           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lateef Phoenix,                        :
                   Petitioner          :
                                       :
      v.                               : No. 1243 C.D. 2017
                                       : SUBMITTED: May 4, 2018
Pennsylvania Board of Probation        :
and Parole,                            :
                 Respondent            :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                     FILED: August 10, 2018

      Lateef Phoenix (Petitioner) petitions for review of the Pennsylvania Board of
Probation and Parole’s (Board) August 8, 2017 Order affirming its March 25, 2016
decision to recommit Petitioner as a convicted parole violator to serve 30 months of
backtime, and recalculate his new maximum parole violation expiration date as
being December 2, 2018. Petitioner’s appointed counsel, Nicholas E. Newfield,
Esquire (Counsel), has submitted an Amended Application for Leave to Withdraw
Appearance (Amended Application), in which Counsel asserts the Petition for
Review (Petition) is frivolous and consequently seeks our permission to withdraw
from representing Petitioner in this matter.       We deny Counsel’s Amended
Application and, once again, direct him to file either a proper no-merit letter or an
advocate’s brief within 30 days of appointment.
      On February 1, 2010, Petitioner pled guilty in the Court of Common Pleas of
Dauphin County (Trial Court) to two counts of possession with intent to deliver
(PWID), for which he was sentenced to concurrent three-and-one-half to seven
years’ incarceration. Certified Record (C.R.) at 1. Petitioner was subsequently
released from prison on an unspecified date,1 but was again arrested on May 17,
2012. C.R. at 13. He pled guilty in the Trial Court on March 12, 2013 to one count
of PWID and was given a sentence of 11.5 to 23 months’ incarceration. Petitioner
also pled guilty to a related conspiracy charge, for which he was given 2 years’
probation, to be served concurrently with the 2013 PWID sentence. Id.
       Thereafter, on March 31, 2014, the Board granted Petitioner’s request for
parole and released him to a halfway house in Harrisburg on May 27, 2014. At that
time, the maximum parole violation expiration date was August 4, 2017 for one of
his 2010 PWID convictions, and June 13, 2016 for the other. C.R. at 22-27.
Petitioner successfully completed his time at the halfway house and, on June 5, 2014,
moved to a private residence located in Harrisburg. C.R. at 49.
       On August 5, 2015, a Board agent, along with a Harrisburg police officer,
conducted a parole check at Petitioner’s home and discovered two ASP batons2 and
a dagger, packages of heroin, several Clonazepam pills, and drug paraphernalia,
including packaging material and a digital scale. Id. As a result, Petitioner was
arrested and subsequently charged with PWID and a number of other drug-related
offenses on August 23, 2015. C.R. at 36-39.
       On October 20, 2015, the Board recommitted Petitioner for 6 months as a
technical parole violator for possession of weapons. C.R. at 79. Petitioner pled


       1
         The Certified Record is entirely silent regarding how, when, and why Petitioner was
released after his 2010 convictions.

       2
          This is a type of telescoping baton that is popular with law enforcement personnel. See
History & Heritage, ASP, Inc. (2018), https://www.asp-usa.com/pages/history-heritage, (last
visited July 30, 2018).


                                               2
guilty on January 5, 2016 to one count each of PWID and simple possession,3 for
which he was sentenced to an aggregate term of 2 to 5 years in prison. C.R. at 82-
83. This prompted the Board to modify its October 20, 2015 decision, as Petitioner
was now a convicted parole violator, as opposed to a technical parole violator. On
February 29, 2016, the Board ordered Petitioner to serve 30 months of backtime and
extended the maximum parole violation date for his existing 2010 and 2013
convictions to December 2, 2018. C.R. at 101.
       On April 1, 2016, Petitioner mailed a timely pro se request for administrative
relief to the Board. C.R. at 116. Therein, Petitioner asserted a confusing, multipart
argument regarding: (1) Conflicts between subsections 6138(a)(2) and (a)(5) of the
Prisons and Parole Code (Code), 61 Pa. C.S. § 6138(a)(2) and (a)(5), which articulate
some of the Board’s powers; (2) The lack of a statutory definition for the phrase “at
liberty on parole,” which is used in 61 Pa. C.S. § 6138(a)(2); (3) Violation of the
separation of powers; and (4) Due process violations relating to the Board’s February
29, 2016 recalculation of the maximum expiration dates for his 2010 and 2013
sentences. C.R. at 116-20. On these bases, Petitioner asked the Board to “recalculate
time credit and/or modify its decision to state a term not in excess of the original
maximum sentence imposed by the [Trial Court].” C.R. at 120. On August 8, 2017,
the Board denied Petitioner’s request for relief, stating:
               The Board has the authority to establish a parole violation
               maximum date in cases of convicted parole violators. See
               Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348
               (Pa. Cmwlth. 2007). Because you were recommitted as a
               convicted parole violator, you are not entitled to receive
               credit for any periods you were at liberty on parole. 61 Pa.
               C.S. § 6138(a)(2).

C.R. at 122.
       3
         The simple possession charge and guilty plea pertained to the Clonazepam found during
the course of the parole visit and subsequent search. C.R. at 82.

                                              3
       Counsel was subsequently appointed to represent Petitioner and filed the
Petition with our Court on September 7, 2017. However, by his own admission,
Counsel “[did] not have a copy of the Pro Se filing [through which Petitioner had
sought administrative relief from the Board].” Petition at 1. Therein, Counsel put
forth a single argument, one which had not been included in Petitioner’s earlier
request for administrative relief:
               The Board committed error in its calculation of
               [Petitioner’s] recalculated maximum date by setting a
               maximum date substantially beyond the time period which
               parolee can be required to serve on the underlying
               sentence. Specifically, the Board failed to properly credit
               time served by the Petitioner due solely to the Board’s
               detainer, and does not accurately reflect the periods of
               time during which Petitioner was incarcerated and under
               the Board’s jurisdiction.

Id. at 2.
       On December 1, 2017, Counsel submitted an Application for Leave to
Withdraw Appearance (Application) and a no-merit letter.4 In his Application,
Counsel stated he had “conducted a full and conscientious examination of the record
certified to this Honorable Court by the . . . Board” and had “concluded that there is
no factual or legal basis for Petitioner Phoenix’s appeal and that the said appeal is
frivolous.” Application at 3. In the no-merit letter, Counsel provided the following
explanation for his conclusion:
               The crux of Petitioner[’s] argument is that the Board lacks
               the authority to extend the maximum date of his original
               sentence. Petitioner avers that the Board is acting in a
               judicial manner, in so “changing” the original sentence.
               The greensheet indicates the Board chose not to credit

       4
          In a no-merit letter, appointed counsel seeks to withdraw from representation because
“the case lacks merit, even if it is not so anemic as to be deemed wholly frivolous.” Com. v. Wrecks,
931 A.2d 717, 722 (Pa. Super. 2007).


                                                 4
               Petitioner with any of the time spent at liberty on parole,
               which the [Board] has the authority to do . . .

               While Section 21.1(b) of the Parole Act, 61 P.S.
               §331.21a(b),[5] provides that a technical parole violator
               will be given credit for street time served in good standing,
               time spent in good standing prior to recommitment for
               technical violations is not shielded from forfeiture where
               the parolee subsequently commits a new crime and is
               recommitted as a convicted parole violator. Houser v.
               Pennsylvania Board of Probation and Parole, 682 A.2d
               1365 (Pa. Cmwlth. 1996), petition for allowance of appeal
               denied, 547 Pa. 759, 692 A.2d 568 (1997); Anderson v.
               Pennsylvania Board of Probation and Parole, 80 Pa.
               Cmwlth. 574, 472 A.2d 1168 (1984). Thus, as in the case
               with Petitioner . . . upon his recommitment as a convicted
               parole violator, in addition to losing all time spent at
               liberty during the current parole, he also forfeited all credit
               received for time spent in good standing while on parole
               prior to his previous recommitment as a technical parole
               violator.

               Accordingly, there is no merit in either law or fact to
               [Petitioner’s] challenge to the decision of the . . . Board.

Application, Ex. B at 2-3. Counsel also sent a letter to Petitioner, informing him that
Counsel had found the Petition to be without merit, explaining the reasons for this
determination and directing Petitioner to retain another attorney or file a pro se brief
with our Court, in the event that Petitioner disagreed with Counsel’s conclusion.
Application, Ex. A at 1-3.



       5
         Counsel referenced this statute, despite the fact it was repealed by our General Assembly
in 2009, and replaced by Section 6138(c)(2) of the Code, 61 Pa. C.S. §6138(c)(2). See Morton v.
Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 2023 C.D. 2016, filed Sept. 21, 2017), slip op. at 6
n.7, 2017 WL 4171304 at *3 n.7 (“Section 21.1(b) of what was commonly known as the Parole
Act, Act of August 6, 1941, P.L. 861, added by Section 5 of the Act of August 24, 1951, P.L. 1401,
as amended, 61 P.S. §§331.1–331.34a, was repealed by the Act of August 11, 2009, P.L. 147, No.
33, §11(b). The Parole Code was consolidated and became effective on October 13, 2009.”).

                                                5
       We denied Counsel’s Application on April 5, 2017, deeming the attached no-
merit letter to be inadequate for the following two reasons:
              First, the argument raised therein, pertaining to credit for
              the time Petitioner spent at liberty on parole, was raised
              for the first time in the letter itself and was not included in
              either Petitioner’s pro se filing with the Board, or the
              subsequent Petition that was filed by Counsel. See
              Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878
              (Pa. Cmwlth. 2012) (“The law is well settled that issues
              not raised before the Board either at the revocation hearing
              or in the petitioner’s administrative appeal are waived and
              cannot be considered for the first time on appeal.”).
              Second, this letter fails to address the only challenge made
              in the Petition, regarding credit for time served by
              Petitioner while incarcerated pursuant to a detainer issued
              by the Board.
Phoenix v. Pa. Bd. of Prob. and Parole (Pa. Cmwlth., No. 1243 C.D. 2017, filed
April 5, 2018), slip op. at 7, 2018 WL 1630602 at *3 (Phoenix I). We denied the
Application without prejudice and gave Counsel 30 days to file an amended
application and a revised no-merit letter, or a substantive brief in support of the
Petition. Id. at 7.
       Counsel chose the former option, submitting his Amended Application and
revised no-merit letter on April 23, 2018. As in his original Application, Counsel
stated that he had “conducted a full and conscientious examination of the record
certified to this Honorable Court by the . . . Board and ha[d] concluded that there is
no factual or legal basis for Petitioner Phoenix’s appeal and that the said appeal is
frivolous.” Amended Application at 3.
       In the appended, revised no-merit letter, Counsel listed four issues Petitioner
had raised in his pro se request for administrative relief, using language that virtually
duplicated that used by this Court in Phoenix I to summarize Petitioner’s
administrative challenge. Compare Amended Application, Ex. B at 1 with Phoenix


                                            6
I, slip op. at 3. Counsel then claimed that this Court had “narrowed the scope of
Petitioner’s arguments[,] indicating as follows: ‘Petitioner’s specific arguments are
extraordinarily confusing, the overarching theme, or general thrust, of Petitioner’s
request for administrative relief was that the Board improperly extended Petitioner’s
maximum date[.]’” Amended Application, Ex. B at 2. Counsel followed this by
quoting subsections 6138(a)(1) and (2) of the Code, and then declaring “[i]t is clear
from a plain reading of the statute [that] convicted parole violators are not entitled
to any credit for street-time. Consequently, 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.” Id. On this basis, Counsel
concluded that the Petition “has no basis in law or in fact and is, therefore,
frivolous[,]” as the Board properly elected “not to credit Petitioner with any of the
time spent at liberty on parole.” Id. at 3-4.
      Counsel also sent a letter to Petitioner, informing him that Counsel had found
the Petition to be without merit, explaining the reasons for this determination and
directing Petitioner to retain another attorney or file a pro se brief with our Court, in
the event that Petitioner disagreed with Counsel’s conclusion. Amended
Application, Ex. A at 1-3.
      Before addressing the validity of Petitioner’s substantive arguments, we must
assess the adequacy of Counsel’s Amended Application and revised no-merit letter.
Since Petitioner, throughout this process, has only sought to challenge the Board’s
calculation of his maximum parole violation expiration date, Counsel appropriately
elected to file a no-merit letter. See Seilhamer v. Pa. Bd. of Prob. & Parole, 996




                                            7
A.2d 40, 43 n.4 (Pa. Cmwlth. 2010).6 “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 counsel’s request for leave to withdraw, without delving into the substance of
the underlying petition for review, and may direct counsel to file either an amended
request for leave to withdraw or a brief on behalf of his client. Id.
       As with his first attempt, we find Counsel’s revised no-merit letter deficient
for several reasons: First, nothing in this revised no-merit letter addresses the fact
that, as it currently stands, Counsel has not addressed any of Petitioner’s potentially

       6
                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.


                                                 8
reviewable issues that were originally presented to the Board and, instead,
inexplicably raised an unreviewable challenge in the Petition submitted to this Court
on behalf of his client. See Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878
(Pa. Cmwlth. 2012) (citations omitted).7 Second, contrary to Counsel’s assertion, we
did not “narrow[ ] the scope of Petitioner’s arguments” by expressing in Phoenix I
that “the overarching theme, or general thrust, of Petitioner’s request for
administrative relief was that the Board improperly extended Petitioner’s maximum
[parole violation] date.” Amended Application, Ex. B at 2. This statement was part
of our explanation for why Counsel could elect to file a no-merit letter, rather than a
mechanism by which Counsel could evade his responsibility to properly address
each of the issues Petitioner raised before the Board. Finally, Counsel’s legal
analysis in his Amended Application is fundamentally flawed, as his declaration that
“[i]t is clear from a plain reading of [61 Pa. C.S. §6138(a) that] convicted parole
violators are not entitled to any credit for street-time [i.e., time at liberty on parole]”
is inaccurate. See 61 Pa. C.S. §6138(a)(2.1); Pittman v. Pa. Bd. of Prob. & Parole,
159 A.3d 466, 473 (Pa. 2017).8
       Therefore, we deny Counsel’s Amended Application. In addition, we direct
Counsel to file a Second Amended Application and revised no-merit letter, or a
substantive brief in support of the Petition, within 30 days. Regardless of which

       7
              The law is well settled that issues not raised before the Board either
              at the revocation hearing or in the petitioner’s administrative appeal
              are waived and cannot be considered for the first time on appeal. . .
              . The law is equally well settled that issues not raised in a petition
              for review are waived and will not be addressed by this Court.
Chesson, 47 A.3d at 878.

       8
          “Subsection 6138(a)(2.1) [of the Code] clearly and unambiguously grants the Board
discretion to award credit to a [convicted parole violator] recommitted to serve the remainder of
his sentence, except when the [convicted parole violator] is recommitted for the reasons stated in
Subsections 6138(a)(2.1)(i) and (ii) [of the Code].” Pittman, 159 A.3d at 473.

                                                9
option Counsel chooses, he must address and analyze each of the bases upon which
Petitioner challenged, via his April 1, 2016 request for administrative relief, the
Board’s imposition of backtime and extension of his maximum parole violation date.
As stated earlier, these bases were: (1) Conflicts between subsections 6138(a)(2) and
(a)(5) of the Code, 61 Pa. C.S. § 6138(a)(2) and (a)(5), which articulate some of the
Board’s powers; (2) The lack of a statutory definition for the phrase “at liberty on
parole,” which is used in 61 Pa. C.S. §6138(a)(2); (3) Violation of the separation of
powers; and (4) Due process violations relating to the Board’s February 29, 2016
recalculation of the maximum expiration dates for his 2010 and 2013 sentences.




                                       __________________________________
                                       ELLEN CEISLER, Judge




                                         10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lateef Phoenix,                        :
                   Petitioner          :
                                       :
      v.                               : No. 1243 C.D. 2017
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                 Respondent            :


                                     ORDER

      AND NOW, this 10th day of August, 2018, the Amended Application for
Leave to Withdraw Appearance, filed by Nicholas E. Newfield, Esquire (Counsel),
is hereby DENIED. It is FURTHER ORDERED that Counsel shall file a Second
Amended Application and a revised no-merit letter, or a substantive brief in support
of the Petition for Review, within 30 days of the date of this order.
      Jurisdiction retained.



                                       ________________________________
                                       ELLEN CEISLER, Judge
