         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dwayne T. Wright,                     :
                 Petitioner           :
                                      :
            v.                        :   No. 1906 C.D. 2015
                                      :   Submitted: February 10, 2017
Pennsylvania Board of Probation       :
and Parole,                           :
                 Respondent           :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                FILED: April 28, 2017

            Dwayne Wright, an inmate at SCI-Coal Township, petitions for
review of an adjudication of the Pennsylvania Board of Probation and Parole
(Board) denying his administrative appeal. Wright asserts that the Board erred in
calculating his maximum sentence after recommitting him for violating his parole.
Wright’s appointed counsel, James L. Best, Esquire (Counsel), has petitioned for
leave to withdraw his representation.      For the following reasons, we grant
Counsel’s petition and affirm the Board’s order.
            On May 7, 2009, Wright was sentenced to a sentence of three to six
years on firearm-related offenses. At the time the sentence was imposed, Wright’s
maximum sentence date was November 7, 2012. On June 16, 2011, Wright was
released on parole from SCI-Mahanoy to the Wernersville Community Corrections
Center (Wernersville). Certified Record at 16-18; 23 (C.R. __). According to the
Conditions Governing Parole/Reparole that he signed, Wright agreed to “abstain
from the unlawful possession or sale of narcotics and dangerous drugs and abstain
from the use of controlled substances … without a valid prescription.” C.R. 19.
Wright acknowledged that if he was arrested while on parole, the Board was
authorized “to lodge a detainer against [him] which will prevent [his] release from
custody, pending disposition of those charges, even though [he] may have posted
bail….” Id. Wright was further advised that if he was convicted of a crime
committed while on parole, the Board was authorized, after an appropriate hearing,
to recommit him to serve the balance of the sentence with no credit for time at
liberty on parole.
             Wright resided at Wernersville from June 16, 2011, to July 30, 2011,
when he was discharged to an approved home plan in Lancaster. On August 15,
2012, Wright was arrested for drug-related offenses in Lancaster County. The
Board then issued a warrant to commit and detain Wright for violation of a
condition of parole. Wright posted bail on the new criminal charges, but remained
incarcerated on the Board’s warrant until November 7, 2012, the maximum
sentence date on his firearm offense. On August 27, 2014, Wright pled guilty to
the drug offenses and was sentenced to one to three years of imprisonment to be
served in a state correctional institution. On October 16, 2014, the Board voted to
recommit Wright as a convicted parole violator to serve his unexpired term of 426
days on his firearm offense. The Board recalculated Wright’s maximum sentence
date to be December 16, 2015. Admitting that his conviction on the new criminal
offense violated his parole, Wright waived his right to parole revocation hearings
and assistance of counsel.
             On January 26, 2015, Wright filed an “Administrative Remedies
Form” with the Board that presented (1) an administrative appeal challenging his
recommitment as unconstitutional and (2) a petition for administrative review


                                        2
asserting that the Board failed to award him credit for time spent at Wernersville,
Lancaster County Prison, and SCI-Camp Hill. C.R. 65.
             The Board scheduled an evidentiary hearing to determine whether
Wright was entitled to credit for the period he was at Wernersville.         Wright
testified that he was held in the building at Wernersville during the day; he was
allowed to leave the building for meals and get his social security card; there was a
fence around the back of the building; and a staff member had to press a buzzer to
let him out of the building. Wright testified that he had to abide by the rules at
Wernersville and stay within his sector of the facility. Agents would stop him if he
tried to leave; staff members would chase down residents who tried to cross the
fence.
             A Wernersville staff member testified that the building is not a secure
facility. Residents are not locked in their rooms and are allowed to go outside with
passes. The facility does not have bars on the windows or a perimeter fence. Staff
members are forbidden to chase residents who leave without permission; rather,
they take notes and notify the Board’s 24/7 Unit.
             Following the hearing, the Board rendered a decision, which was
mailed on June 2, 2015, concluding that Wright failed to prove that the restrictions
on his liberty at Wernersville were the equivalent of incarceration. The Board
found that residents could leave the facility of their own free will, without being
physically restrained by the staff. Further, the facility does not have bars on the
windows or a perimeter fence. Based on these findings, the Board denied Wright
credit for his time spent at Wernersville.
             On June 29, 2015, Wright filed another “Administrative Remedies
Form” with the Board challenging his recommitment sentence. Wright argued that


                                             3
the Board erred by not crediting his sentence for the time he spent at Wernersville
and while he was in “good standing” prior to his new charges.                   C.R. 91.
Thereafter, on August 27, 2015, the Secretary of the Board issued a final
determination on Wright’s requests for administrative relief.             The Secretary
explained that the Board recalculated Wright’s maximum sentence based on his
recommitment as a convicted parole violator; the Board had statutory authority to
forfeit all of the time Wright was at liberty on parole; and the recalculation did not
violate any of Wright’s constitutional rights. The Secretary also affirmed the
Board’s finding that Wright was not entitled to credit for the time he spent at
Wernersville and upheld the Board’s recalculation of Wright’s maximum sentence
date. Accordingly, the Secretary affirmed the Board’s decision on June 2, 2015.
Wright now petitions this Court for review.1
             On appeal, Wright raises five issues, which we combine into four for
clarity. First, he argues that the Board unlawfully forfeited the time he was at
liberty on parole, also referred to as “street time,” which, Wright asserts, should be
credited to his original maximum sentence. Second, Wright argues that the Board
lacks statutory authority to change the maximum date of a sentence that was
imposed by a court. By forfeiting the period of time he was at liberty on parole
and extending his term of sentence, the Board violated his constitutional rights and
the doctrine of separation of powers. Third, Wright argues that the Board did not
have authority to detain him after he began serving his new sentence on his drug
offenses. Fourth, Wright argues that the Board erred in not giving him credit for


1
  Our scope of review determines whether the Board erred as a matter of law or violated the
parolee’s constitutional rights or whether the Board’s decision is supported by substantial
evidence. Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n. 3 (Pa.
Cmwlth. 2009).
                                            4
the period of time he resided at Wernersville. Counsel filed a petition to withdraw
as counsel and a no-merit letter, also referred to as a “Turner/Finley letter,”2
explaining his belief that Wright’s appeal lacks merit. Thereafter, this Court issued
an order dated January 14, 2016, advising Wright, inter alia, of his right to obtain
substitute counsel or file a brief on his own behalf, and directing Counsel to serve a
copy of the order on Wright. On January 15, 2016, Counsel filed a certificate of
service on Wright.
              Upon review, this Court concluded that Counsel’s no-merit letter did
not address all of the issues raised by Wright. Wright v. Pennsylvania Board of
Probation and Parole (Pa. Cmwlth., No. 1906 C.D. 2015, filed September 12,
2016) (unreported). We denied Counsel’s petition to withdraw and granted him
leave to amend. Counsel has filed an amended petition to withdraw, which we
now consider.
              We first review the technical requirements imposed upon appointed
counsel who wishes to withdraw his representation.

              Turner/Finley counsel must review the case zealously. Turner/
              Finley counsel must then submit a “no-merit” letter to the trial
              court, or brief on appeal to this Court, detailing the nature and
              extent of counsel’s diligent review of the case, listing the issues
              which the petitioner wants to have reviewed, explaining why
              and how those issues lack merit, and requesting permission to
              withdraw.
              Counsel must also send to the petitioner: (1) a copy of the “no-
              merit” letter/brief; (2) a copy of counsel’s petition to withdraw;

2
  In Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988), the Pennsylvania Supreme Court,
applying Pennsylvania v. Finley, 481 U.S. 551 (1987), 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
and list[s] each issue the petitioner wished to have raised, with counsel’s explanation of why
those issues were meritless.”
                                              5
                 and (3) a statement advising petitioner of the right to proceed
                 pro se or by new counsel.
                 If counsel fails to satisfy the foregoing technical prerequisites
                 of Turner/Finley, the court will not reach the merits of the
                 underlying claims but, rather, will merely deny counsel’s
                 request to withdraw.

Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (quoting Commonwealth
v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)). If counsel’s no-merit letter
complies with the technical requirements, this Court independently reviews the
merits of the petitioner’s claims. Hughes v. Pennsylvania Board of Probation and
Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009).
                 In the matter sub judice, Counsel’s no-merit letter satisfies the
technical requirements of Turner/Finley.                 In his letter, Counsel thoroughly
analyzed Wright’s arguments on appeal and explained why each issue is devoid of
merit. Counsel certified that he mailed a copy of his petition to withdraw and no-
merit letter to Wright at SCI-Coal Township. Further, Counsel served a copy of
this Court’s January 14, 2016, Order on Wright, which advised him that he could
either obtain substitute counsel or file a brief on his own behalf. 3 Thus, we
conclude that Counsel has complied with the technical requirements of
Turner/Finley. We next consider the merits of Wright’s claims.
                 Wright first argues that the Board unlawfully forfeited the time he was
at liberty on parole. Wright asserts that he remained on parole in “good standing”
since June 6, 2011, when he was released on parole, until he was arrested on
August 15, 2012. This period of time in “good standing” should have been
credited to his original maximum sentence. Petition for Review ¶ 8.


3
    On April 18, 2016, Wright filed a brief on his own behalf.
                                                  6
               It is well settled that the Board has the authority to forfeit street time
when a parolee is recommitted as a convicted parole violator. Section 6138(a) of
the Prisons and Parole Code4 (Parole Code) states, in relevant part:

               (a)   Convicted violators. –
                      (1) A parolee … who, during the period of parole
                      or while delinquent on parole, commits a crime
                      punishable by imprisonment, for which the parolee
                      is convicted or found guilty by a judge or jury or to
                      which the parolee pleads guilty or nolo contendere
                      at any time thereafter in a court of record, may at
                      the discretion of the board be recommitted as a
                      parole violator.
                      (2) If the parolee’s recommitment 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),[5] shall be given no credit for the
                      time at liberty on parole.

61 Pa. C.S. §6138(a)(emphasis added). In short, convicted parole violators are not
entitled to credit for their street time. When a parolee is recommitted due to
criminal convictions, his maximum sentence date may be extended to account for
his street time, regardless of whether he is in good standing or delinquent.
Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 599 (Pa.
Cmwlth. 2011).
               Here, Wright was recommitted because of his criminal conviction of
drug-related offenses. As a convicted parole violator, he was not entitled to any

4
 61 Pa. C.S. §§101-6309.
5
  Paragraph (2.1) under Section 6138(a) of the Parole Code provides that the Board may, in its
discretion, award credit to a parolee recommitted under paragraph (2) for the time spent at liberty
on parole unless one of the enumerated exceptions applies. 61 Pa. C.S. §6138(a)(2.1).
                                                7
credit for street time, i.e., the time he spent on parole prior to his arrest on August
15, 2012. In recalculating Wright’s maximum sentence date, the Board forfeited
his street time, a total of 510 days, from June 16, 2011, when he was paroled,
through the date of his detention on August 15, 2012. The Board credited Wright
for 84 days he served on the Board’s warrant, from August 15, 2012, to November
7, 2012, the original maximum sentence date on his firearm offense. Subtracting
the 84 days of credit from the 510 days of street time leaves 426 days as the
unserved term on Wright’s firearm offense. The Board did not err.
             Wright argues, next, that the Board lacks statutory authority to
“change the maximum date of a sentence that was imposed by a court of law.”
Petition for Review ¶ 10. By changing the maximum date of his sentence, Wright
argues, the Board violated his constitutional rights and “encroache[d] on the
Judicial Branch of Government and [its] exclusive jurisdiction provided by the
Separation of Powers doctrine.” Petition for Review ¶ 9. This argument lacks
merit.
             As explained above, Section 6138(a) of the Parole Code grants the
Board authority to recalculate the maximum sentence date of a convicted parole
violator to account for his forfeited street time. 61 Pa. C.S. §6138(a); Richards, 20
A.3d at 599. Our Supreme Court, in Martin v. Pennsylvania Board of Probation
and Parole, 840 A.2d 299, 303 (Pa. 2003) (citations omitted) (emphasis added),
explained the differences between sentences imposed by the judiciary and
backtime compelled by the Board upon parole violators:

             The distinction between sentences imposed by the judiciary
             upon convicted criminal defendants and backtime compelled by
             the Board upon parole violators is significant. A sentence can
             be defined as the judgment formally pronounced by the court
             upon a defendant who has been convicted in a new criminal

                                          8
             prosecution and which imposes the term of punishment to be
             served…. By way of comparison, backtime is “that part of an
             existing judicially-imposed sentence which the Board directs a
             parolee to complete following a finding[,] after a civil
             administrative hearing[,] that the parolee violated the terms and
             conditions of parole,” and before the parolee begins to serve the
             new sentence.

Stated otherwise, “service of backtime relates to the original sentence from which
an offender is paroled and is unrelated to any sentence required for a conviction on
other criminal charges.” Id. The Board’s authority to direct a parolee who is
convicted of a crime committed while on parole to serve the unexpired balance of
his original maximum sentence does not usurp a court’s sentencing function or
constitute a violation of a parolee’s due process rights. Gaito v. Pennsylvania
Board of Probation and Parole, 412 A.2d 568, 570 (Pa. 1980). Further, our
Supreme Court has observed that the Board “is under no constitutional obligation
to diminish the length of the sentence of a recommitted parolee by a period equal
to the time when the prisoner was on parole.” Id. (citing Commonwealth ex rel.
Thomas v. Myers, 215 A.2d 617, 619 (Pa. 1966)). Accordingly, we reject Wright’s
challenge to the Board’s recalculation of his maximum sentence date.
             Wright further argues that the Board did not have authority to detain
him after he began serving his new sentence on his drug offenses. He asserts that
the Board, by detaining him, showed “a deliberate indifference to a parolee’s
liberty interest to only serve a judicial sentence and be discharged from custody …
upon the termination date of that sentence.” Petition for Review ¶ 9. Wright
argues that the Board has no authority to “stop the clock on the newly imposed
sentence by lodging a second detainer to have a then convicted parole violator
serve ‘back time’ for a previous sentence.” Petitioner Brief at 4.
             Section 6138(a)(5) of the Parole Code provides:
                                          9
                (a) Convicted violators.--
                      (5) If a new sentence is imposed on the parolee,
                      the service of the balance of the term originally
                      imposed by a Pennsylvania court shall precede the
                      commencement of the new term imposed in the
                      following cases:
                            (i) If a person is paroled from a
                            State correctional institution and the
                            new sentence imposed on the person
                            is to be served in the State
                            correctional institution.

61 Pa. C.S. §6138(a)(5). After Wright was paroled from SCI-Mahanoy, he was
convicted of a crime he committed while on parole for which he received a new
sentence to be served in another SCI. Section 6138(a)(5) of the Parole Code
required Wright to serve the balance of his original maximum sentence first.
Further, this Court has held that the Board retains jurisdiction to recommit a
parolee convicted of a crime committed while on parole even after the expiration
of an original maximum sentence. Adams v. Pennsylvania Board of Probation and
Parole, 885 A.2d 1121, 1124 (Pa. Cmwlth. 2005). “There is no doubt that the
Board can recommit and recompute the sentence of a parolee who commits a crime
while on parole but is not convicted until after his original sentence expired.” Id.
For these reasons, Wright’s argument lacks merit.
                Finally, Wright argues that the Board erred in determining that he was
not entitled to credit for the period of time he resided at Wernersville. According
to Wright, he was subject to “sufficient restraints” at Wernersville to constitute
“custody,” thereby entitling him to credit for the time he spent there. Petitioner
Brief at 5-6.



                                             10
             Section 6138(a)(2) of the Parole Code provides that a parolee who is
recommitted as a convicted parole violator “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 ... shall be given no credit for the time at liberty on
parole.” 61 Pa. C.S. §6138(a)(2). The Parole Code does not define the term “at
liberty on parole.” However, our Supreme Court has held that “at liberty” does not
mean freedom from all types of confinement. Cox v. Pennsylvania Board of
Probation and Parole, 493 A.2d 680, 683 (Pa. 1985). A convicted parole violator
who seeks credit on his original sentence for time spent in a halfway house or
community corrections center bears the burden of proving that the restrictions on
his liberty were the equivalent of incarceration. Medina v. Pennsylvania Board of
Probation and Parole, 120 A.3d 1116, 1119 (Pa. Cmwlth. 2015).               The most
important factors in determining whether a program is sufficiently restrictive so as
to be equivalent to incarceration are (1) whether the resident is locked in; and (2)
whether the resident may leave without being physically restrained. Id. at 1120-21
(quotation omitted).
             Here, the Board conducted an evidentiary hearing on the restrictions
placed on residents at Wernersville. The Board found that residents can leave the
facility on their own free will, as acknowledged by Wright. The Board also found
the facility does not have bars on the windows or a perimeter fence. These
findings support the Board’s determination that Wright failed to meet his burden of
proving that Wernersville was as restrictive as a prison. Accordingly, the Board
did not abuse its discretion when it denied Wright credit on his original sentence
for the period of time he resided at Wernersville.



                                          11
            In sum, Counsel has fulfilled the technical requirements for
withdrawing his representation, and our independent review of the record before
the Board reveals that Wright’s issues on appeal are without merit. Accordingly,
we grant Counsel’s application for leave to withdraw and affirm the Board’s
decision.

                                 _____________________________________
                                 MARY HANNAH LEAVITT, President Judge




                                      12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dwayne T. Wright,                   :
                 Petitioner         :
                                    :
            v.                      :   No. 1906 C.D. 2015
                                    :
Pennsylvania Board of Probation     :
and Parole,                         :
                 Respondent         :


                                  ORDER

            AND NOW, this 28th day of April, 2017, the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter, dated
August 27, 2015, is AFFIRMED, and the application for leave to withdraw as
counsel filed by James L. Best, Esquire, is GRANTED.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
