           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aaron Smith,                             :
                         Petitioner      :
                                         :
             v.                          :   No. 1703 C.D. 2015
                                         :   Submitted: February 10, 2017
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: May 24, 2017

             Petitioner Aaron Smith (Smith) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board). The Board denied Smith’s
request for administrative relief (administrative appeal) from the Board’s
June 18, 2015 order, which recommitted Smith to serve 18 months backtime for
new criminal convictions. Smith’s appointed counsel, James L. Best, Esquire
(Counsel), however, filed a motion to withdraw as counsel. Counsel asserts, as
expressed in his “no merit” letter, that the issues Smith raises in his petition for
review are without merit. We grant Counsel’s motion to withdraw and affirm the
Board’s order.
             We summarized the factual background relevant to the instant appeal
in our prior decision:
             Smith had been incarcerated at a State Correctional
             Institution when he was released on parole on
             December 18, 2012. (Certified Record (C.R.) at 31.) On
             December 27, 2013, Smith was arrested and charged with
             Possession with Intent to Deliver (a felony) and
             Intentional Possession of a Controlled Substance by
             Person Not Registered (a misdemeanor). (C.R. 32-39.)
             Smith was convicted of those same charges on
             December 15, 2014, and was sentenced to a term
             of 1 year and 6 months to 3 years on April 30, 2015.
             (C.R. 51-63.)     The Board conducted a hearing on
             April 9, 2015, and determined that Smith was a convicted
             parole violator. (C.R. 68-75.) By decision mailed
             June 18, 2015, the Board forfeited Smith’s street time
             and recommitted him as a convicted parole violator to
             serve 18 months backtime. (C.R. 95.) By that same
             order, the Board recalculated Smith’s maximum sentence
             date from December 18, 2015, to February 17, 2017,
             reflecting the 1,095 days remaining on Smith’s sentence
             when he was paroled minus the 436 days of credit for the
             period he was incarcerated from February 18, 2014, to
             April 30, 2015, while awaiting sentencing on his new
             charges. (C.R. 93.)
Smith v. Pa. Bd. of Prob. and Parole (Pa. Cmwlth., No 1703 C.D. 2014, filed
September 16, 2016) (Brobson, J.) (Smith I), slip op. at 1-2.
             Smith filed an administrative appeal, challenging the Board’s
forfeiture of the time he was at liberty while on parole—i.e., his “street time.”
Smith objected to the Board’s recalculation of his maximum sentence date and
argued that the Board’s forfeiture of his street time was unconstitutional because
the Board does not have the power to alter a judicially imposed sentence. The
Board rejected Smith’s administrative appeal, reasoning that Smith forfeited his
street time under Section 6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa.
C.S. § 6138(a)(2).
             Previously, Counsel filed a motion for leave to withdraw, which we
denied. Smith I, slip op. at 5. Nevertheless, we provided him with an opportunity
to submit an amended motion after supplying his client with an amended no-merit

                                          2
letter. We explained that in order for Counsel to comply with the requirements set
forth in Zerby v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009), Counsel must fully
discuss the issues raised by Smith and why the applicable law does not provide
relief. Id., slip op. at 5. In the original no-merit letter, Counsel did not address
Petitioner’s assertion that he was so confined during his time on parole that he was
not truly at liberty. We now address the sufficiency of the amended no-merit letter
and assess the merits of Smith’s appeal.
               In seeking to withdraw, this Court has consistently required an
attorney to include the following descriptive information in a no-merit letter:
(1) the nature and extent of counsel’s review of the case; (2) the issues the parolee
wants to raise; and (3) the analysis counsel used in reaching his conclusion that the
issues are meritless.1 Zerby, 964 A.2d at 956. Consequently, before considering
whether the matter has no merit and proceeding to make an independent review of
the merits of the case, we must first evaluate Counsel’s no-merit letter to determine
whether it complies with the requirements for withdrawal applications. Counsel’s
no merit letter includes a fair summary of Smith’s conviction and parole history,
thus reflecting an adequate review of the record. Counsel has also sufficiently
summarized the issues Smith has raised in his petition for review and provided
some legal analysis of the reasons why the issues have no merit. We, therefore,

       1
          As we discussed in Smith I, Counsel’s original no-merit letter complied with the
procedural requirements set forth in Reavis v. Pennsylvania Board of Probation and
Parole, 909 A.2d 28 (Pa. Cmwlth. 2006), and Counsel’s amended no-merit letter complies with
Reavis for the reasons set forth in Smith I. See Smith I, slip op. at 5. Those requirements
include: (1) notifying the parolee that he has submitted to the Court a request to withdraw;
(2) providing the parolee with a copy of counsel’s no merit letter; and (3) advising the parolee
that he has the right to obtain new counsel and to submit to the Court a brief of his own, raising
any arguments that he may believe are meritorious. Reavis, 909 A.2d at 33.



                                                3
will proceed to consider the question of whether counsel is correct in asserting that
the issues Smith has raised are without merit.
               On appeal,2 Smith again contests the Board’s determination that Smith
forfeited his street time and extended his maximum sentence date. Smith argues
that the decision by the Board altered a judicially imposed sentence and intruded
on the authority of the judicial branch. Smith also argues that the imposition
of 18 months backtime is excessive because the new conviction he received after
his December 18, 2012 release on parole falls within the presumptive range of
recommitment of 6 to 12 months, rather than 18 months. He additionally argues
that he was confined while on parole because he was confined to his home and
subjected to searches by his parole “agent.” Finally, Smith asks this Court to
change his maximum sentence date back to December 18, 2015, and award him
money damages.
               We agree with Counsel that Smith’s claims have no merit.                     It is
well-settled that while the Board is not permitted to alter a judicially imposed
sentence, it may require that a parolee serve the remaining balance of his unexpired
term.       Savage v. Pa. Bd. of Prob. and Parole, 761 A.2d 643, 645 (Pa.
Cmwlth. 2000), as amended (Mar. 12, 2001). Here, rather than extend a judicially
imposed sentence, the Board merely determined that Smith owed 18 months of
backtime. Backtime is defined as: “The unserved part of a prison sentence which

        2
          Our review is limited to determining whether the Board’s findings are supported by
substantial evidence, are in accordance with the law, and whether constitutional rights have been
violated. Krantz v. Pa. Bd. of Prob. and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth. 1984). This
Court will only interfere with the Board’s exercise of administrative discretion where it has been
abused or exercised in an arbitrary or capricious manner.” Green v. Pa. Bd. of Prob. and Parole,
664 A.2d 677, 679 (Pa. Cmwlth. 1995), appeal denied, 674 A.2d 1077 (Pa. 1996).



                                                4
a convict would have been compelled to serve if the convict had not been paroled.”
37 Pa. Code § 61.1. Statutory presumptive recommitment ranges provide the
Board with guidelines for determining the amount of backtime to impose. Here,
the 18 months that the Board imposed—for the Possession with Intent to Deliver, a
drug felony that is punishable for up to ten years—is within and is even on the low
end of the presumptive range. Both this Court and our Supreme Court have ruled
that where the amount of backtime does not exceed the presumptive range, courts
will not review the Board’s imposition of backtime. Smith v. Pa. Bd. of Prob. &
Parole, 574 A.2d 558, 560 (Pa. 1990); Lotz v. Pa. Bd. of Prob. & Parole,
548 A.2d 1295, 1296 (Pa. Cmwlth. 1988), aff’d, 583 A.2d 427 (Pa. 1990). We
likewise decline to review the Board’s imposition here.
              Smith’s argument that he was not truly at liberty while on parole
because he was subjected to searches and confined to his home likewise lacks
merit. Section 6138(a)(2) of the Code, provides, in pertinent part:
              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), shall be given no credit for the
              time at liberty on parole.
(Emphasis added.)3 Our Supreme Court has clarified that “at liberty” does not
mean freedom from each and every type of confinement. Cox v. Pa. Bd. of Prob.
& Parole, 493 A.2d 680, 683 (1985). If a parolee is recommitted, he must serve


       3
         Previously the “Parole Act,” Act of August 6, 1941, P.L. 861, as amended, formerly
61 P.S. §§ 331.1-331.34a, repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147.
The Parole Act has been consolidated and is currently found at Sections 6101 to 6153 of the
Prisons and Parole Code, 61 Pa. C.S. §§ 6101-6153.



                                             5
the remainder of his term of imprisonment he would have had to serve had he not
been paroled and does not receive credit for time spent “at liberty on parole.”
               Here, Smith’s argument that he was not at liberty on parole is
unpersuasive. Being subjected to searches and unsupported allegations of being
confined to his home do not rise to the level of confinement. Section 6153 of the
Code provides that all parolees may have to submit to searches by their parole
agents.4 Smith cites to no authority in support of the proposition that being subject
to searches—something every other parolee also faces under Section 6153—is
sufficiently restrictive so as to be equivalent to incarceration. Moreover, there is
nothing within the “Conditions Governing Parole/Reparole,” which restricted
Smith to confinement within his home. (C.R. 28-30.) Smith’s claim that he was
not at liberty during the time he was out on parole lacks merit.




      4
          Section 6153 of the Parole Code provides:
      (a) General rule.--Agents are in a supervisory relationship with their offenders.
      The purpose of this supervision is to assist the offenders in their rehabilitation and
      reassimilation into the community and to protect the public. Supervision practices
      shall reflect the balance of enforcement of the conditions of parole and case
      management techniques to maximize successful parole completion through
      effective reentry to society.
      (b) Searches and seizures authorized.--
             (1) Agents may search the person and property of offenders in accordance
             with the provisions of this section.
             (2) Nothing in this section shall be construed to permit searches or
             seizures in violation of the Constitution of the United States or section 8 of
             Article I of the Constitution of Pennsylvania.



                                                6
            Accordingly, we will grant Counsel’s motion to withdraw. Moreover,
because we have concluded that Smith’s petition for review lacks merit, we affirm
the order of the Board, denying his administrative appeal.




                                P. KEVIN BROBSON, Judge




                                         7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aaron Smith,                          :
                       Petitioner     :
                                      :
           v.                         :   No. 1703 C.D. 2015
                                      :
Pennsylvania Board of Probation       :
and Parole,                           :
                        Respondent    :



                                    ORDER


           AND NOW, this 24th day of May, 2017, the motion to withdraw as
counsel filed by James L. Best, Esquire, is GRANTED, and the order of the
Pennsylvania Board of Probation and Parole (Board) is AFFIRMED.




                             P. KEVIN BROBSON, Judge
