the Board failed to properly recalculate your
               maximum date and your request for relief is denied.

                     Accordingly, the board decision mailed December
               23, 2016 is hereby AFFIRMED.
C.R. at 120. Parolee then filed the instant petition for review.
               This Court appointed Counsel to represent Parolee in his appeal.
Thereafter, Counsel filed an application for leave to withdraw as counsel and a no-
merit letter under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), contending
that the appeal is meritless.
               When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may withdraw if counsel: (1) notifies the petitioner of the
request to withdraw; (2) furnishes the petitioner with a copy of a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), or a no-merit letter satisfying the
requirements of Turner;5 and (3) advises the petitioner of his right to retain new
counsel or submit a brief on his own behalf. Miskovitch v. Pennsylvania Board of
Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013). Once appointed



       5
         In cases where there is a constitutional right to counsel, court-appointed counsel seeking
to withdraw must submit an Anders brief that

               (1) provide[s] a summary of the procedural history and facts, with
               citations to the record; (2) refer[s] to anything in the record that
               counsel believes arguably supports the appeal; (3) set[s] forth
               counsel’s conclusion that the appeal is frivolous; and (4) states
               counsel’s reasons for concluding that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Where, as here, the right to counsel
is statutory and does not derive from the United States Constitution, counsel may provide a “no-
merit letter,” which details the nature and extent of the attorney’s review, identifies each issue
the petitioner wishes to raise, and explains why counsel concludes those issues are meritless.
Turner, 544 A.2d at 928.


                                                7
counsel has complied with the technical requirements for withdrawal, we
independently review the merits of the petitioner’s claims. Id. at 70.
               Upon review, Counsel’s letter satisfies the technical requirements of
Turner. The letter sets forth the procedural history of the case, reflecting his
review of the record.         Counsel states that he conducted a conscientious and
thorough review of the record, applicable statutes and case law. He sets forth the
credit issues Parolee raised in his June 18, 2018 letter and chart asking the Board to
review its recalculation of his maximum sentence expiry date, provides a thorough
analysis as to why the case lacks merit, and cites applicable statutes and case law
in support.
               Based on his review, Counsel concludes that Parolee’s appeal to this
Court is without merit, and he requests permission to withdraw. Counsel provided
Parolee with a copy of the Turner letter and his request to withdraw. Counsel
advised Parolee of his right to retain new counsel or proceed by representing
himself.6 As we are satisfied that Counsel has discharged his responsibility in
complying with the technical requirements to withdraw from representation, we
will conduct an independent review of whether Parolee’s petition for review lacks
merit.7
               From the outset, we note that Section 73.1(a)(1) and (4) of the Board’s
regulations states, in pertinent part:


       6
          Parolee has not retained new counsel, and has not filed a pro se brief in support of his
petition for review.
       7
         Our review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with law, and whether necessary findings were
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704; Miskovitch, 77 A.3d at 70 n.4.

                                                8
              (1) An interested party . . . may appeal a revocation
             decision. Appeals shall be received at the Board’s
             Central Office within 30 days of the mailing date of the
             Board’s order. When a timely appeal of a revocation
             decision has been filed, the revocation decision will not
             be deemed final for purpose of appeal to a court until the
             Board has mailed its decision on the appeal.

                                       ***

              (4) Second or subsequent appeals and appeals which are
             out of time under these rules will not be received.
37 Pa. Code §73.1(a)(1), (4).
             Similarly, Section 73.1(b)(1) and (3) of the Board’s regulations states,
in relevant part:

              (1) A parolee . . . may petition for administrative review
             under this subsection of determinations relating to
             revocation decisions which are not otherwise appealable
             under subsection (a). Petitions for administrative review
             shall be received at the Board’s Central Office within 30
             days of the mailing date of the Board’s determination.
             When a timely petition has been filed, the determination
             will not be deemed final for purposes of appeal to a court
             until the Board has mailed its response to the petition for
             administrative review.

                                       ***

              (3) Second or subsequent petitions for administrative
             review and petitions for administrative review which are
             out of time under this part will not be received.
37 Pa. Code §73.1(b)(1), (3). Based on the foregoing, if Parolee’s June 18, 2018
letter and chart are deemed to be either an untimely Administrative Appeal of the
Board’s December 12, 2016 Decision and Order to Recommit setting his
maximum sentence expiry date, or a second Petition for Administrative Review of



                                         9
the same, the Board was without jurisdiction to consider the claims raised therein
or to grant the requested relief.8
               To the extent that Parolee has not abandoned his claim for “street
time” credit raised in the timely January 2, 2017 Petition for Administrative
Review, our review of the certified record demonstrates that it is meritless.
Contrary to Parolee’s assertion, as outlined above, the Board’s December 12, 2016
Decision and Order to Recommit setting his maximum sentence expiry date did not
deny him credit for “street time” that occurred prior to his August 10, 2010
constructive parole to the McKean County sentence. See C.R. at 89. Rather, in its
recalculation, the Board did not give Parolee credit for 1725 days of “street time”
from his August 10, 2010 release on constructive reparole to May 1, 2015, when
the Board declared that he was delinquent. Id.



       8
          See, e.g., Merriweather v. Pennsylvania Board of Probation and Parole, 693 A.2d
1000, 1001 (Pa. Cmwlth. 1996) (“[T]he recommitment of fifteen months was ordered in the
Board’s June 11, 1996 decision and [the parolee] had thirty days from that date to challenge that
decision. However, [he] did not petition the Board until July 18, 1996. Therefore, although he
ostensibly appealed the Board’s June 28, 1996 decision, any challenge to the Board’s June 11,
1996 action, including its imposition of fifteen months backtime, would be untimely, thereby
divesting the Board of jurisdiction to consider [his] petition . . . .”) (citations omitted); McCaskill
v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092, 1095 n.4 (Pa. Cmwlth. 1993)
(“Because [the parolee’s] request for administrative relief was not filed with the Board until
1992, 6 years after the Board’s 1986 determination was issued, and 4 years after the Board’s
1988 determination was issued, any allegations concerning such determinations would have been
untimely and the Board would have been required to dismiss the appeal as it related to those
issues.”) (citation omitted); Ayers v. Pennsylvania Board of Probation and Parole, 565 A.2d
1257, 1258 (Pa. Cmwlth. 1989) (“Under the provisions of 37 Pa. Code § 73.1, a petition for
administrative review of a board determination relating to revocation decisions is to be received
within 30 days of the mailing date of the determination. . . . Because Petitioner did not file his
request for reconsideration of the Board’s October 26, 1987 order until April of 1989 it was
untimely, and since the timeliness of an appeal is jurisdictional, the Board was without authority
to consider it.”) (citation omitted).


                                                 10
             Section 6138(a)(2) of the Parole Code, which governs the revocation
of parole and the subsequent computation of a convicted parole violator’s
remaining sentence, states that no credit “shall be given . . . for the time at liberty
on parole.” 61 Pa. C.S. §6138(a)(2). The Board “may, in its discretion award
credit” to a convicted parole violator for time spent at liberty on parole unless the
offender is convicted of certain specified offenses. 61 Pa. C.S. §6138(a)(2.1).
These offenses include:

             (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)(2.1)(i), (ii).
             When the offense does not fall within one of the enumerated
exceptions, the Board must conduct an individual assessment of the facts and
circumstances surrounding his parole revocation. Pittman v. Pennsylvania Board
of Probation and Parole, 159 A.3d 466, 474 (Pa. 2017). “[T]he Board must
articulate the basis for its decision to grant or deny . . . credit for time served at
liberty on parole.”    Id.   Failure to provide a reason constitutes an abuse of
discretion necessitating a remand. Id.
             In this case, Parolee was not recommitted for reasons enumerated in
Subsections 6138(a)(2.1)(i) and (ii). Nevertheless, the Board denied credit for this
period of “street time.”     As noted above, in so doing, the Board provided a

                                          11
contemporaneous statement of reasons for the denial. C.R. at 78. Specifically, the
Board cited that Parolee “was delinquent & out of state at the time of arrest.” Id.
The Board’s reason is sufficient to deny Parolee credit for this period of time that
he served at liberty on parole. See Pittman. As a result, we conclude that the
Board did not err or abuse its discretion in this regard.
              Accordingly, we grant Counsel’s application to withdraw as counsel,
and affirm the Board’s order.9




                                            MICHAEL H. WOJCIK, Judge




       9
         It is well settled that this Court may affirm the Board’s order on any grounds where the
grounds for affirmance exist. Miller v. State Employees Retirement System, 137 A.3d 674, 680
n.6 (Pa. Cmwlth.), appeal denied, 160 A.3d 758 (Pa. 2016) (citations omitted).


                                               12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bradley P. Christman,              :
                                   :
                        Petitioner :
                                   :
                  v.               : No. 1139 C.D. 2018
                                   :
Pennsylvania Board of              :
Probation and Parole,              :
                                   :
                        Respondent :



                                 ORDER


            AND NOW, this 28th day of June, 2019, David Crowley, Esquire’s
application for leave to withdraw as counsel is GRANTED, and the order of the
Pennsylvania Board of Probation and Parole, dated July 31, 2018, is AFFIRMED.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
