              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Allen Wilson,                    :
                  Petitioner             :
                                         :   No. 2049 C.D. 2015
            v.                           :
                                         :   Submitted: May 27, 2016
Pennsylvania Board of                    :
Probation and Parole,                    :
                  Respondent             :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                       FILED: January 13, 2017



            Presently before this court is the application of Linda S. Hollinger,
Esquire (Counsel) of the Cumberland County Public Defender’s Office for leave to
withdraw as counsel on behalf of Michael Allen Wilson (Wilson). Counsel seeks
leave to withdraw on the grounds that Wilson’s petition for review is without merit.
            On August 19, 2011, Wilson was arrested and charged with aggravated
assault with serious bodily injury and firearm not to be carried without a license. On
March 14, 2012, Wilson was sentenced to a term of incarceration of 2 to 4 years on
the firearm charge, and a concurrent sentence of 1 to 2 years on the aggravated
assault charge. Wilson’s minimum sentence date was August 19, 2013, and his
original maximum sentence date was August 19, 2015. (Supplemental Reproduced
Record (S.R.R.) at 1-3.)
             On April 17, 2014, Wilson was released on parole. The conditions
governing his parole, which Wilson acknowledged with his signature on that date,
specifically advised him that if he was convicted of a crime while on parole, the
Board had the authority to recommit him to serve the balance of his sentence, with no
credit for time spent at liberty on parole. (S.R.R. at 6-13.)
             On September 30, 2014, Wilson was arrested by the York City Police
Department for the offense of Manufacture, Delivery or Possession with Intent to
Manufacture or Deliver a Controlled Substance. On April 14, 2015, Wilson pled
guilty to the charge and was sentenced to 11 and a half to 23 months in the York
County Prison. (S.R.R. 14-25.)
             On April 22, 2015, Wilson waived his right to counsel and a revocation
hearing and admitted to the new conviction. By decision mailed July 10, 2015, the
Board recommitted Wilson as a convicted parole violator (CPV) to serve his
unexpired term, when available, pending completion of his York County sentence.
(S.R.R. at 26-37.)
             On August 10, 2015, Wilson filed an administrative appeal, arguing that
a single violation of his parole should not have resulted in him being committed for
the balance of his unexpired term. (S.R.R. at 38-40.)
             By letter mailed September 14, 2015, the Board denied Wilson’s
petition. The Board explained that, pursuant to 37 Pa. Code § 73.1(a), an appeal must
“present with accuracy, brevity, clearness and specificity whatever is essential to a
ready and adequate understanding of the factual and legal points requiring
consideration.” (S.R.R. at 41.) The Board stated that Wilson’s appeal did not



                                            2
indicate that “the Board made any specific evidentiary, procedural, or calculation
errors in revoking [Wilson’s] parole” and dismissed the appeal for failing to present
adequate factual and legal considerations. (S.R.R. at 41.) The Board found that
Wilson’s admission constituted sufficient evidence to recommit him as a CPV. The
Board further explained that the presumptive recommitment range for a conviction of
Possession with Intent to Deliver is 18-24 months and that, since the recommitment
imposed of 1 year, 4 months, and 2 days is less than the standard presumptive
recommitment range, it is not subject to challenge. Smith v. Pennsylvania Board of
Probation and Parole, 574 A.2d 558 (Pa. 1990).
            On October 14, 2015, Counsel entered her appearance and filed a
petition for review alleging that the Board’s denial of Wilson’s administrative appeal
was erroneous. Counsel argued that the Board incorrectly calculated Wilson’s credit
and his recommitment period of 1 year, 4 months, and 2 days. On January 12, 2016,
after further review in preparation of an appellate brief, Counsel filed an application
for leave to withdraw and a no-merit “Turner” letter, detailing the reasons why she
determined that Wilson’s appeal lacked merit. Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988). Counsel forwarded copies of this letter to Wilson and the Board.
            In order to withdraw, Counsel must satisfy the procedural requirements
set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758,
760-61 (Pa. Cmwlth. 1985). Under Craig, counsel must notify the parolee of his
request to withdraw, furnish the parolee with either a copy of a brief complying with
Anders v. State of California, 386 U.S. 738 (1967), or a no-merit letter satisfying the
requirements of Turner, and inform the parolee of his right to retain new counsel or
submit a brief on his own behalf.




                                          3
            If counsel proceeds under Turner, the letter must substantively contain:
(1) the nature and extent of counsel’s review; (2) the issues the parolee wishes to
raise; and (3) counsel’s analysis in concluding the parolee’s appeal is without merit.
Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25 (Pa.
Cmwlth. 2009); Zerby v. Shannon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). We
require counsel to comply with these requirements to ensure that a parolee’s claims
are considered and that counsel has substantial reasons for concluding the claims are
without merit. Zerby, 964 A.2d at 962.
            In the present case, by letter to this Court dated December 22, 2015,
Counsel stated that she reviewed the record, addresses the claims raised by Wilson in
his petition for review, and set forth an analysis of the claims and her reasons for
concluding that they lacked support in either law or fact. Counsel subsequently filed
an application to withdraw on January 12, 2016, and served copies of the application
on Wilson and the Board. By order dated January 13, 2016, we advised Petitioner
that he may obtain substitute counsel or file a brief on his own behalf and directed
Counsel to serve a copy of the order upon Petitioner and file a certificate of service
reflecting the same within 14 days. Counsel complied and filed a certificate of
service with this Court on January 26, 2016. Thus, Counsel has complied with the
procedural requirements of Craig.
            Turning our attention to the merits, Petitioner reiterates his argument to
the Board that he was incorrectly recommitted to serve the remainder of his
unexpired term. We disagree. Petitioner pled guilty to a new criminal offense of
Manufacture, Delivery or Possession with Intent to Manufacture or Deliver a
Controlled Substance on April 14, 2015. He received credit toward his new sentence
for the time he was incarcerated prior to this conviction. Following his guilty plea,



                                          4
the Board provided Petitioner with a notice of charges and hearing.                   However,
Petitioner waived his right to counsel and a revocation hearing and admitted to the
new conviction.        The Board subsequently recommitted Petitioner as a convicted
parole violator to serve the balance of his unexpired term, which totaled 16 months
and 2 days. Section 75.2 of the Board’s regulations provide for a presumptive
recommitment range for Petitioner’s new conviction of 18 to 24 months. 37 Pa.Code
§75.2.1 Because the recommitment period imposed by the Board was less than the
standard presumptive recommitment range, it is not subject to challenge. Smith v.
Pennsylvania Board of Probation and Parole, 574 A.2d 558, 560 (Pa. 1990) (“As
long as the period of recommitment is within the presumptive range for the violation,
the Commonwealth Court will not entertain challenges to the propriety of the term of
recommitment.”)
              Accordingly, we grant Counsel’s application to withdraw and affirm the
Board’s order denying administrative relief to Petitioner.




                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge




       1
          Petitioner’s new offense constituted a felony subject to a maximum term of incarceration
of 10 years under sections 13(a)(30) and 13(f)(1.1) of The Controlled Substance, Drug, Device and
Cosmetic Act, 35 P.S. §§780-113(a)(30), (f)(1.1). Section 75.2 of the Board’s regulations provide
for a presumptive recommitment range of 18 to 24 months for this type of drug law violation.



                                                5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Allen Wilson,                   :
                  Petitioner            :
                                        :    No. 2049 C.D. 2015
            v.                          :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :
                  Respondent            :


                                    ORDER


            AND NOW, this 13th day of January, 2017, the application for leave
to withdraw as counsel filed by Linda S. Hollinger, Esquire, is granted. The order
of the Pennsylvania Board of Probation and Parole, dated September 14, 2015, is
hereby affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
