        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Coker,                       :
                          Petitioner     :
                                         :
             v.                          :   No. 376 C.D. 2018
                                         :   Submitted: October 19, 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 SIMPSON                         FILED: December 18, 2018

             Christopher Coker (Coker) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his request for
administrative relief following a Board recommitment and recalculation order. Also
before us is a petition to withdraw as counsel filed by Coker’s court-appointed
attorney, Kent D. Watkins, Esquire (Attorney Watkins), on the ground that Coker’s
appeal is without merit. For the following reasons, we grant Attorney Watkins’
petition to withdraw as counsel, and we affirm the Board’s order.


             In 2005, the Philadelphia County Court of Common Pleas (trial court)
sentenced Coker to 7 to 14 years in prison based on his convictions for voluntary
manslaughter and possession of an instrument of crime (original sentence). His
original minimum and maximum sentence dates were August 12, 2010, and August
12, 2017, respectively.
            In September 2012, the Board granted Coker parole; he was released
about a month later. While on parole, police arrested Coker. Coker was charged
with numerous new criminal offenses. The Board filed its warrant to commit and
detain Coker in February 2014. The trial court set monetary bail for Coker on
February 11, 2014. Coker did not immediately post bail. In June 2014, the trial
court modified Coker’s bail to release on recognizance.


            The Board provided Coker with a notice of charges and its intent to
hold a detention hearing on Coker’s new charges. Shortly thereafter, the Board held
a detention hearing. The Board subsequently issued a decision to detain Coker
pending disposition of his new charges.


            In January 2017, Coker was found guilty of several criminal offenses
arising from his new charges. Sentencing was deferred until March 2017, and bail
was revoked. Ultimately, the trial court sentenced Coker to an aggregate sentence
of 15½ to 44 years in prison.


            In March 2017, the Board provided Coker with a notice of charges and
its intent to hold a revocation hearing based on Coker’s new convictions. The Board
subsequently held a revocation hearing at which Coker was represented by counsel.
Ultimately, a Board hearing examiner and a Board member voted to recommit Coker
as a convicted parole violator (CPV) for 30 months.


            The Board’s decision formally recommitted Coker, and it recomputed
his original maximum sentence date as June 23, 2019. Coker filed a petition for



                                          2
administrative relief in which he asserted the Board did not properly calculate “[his]
time given by the [B]oard, return to custody date and re-parole date.” Certified
Record (C.R.) at 164. Coker also argued the Board did not give him credit for all
time served exclusively on the Board’s warrant. The Board denied Coker’s petition
for administrative relief. Coker filed a petition for review to this Court.


             This Court appointed Attorney Watkins to represent Coker. Shortly
after his appointment, Attorney Watkins filed his petition to withdraw as counsel
based on his belief that Coker’s appeal is without merit.


             Counsel seeking to withdraw must conduct a zealous review of the case
and submit a no-merit letter to this Court detailing the nature and extent of counsel’s
diligent review, listing the issues the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting permission to withdraw.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Hughes v. Pa. Bd. of Prob. &
Parole, 977 A.2d 19 (Pa. Cmwlth. 2009) (en banc); Zerby v. Shanon, 964 A.2d 956
(Pa. Cmwlth. 2009). The no-merit letter must include “‘substantial reasons for
concluding that a petitioner’s arguments are meritless.’” Zerby, 964 A.2d at 962
(quoting Jefferson v. Pa. Bd. of Prob. & Parole, 705 A.2d 513, 514 (Pa. Cmwlth.
1998)).


             In addition, counsel must send the petitioner: (1) a copy of the no-merit
letter; (2) a copy of the petition for leave to withdraw; and (3) a statement that
advises the petitioner of the right to retain substitute counsel or proceed by
representing himself.     Turner; Hughes.      If counsel satisfies these technical
requirements, this Court must conduct an independent review of the merits of the

                                           3
case. Turner; Hughes. If this Court determines the petitioner’s claims are without
merit, counsel will be permitted to withdraw and the petitioner will be denied relief.
Turner; Hughes.


                 Here, Attorney Watkins’ no-merit letter satisfies the technical
requirements of Turner. Attorney Watkins provided Coker with a copy of the no-
merit letter and his request to withdraw. He advised Coker of his right to retain new
counsel or proceed by representing himself.1 The letter sets forth the procedural
history of the case, reflecting Attorney Watkins’ review of the record. Attorney
Watkins states he conducted a thorough review of the record. He sets forth the issue
Coker raised in his petition for review. Attorney Watkins provides an analysis as to
why the issue lacks merit. He explains Coker’s issue lacks merit because the Board
properly allocated credit and its recalculation of Coker’s maximum sentence date is
correct.       Because we are satisfied that Attorney Watkins discharged his
responsibility in complying with the technical requirements of a no-merit letter, we
conduct an independent review to determine whether the issue raised in Coker’s
petition for review lacks merit.2


                 In his petition for review, Coker raises one issue: whether the Board
erred in failing to afford him credit for all of the time he served exclusively pursuant
to the Board’s warrant.



       1
           Coker filed a brief on his own behalf.
       2
         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. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).

                                                    4
             The Prisons and Parole Code (Parole 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 CPV. 61 Pa. C.S.
§6138(a)(1). If a parolee is recommitted as a CPV, he must serve the remainder of
the term, which he would have been compelled to serve had parole not been granted,
with no credit for the time at liberty on parole, unless the Board chooses to award
credit. 61 Pa. C.S. §§6138(a)(2), (2.1). “When computing the time yet to be served
on the original sentence, the [CPV’s] street time is added to the original maximum
expiration date to create a new maximum expiry.” Armbruster v. Pa. Bd. of Prob. &
Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). Further, where a parolee is paroled
from a state correctional institution and a new state sentence is imposed on him, the
parolee must serve the balance of his original state sentence before serving the new
sentence. 61 Pa. C.S. §6138(a)(5)(i).


             In addition, “where an offender is incarcerated on both a Board detainer
and new criminal charges, all time spent in confinement must be credited to either
the new sentence or the original sentence.” Martin v. Pa. Bd. of Prob. & Parole, 840
A.2d 299, 309 (Pa. 2003). Time incarcerated shall be credited to a CPV’s original
term only when he has satisfied bail requirements on the new offense and, therefore,
remains incarcerated solely by reason of the Board’s detainer. Gaito v. Pa. Bd. of
Prob. & Parole, 412 A.2d 568 (Pa. 1980). When bail is not posted, time incarcerated
on both the new criminal charges and the Board’s detainer must apply to the new
sentence. Id.




                                         5
               Here, when the Board released Coker on parole in October 2012, his
original maximum sentence date was August 12, 2017. C.R. at 12. Thus, at that
time, Coker had 1,753 days remaining on his original sentence. C.R. at 156. The
Board provided Coker with credit totaling 956 days on his original sentence for the
periods he was incarcerated solely on the Board’s detainer (February 11 through
February 12, 2014, and June 3, 2014, through January 13, 2017). Id. Based on
Gaito, the Board properly applied this credit to Coker’s original sentence.3


               Subtracting the 956 days of credit from the 1,753 days remaining on
Coker’s original sentence at the time of his parole, results in a total of 797 days
remaining on Coker’s original sentence. C.R. at 156. Adding 797 days to Coker’s
custody for return date of April 17, 2017 results in a new maximum sentence date of
June 23, 2019, as the Board properly determined. Id. Accordingly, we grant
Attorney Watkins’ petition to withdraw as counsel and affirm the Board’s order
denying administrative relief.4

       3
          On the other hand, Coker was not detained solely on the Board’s warrant between
February 12, 2014 (the date the new criminal charges were filed) and June 3, 2014 (the date his
bail was changed to release on recognizance). Certified Record at 130, 156. Thus, Coker was not
entitled to credit toward his original sentence for this period. Gaito v. Pa. Bd. of Prob. & Parole,
412 A.2d 568 (Pa. 1980).

       4
           In the brief filed on his own behalf, Coker argues the Board violated statutory and
constitutional law pursuant to the separation of powers doctrine and due process when it added
797 days to his original sentence. Coker asserts that under the separation of powers doctrine, the
judicial branch controls every judicially imposed sentence. Once that sentence is imposed, Coker
contends, it is provided to the Department of Corrections so an individual can serve no more than
his maximum sentence. Coker maintains the Board’s only role is to supervise the judicially
imposed sentence. Under the separation of powers doctrine, Coker argues, the Board lacks power
to alter a judicially imposed sentence. He asserts the Board can only recommit a parolee for the
balance of his unexpired term. Coker contends altering and imposing any additional sentence
violates double jeopardy because it imposes multiple punishments for the same offense and the
right to due process because a parolee’s liberty interest cannot be taken without first holding a



                                                 6
                                              ROBERT SIMPSON, Judge




hearing in a venue with jurisdiction over both parties. Coker maintains the Board violated his
rights by failing to give him credit for time spent at liberty on parole and by adding 797 days to
his original sentence.
        However, Coker did not raise these issues in his petition for administrative relief with the
Board. Thus, they are waived. McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1094-95
(Pa. Cmwlth. 1993) (“It has been the holding of this [C]ourt that issues not raised by a [petitioner]
before the Board in an administrative appeal are waived for purposes of appellate review by this
court.”).
        In any event, even if not waived, Coker’s arguments lack merit. Contrary to Coker’s
assertions, the Board has “the power to recommit a [CPV] to serve the balance of the court-
imposed maximum sentence if the new crime was committed by the parolee before the expiration
of the maximum sentence originally imposed.” Knisley v. Pa. Bd. of Prob. & Parole, 362 A.2d
1146, 1148 (Pa. Cmwlth. 1976). Further, “the constitutional challenges to this procedure [have
been] rejected by this Court ….” Id. Indeed, “[t]he statutory provision denying credit for time
spent on parole … does not violate constitutional due process, equal protection and the prohibitions
against double jeopardy, bills of attainder, cruel and unusual punishment, and ex post facto laws.”
Bellamy v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 439 C.D. 2014, filed May 7, 2015), slip
op. at 6-7, 2015 WL 5413883, at *4 (citations omitted).
        In addition, we recognize: “The Board can only require that a parolee serve the remaining
balance of his unexpired term since the Board does not have the power to alter a judicially-imposed
sentence.” Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496, 502 (Pa. Cmwlth. 2012) (citation
omitted). However, contrary to Coker’s assertions, “when a parolee is recommitted due to criminal
conviction, his maximum sentence date may be extended to account for all street-time, regardless
of good or delinquent standing.” Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596, 599 (Pa.
Cmwlth. 2011) (en banc). Additionally, the Supreme Court specifically holds that the Board’s
authority to extend maximum sentence expiration dates under such circumstances does not usurp
the courts’ sentencing functions or violate a parolee’s due process rights. Gaito. And, contrary to
Coker’s assertions, “[the] Board has not … unlawfully extended the term of his maximum
sentence, but has merely withdrawn from the petitioner credit for the time he was at liberty on
parole.” Young v. Bd. of Prob. & Parole, 409 A.2d 843, 846 n.5 (Pa. 1979) (citation omitted). As
such, even if properly preserved, Coker’s arguments lack merit.

                                                 7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Coker,                     :
                        Petitioner     :
                                       :
            v.                         :   No. 376 C.D. 2018
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                        Respondent     :


                                     ORDER

            AND NOW, this 18th day of December, 2018, we GRANT Kent D.
Watkins, Esquire’s petition to withdraw as counsel, and we AFFIRM the order of
the Pennsylvania Board of Probation and Parole.




                                      ROBERT SIMPSON, Judge
