         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christopher Hughes,                 :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 433 C.D. 2017
                                    : Submitted: October 6, 2017
Pennsylvania Board                  :
of Probation and Parole,            :
                                    :
                         Respondent :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE J. WESLEY OLER, Jr., Senior Judge


OPINION BY JUDGE WOJCIK                            FILED: February 14, 2018


            Christopher Hughes petitions for review of the Pennsylvania Board of
Probation and Parole’s (Board) March 6, 2017 decision denying his request for
administrative relief and affirming the Board’s March 8, 2016 order recommitting
Hughes as a convicted parole violator (CPV) and recalculating his parole violation
maximum date. Appointed counsel, David Crowley, Esq. (Counsel) has filed an
application to withdraw as counsel, asserting that Hughes’ petition for review is
meritless. We grant Counsel’s application and affirm the Board’s decision.
            On February 1, 2012, Hughes was sentenced to a 2- to 5-year term with
a minimum expiration date of December 27, 2013, and a maximum expiration date
of December 27, 2016. Certified Record (C.R.) at 12-13. On December 29, 2013,
Hughes was released on parole. Id. Upon his release, Hughes signed the following
acknowledgement:
            If you are convicted of a crime committed while on
            parole/reparole, the Board has the authority, after an
            appropriate hearing, to recommit you to serve the balance
            of the sentence or sentences which you were serving when
            paroled or reparoled, with no credit for time at liberty on
            parole.
C.R. at 14; Section 6138(a) of the Prisons and Parole Code (Code), 61 Pa. C.S.
§6138(a).
            On August 18, 2014, Hughes was arrested in Lackawanna County on
drug-related charges and held in lieu of $50,000 bail, which was never posted. C.R.
at 17-20, 31. The Board issued a detainer warrant that same date. C.R. at 21. After
Hughes entered a guilty plea, he waived his right to a revocation hearing and was
recommitted as a CPV to serve 18 months backtime when available. C.R. at 24-25,
52-61. He filed a pro se administrative appeal from that decision on April 24, 2015.
C.R. at 64-66. The Board affirmed its decision on June 29, 2015, and Hughes did
not appeal. C.R. at 70-71.
            On September 10, 2015, following the withdrawal and re-entry of his
guilty plea, Hughes was sentenced to a term of 18 to 36 months, followed by 3 years
of special probation. C.R. at 79. He again waived his right to a revocation hearing.
C.R. at 85-86. The Board rescinded its prior action and recommitted Hughes as a
CPV to serve 18 months backtime, establishing a new maximum parole date of
November 1, 2018. C.R. at 87-99.
            Hughes filed an administrative appeal, asserting, among other things,
that the Board impermissibly exceeded the judicially-imposed maximum sentence
date when it recalculated his maximum date for release on parole. C.R. at 101-105.
In its March 6, 2017 determination, the Board denied Hughes’ appeal, C.R. at 110,



                                         2
and Hughes filed a petition for review with this Court.1 Thereafter, Counsel filed an
application to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738
(1967),2 contending that the appeal is meritless.

               When a court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if counsel: (1)                       notifies the
petitioner of the request to withdraw; (2) furnishes the petitioner with a copy of an
Anders brief or a no-merit letter satisfying the requirements of Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988);3 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
counsel has fully complied with the technical requirements for withdrawal, the Court
will independently review the merits of the petitioner’s claims. Id. at 70.

       In this appeal, Hughes had a statutory right to counsel, and Counsel was only
       1
         Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether necessary findings of fact are supported by
substantial evidence. McCloud v. Pennsylvania Board of Probation and Parole, 834 A.2d 1210,
1212 n.6 (Pa. Cmwlth. 2003).
       2
        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).

       3
          In Turner, our Supreme Court held that counsel seeking to withdraw from a case in which
the right to counsel does not derive from the United States Constitution 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. 544
A.2d at 928.
                                                3
required to submit a no-merit letter in support of the petition to withdraw. A no-
merit letter must set forth: (i) the nature and extent of counsel’s review of the case;
(ii) each issue that the inmate wishes to raise on appeal; and (iii) counsel’s
explanation of why each of those issues is meritless. Miskovitch, 77 A.3d at 69-70.
Where a no-merit letter is sufficient but counsel has instead chosen to submit an
Anders brief, we apply the lack of merit standard. 77 A.3d at 70.
             The record reflects that Counsel informed Hughes of Counsel’s request
to withdraw; provided Hughes with a copy of the Anders brief that details Counsel’s
review of the issues and the reasons why Counsel concluded those issues are
meritless; and advised Hughes of his right to retain new counsel or raise any new
points he might deem worthy of consideration. Because Counsel has satisfied the
procedural requirements for withdrawal, the Court will independently review the
merits of Hughes’ appeal.
             Hughes first argues that the Board acted contrary to law by imposing a
sanction that exceeds the remaining balance of his judicially-imposed maximum
sentence when it recomputed his maximum parole date to November 1, 2018.
Although phrased in various ways, it is clear that this argument rests entirely on
Hughes’ mistaken belief that the maximum date of his sentence, rather than the
maximum length of his sentence, is controlling for purposes of recalculating his
parole violation maximum date.
             Section 6138(a)(1) Code provides that any parolee who, during the
period of parole, commits a crime punishable by imprisonment and is convicted or
found guilty of that crime may be recommitted as a convicted parole violator. 61
Pa. C.S. §6138(a)(1). If the parolee is recommitted as a CPV, he must serve the
remainder of the term that he would have been compelled to serve had parole not


                                          4
been granted (i.e., “backtime”), with no time for liberty on parole, unless the Board,
in the exercise of its sole discretion, chooses to award credit. Section 6138(a)(2),
(2.1) of the Code, 61 Pa. C.S. §6138(a)(2), (2.1). If a new state sentence is imposed,
the parolee must serve the balance of the original sentence prior to commencement
of the new term. Section 6138(a)(5)(i) of the Code, 61 Pa. C.S. §6138(a)(5)(i).4
               When Hughes was paroled on December 29, 2013, 1,094 days remained
on his original sentence. C.R. at 98-99, 54, 57. He was recommitted as a CPV and
returned to the Board’s custody on November 3, 2015. The Board’s recommitment
order properly added the remainder of his original sentence, 1,094 days, to the date
of his return to the Board’s custody. Thus, when the Board imposed backtime, the
Board did not impose an additional sentence on Hughes but, rather, directed Hughes
to complete the original judicially-mandated sentence. Epps v. Pennsylvania Board
of Probation and Parole, 565 A.2d 214, 217 (Pa. Cmwlth. 1989). See also Gundy
v. Pennsylvania Board of Probation and Parole, 478 A.2d 139, 141 (Pa. Cmwlth.
1984) (noting that the Board’s action in recommitting a parolee “had no effect” upon
the parolee’s judicially-imposed sentence). Accordingly, Hughes’ argument that the
Board erred in extending his new maximum parole date beyond the maximum date
of his original sentence is meritless.
               Hughes also argues that the Board erred in denying him credit for time
he spent at liberty on parole. Hughes asserts that Section 6138 of the Code requires
the Board to credit a parolee with street time prior to an arrest on new charges where




       4
         In contrast, Section 6138(c) of the Code provides that a technical parole violator (a parolee
who violates the terms and conditions of his parole other than by the commission of a crime) will
be given credit for street time served in good standing prior to the parolee’s recommitment. 61 Pa.
C.S. §6138(c).
                                                  5
no warrants or other circumstances exist. In this regard, also, Hughes is mistaken,
as the Code expressly provides to the contrary:

              If the parolee’s recommitment [as a CPV] 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.
Section 6138(a)(2) of the Code, 61 Pa. C.S. §6138(a)(2).5
              Finally, Hughes contends that the Board’s failure to credit him for time
served pursuant to the Board’s detainer is contrary to law, particularly where the
Board’s detainer has “stripped” his right to be released on bail. Petition for Review
¶3(b). As to this issue, the law is settled:

              [I]f a defendant is being held in custody solely because of
              a detainer lodged by the Board and has otherwise met the
              requirements for bail on the new criminal charges, the time
              which he spent in custody shall be credited against his new
              sentence. If a defendant, however, remains incarcerated
              prior to trial because he has failed to satisfy bail
              requirements on the new criminal charges, then the time
              spent in custody shall be credited to his new sentence.
Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980)
(emphasis in original); Hammonds v. Pennsylvania Board of Probation and Parole,
143 A.3d 994, 997 (Pa. Cmwlth. 2016). Here, Hughes did not post bail on the new
criminal charges, and the Board’s detainer did not affect his ability to do so.
Accordingly, this argument also is meritless.


       5
           Hughes does not raise any issue implicating the Board’s discretion under Section
6138(a)(2.1) of the Code, 61 Pa. C.S. §6138(a)(2.1). We note that the Board appears to have
satisfied the requirements of Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d,
466, 474-75 (Pa. 2017), by noting on the Hearing Examiner’s report, “Revoke street time –
continued drug activity.” C.R. at 89.
                                               6
             We recognize that the arguments raised by Hughes are persistently
raised on appeals from Board decisions. Thus, we reiterate that “backtime” is that
part of an existing judicially-imposed sentence that the Board directs a parolee to
complete, following a civil administrative hearing and a finding that the parolee
violated the terms and conditions of parole, which time must be served before the
parolee may again be eligible to be considered for a grant of parole. When Hughes
was released on parole, 1,094 days remained on his prior sentence, which is the
difference between his original maximum sentence date (December 27, 2016), and
his parole date (December 29, 2013). The remainder of Hughes’ prior sentence did
not begin to run until he was returned to the Board’s custody on November 3, 2015.
Hughes was not entitled to credit for the period of time he was at liberty on parole,
61 Pa. C.S. §6138(a)(2), or the period of time he was incarcerated on both the new
criminal charges and the Board’s detainer. Gaito. Thus, the Board properly added
1,094 days to November 2, 2015, and correctly recalculated Hughes’ maximum
parole date to November 1, 2018.
             Accordingly, we grant Counsel’s application to withdraw and affirm
the Board’s decision.




                                       MICHAEL H. WOJCIK, Judge




                                         7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Hughes,                 :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 433 C.D. 2017
                                    :
Pennsylvania Board                  :
of Probation and Parole,            :
                                    :
                         Respondent :



                                 ORDER


           AND NOW, this 14th day of February, 2018, the Application to
Withdraw as Counsel filed by David Crowley, Esq., is GRANTED, and the decision
of the Pennsylvania Board of Probation and Parole, dated March 6, 2017, is
AFFRIMED.




                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
