              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester M. Kasianczuk,                   :
                         Petitioner      :
                                         :
                   v.                    :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 1167 C.D. 2018
                         Respondent      :   Submitted: January 18, 2019

BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: March 1, 2019

            Chester M. Kasianczuk (Kasianczuk) petitions this Court for review of
the Pennsylvania Board of Probation and Parole’s (Board) July 27, 2018 order
denying his request for administrative relief. Kasianczuk is represented in this matter
by Centre County Public Defender David Crowley, Esquire (Counsel), who has filed
an Application to Withdraw Appearance (Application) and submitted a no-merit letter
in support thereof. After review, we grant Counsel’s Application and affirm the
Board’s order.
            Kasianczuk is an inmate at the State Correctional Institution (SCI) at
Benner Township. On September 8, 2013, Kasianczuk was paroled from his 2-year
8-month to 6½-year sentence for arson and sale of firearms (Original Sentence). See
Certified Record (C.R.) at 7. Kasianczuk’s Original Sentence maximum release date
was July 7, 2017. Thus, he had 1,398 days remaining on his Original Sentence.
Kasianczuk agreed to conditions governing his parole, including: “If you violate a
condition of your parole/reparole and, after the appropriate hearing(s), the Board
decides that you are in violation of a condition of your parole/reparole you may be
recommitted to prison for such time as may be specified by the Board.” C.R. at 8.
Kasianczuk did not object to the above-quoted parole condition.
              On October 2, 2014, the Board detained Kasianczuk for technical parole
violations related to heroin use and sent him to SCI-Pittsburgh for detoxification. On
October 7, 2014, Kasianczuk admitted his violation and waived his rights to a
revocation hearing and counsel. See C.R. at 17-18. On October 24, 2014, the second
panel member voted to accept Kasianczuk’s hearing waiver and recommit
Kasianczuk as a technical parole violator (TPV) to serve 6 months of backtime.1 See
C.R. at 22, 26. By decision recorded October 29, 2014 (mailed November 6, 2014),
the Board formally recommitted Kasianczuk as a TPV to serve 6 months, stating that
he would be automatically reparoled on April 2, 2015. On December 12, 2014,
Kasianczuk was transferred to Lawrence County Prison to serve his backtime.
Kasianczuk was reparoled on April 2, 2015, subject to similar conditions as before.
C.R. at 33.
              On September 17, 2015, the Board detained Kasianczuk for technical
parole violations related to drug use and sent him to Beaver County Prison for
detoxification. On September 18, 2015, Kasianczuk admitted his violations and
waived his rights to a revocation hearing and counsel. See C.R. at 42. On October 6,
2015, the second panel member voted to accept Kasianczuk’s hearing waiver and
recommit Kasianczuk as a TPV to serve 6 months of backtime. See C.R. at 46, 50.
By decision recorded October 7, 2015 (mailed November 13, 2015), the Board
formally recommitted Kasianczuk as a TPV to serve 6 months at a community
corrections center (CCC). Kasianczuk was automatically reparoled on December 1,



       Section 6113(b) of the Prisons and Parole Code states, in relevant part: “The [B]oard may
       1

make decisions on . . . revocation in panels of two persons. A panel shall consist of one [B]oard
member and one hearing examiner or of two [B]oard members.” 61 Pa.C.S. § 6113(b).


                                               2
2015.   At that time, Kasianczuk agreed to conditions governing his reparole,
including:

              If you are arrested on new criminal charges, the Board has
              the authority to lodge a detainer against you which will
              prevent your release from custody, pending disposition of
              those charges, even though you may have posted bail or
              been released on your own recognizance from those
              charges.

              ....

              If you are convicted of a crime committed while on
              parole/reparole, the Board has the authority, after an
              appropriate hearing, to recommit you to serve the balance of
              the sentence or sentences which you were serving when
              paroled/reparoled, with no credit for time at liberty on
              parole.

C.R. at 60. Kasianczuk did not object to the above-quoted parole conditions.
              On March 12, 2016, Kasianczuk was arrested and charged with
numerous crimes including: 2 counts of aggravated assault, 2 counts of simple
assault, 2 counts of recklessly endangering another person, 3 counts of criminal
mischief, and 1 count each of eluding police officers, driving with a
revoked/suspended license, exceeding the speed limit, careless driving, reckless
driving, and possession of a controlled substance (New Charges). See C.R. at 80-81.
Bail was set at $50,000.00. Because Kasianczuk did not post bail on the New
Charges, he was detained at the Washington County Prison. See C.R. at 78.
              On March 13, 2016, the Board lodged a detainer to commit and detain
Kasianczuk.     On May 19, 2016, the Board issued its formal decision to detain
Kasianczuk pending disposition of the New Charges and, on December 3, 2016, the
Board voted to continue to detain him pending disposition of the New Charges. See




                                           3
C.R. at 83-85. On January 9, 2017, Kasianczuk pleaded guilty to the New Charges,2
and was sentenced to 2½ to 5 years of state incarceration, plus probation, fines and
restitution. See C.R. at 94-95. On February 23, 2017, Kasianczuk waived his rights
to a revocation hearing and counsel.
              On March 16, 2017, the second panel member voted to accept
Kasianczuk’s hearing waiver, recommit Kasianczuk as a convicted parole violator
(CPV), and deny him credit for time spent at liberty on parole.3 See C.R. at 110. On
March 16, 2017, Kasianczuk was placed at SCI-Benner Township. By decision
recorded May 5, 2017 (mailed May 12, 2017), the Board formally recommitted
Kasianczuk as a CPV to serve his unexpired term of 3 years, 1 month and 15 days
(i.e., 1,141 days). See C.R. at 124. The Board recalculated Kasianczuk’s Original
Sentence maximum release date to April 30, 2020. See C.R. at 124-126.
              On May 22, 2017, Kasianczuk submitted an Administrative Remedies
Form challenging the Board’s May 5, 2017 decision (mailed May 12, 2017) formally
recommitting him as a CPV, claiming that he was incarcerated for most of the three
years he had remaining on his Original Sentence and “[a]ny time incarcerated should
apply to [his] sentence.” C.R. at 128. He further argued that he is “being sentence[d]
[sic] double jeopardy[,]” because he is serving that time twice. See C.R. at 128. On
July 27, 2018, the Board denied Kasianczuk’s request for administrative relief.
Kasianczuk, through Counsel, timely appealed to this Court.4

       2
          Kasianczuk specifically pled guilty to 1 count of aggravated assault, eluding officers, 2
counts of reckless endangerment, driving with a revoked/suspended license and excessive speed
charges. See C.R. at 89, 94-95. The remaining charges were either nolle prossed or dismissed. See
C.R. at 89, 94-95.
        3
          The Board’s stated reasons for denying credit for time spent at liberty on parole were: he
had two previous parole failures, he was not amenable to parole supervision, he failed to comply
with sanctions, he was convicted of new charges, and he is considered a threat to the community.
See C.R. at 105-106, 110, 124.
        4
          “Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
                                                 4
             On November 13, 2018, Counsel filed the Application and a no-merit
letter. On that same day, this Court ordered Counsel’s Application to be considered
along with the merits of Kasianczuk’s appeal.
             This Court has held that in order to withdraw, “counsel . . . must provide
a ‘no-merit’ letter which details ‘the nature and extent of [counsel’s] review and
list[s] each issue the petitioner wished to have raised, with counsel’s explanation of
why those issues are meritless.’” Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth.
2009) (quoting Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988)). “[C]ounsel
must fully comply with the procedures outlined in Turner to ensure that each of the
petitioner’s claims has been considered and that counsel has [] substantive reason[s]
for concluding that those claims are meritless.” Hont v. Pa. Bd. of Prob. & Parole,
680 A.2d 47, 48 (Pa. Cmwlth. 1996). Counsel is also required to “notify the parolee
of his request to withdraw, furnish the parolee with [] a copy of . . . [the] 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.” Reavis v. Pa. Bd. of Prob. &
Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006). This Court must then “conduct its own
independent review of the petition to withdraw and must concur in counsel’s
assessment before [it] may grant counsel leave to withdraw.” Hont, 680 A.2d at 48.
             In reviewing Counsel’s no-merit letter herein, this Court notes that the
letter contains the procedural history of Kasianczuk’s case, as well as Counsel’s
review of the record and relevant statutes and case law. Counsel served Kasianczuk
with a copy of the no-merit letter and his Application, and notified Kasianczuk that
he may either obtain substitute counsel or file a brief on his own behalf.5 Counsel
represented therein that Kasianczuk’s chief challenge is that the Board denied him


law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
       5
         Kasianczuk did not obtain substitute counsel or file a brief.
                                             5
credit for time that he was incarcerated at SCI-Pittsburgh, the Lawrence County
Prison and the SCI-Green CCC, and when he was detained in Washington County
Prison pending disposition of the New Charges.                  Counsel also explained that
Kasianczuk “further believes that by not recognizing that he has this credit against his
[O]riginal [S]entence[,] the Board [] violat[ed] his double jeopardy protections by
making him serve this portion of [his] sentence again.”6 Counsel No-Merit Letter at
3.
              In his no-merit letter to this Court, Counsel provides sufficient reasons
why Kasianczuk’s issues are without merit. Accordingly, this Court concludes that
Counsel complied with Turner’s technical requirements and will now independently
review the merits of Kasianczuk’s appeal to determine whether to grant or deny
Counsel’s Application. See Counsel No-Merit Letter at 3-4.
              This Court recognizes that Section 6138(a)(4) of the Prisons and Parole
Code (Parole Code) provides: “The period of time for which the parole violator is
required to serve shall be computed from and begin on the date that the parole
violator is taken into custody to be returned to the institution as a parole violator[,]”
61 Pa.C.S. § 6138(a)(4), and “[CPVs] must serve the backtime on their original state
sentence before they can begin to serve time on their newly-imposed state sentence
under Section 6138(a) of the [Parole] Code.” Wilson v. Pa. Bd. of Prob. & Parole,
124 A.3d 767, 769 (Pa. Cmwlth. 2015).
              However, “[t]he general rule governing the allocation of credit for time
served awaiting disposition of new criminal charge was established by our Supreme
Court in Gaito v. Pennsylvania Board of Probation [&] Parole, . . . 412 A.2d 568

       6
          The Fifth Amendment to the United States Constitution states: “No person shall . . . be
subject for the same offen[s]e to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V.
“The double jeopardy protection of the Fifth Amendment has been made applicable to the [s]tates
through the Due Process Clause of the Fourteenth Amendment.” Rivenbark v. Pa. Bd. of Prob. &
Parole, 501 A.2d 1110, 1112 n.3 (Pa. 1985).
                                                 6
([Pa.] 1980).”7 Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 352 (Pa.
Cmwlth. 2007). Pursuant to Gaito, “this Court consistently held that once a parolee
is sentenced on a new criminal offense, the period of time between arrest and
sentencing, when bail is not satisfied [on the new criminal charge], must be applied
toward the new sentence, and not to the original sentence.”8 Armbruster, 919 A.2d at
352. The Supreme Court recently ruled that “Gaito remains the general law in this
Commonwealth respecting how credit should be allocated for a [CPV] who receives a
new sentence of incarceration[.]”9 Smith v. Pa. Bd. of Prob. & Parole, 171 A.3d 759,
768-69 (Pa. 2017). Accordingly, the Board does not have flexibility to determine the
sentence to which credit should be applied.



       7
         The Parole Code was consolidated and became effective on October 13, 2009. Gaito was
based upon Section 21.1 of what was commonly known as the Parole Act, Act of August 6, 1941,
P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, formerly 61
P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Section 21.1(a) of the Parole
Act similarly stated:

               Any parolee under the jurisdiction of the [Board] released from any
               penal institution of the Commonwealth who, during the period of
               parole or while delinquent on parole, commits any crime punishable
               by imprisonment, for which . . . he pleads guilty . . . in a court of
               record, may, at the discretion of the [B]oard, be recommitted as a
               parole violator. If his recommitment is so ordered, he shall be
               reentered to serve the remainder of the term which said parolee would
               have been compelled to serve had he not been paroled, and he shall be
               given no credit for the time at liberty on parole . . . .
61 P.S. § 331.21a(a) (repealed).
        8
          If the parolee met bail requirements for the new charges and was thus detained solely on
the Board’s detainer, time in custody is to be credited against the original sentence. Smith v. Pa. Bd.
of Prob. & Parole, 133 A.3d 820 (Pa. Cmwlth. 2016) (Smith I), rev’d on other grounds, 171 A.3d
759 (Pa. 2017) (Smith II); see also Gaito.
        9
          The sole exception to Gaito’s general rule, set forth in Martin v. Pennsylvania Board of
Probation & Parole, 840 A.2d 299 (Pa. 2003), allows pre-sentence credit to be applied to the
original sentence “when [an] offender is incarcerated both on [a] Board detainer and for new
charges and receives [a] new sentence of imprisonment that is shorter than [the] term of pre-
sentence incarceration[.]” Smith II, 171 A.3d at 761 n.6.
                                                  7
            Moreover,

            a parole violator’s new maximum date is calculated from
            the date on which the Board obtained the second signature
            needed to recommit him as a CPV. Wilson (citing
            Campbell v. Pa. Bd. of Prob. & Parole, . . . 409 A.2d 980
            ([Pa. Cmwlth.] 1980)). Here, the Board’s hearing report
            indicates the hearing examiner obtained a second signature
            for [Kasianczuk’s] recommitment on [March 16, 2017].
            C.R. at [110]. As such, [Kasianczuk’s] new maximum
            expiry must be calculated from that date.          Wilson;
            Campbell.

Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016).
            Here, the Board’s Order to Recommit reflects that Kasianczuk forfeited
557 days of his prior parole period. See C.R. at 126. The 557 days was the sum of
the 389 days Kasianczuk was at liberty on parole from September 8, 2013 (when
Kasianczuk was paroled from his Original Sentence) to October 2, 2014 (when the
Board detained Kasianczuk for his first technical parole violations) and the 168 days
Kasianczuk was at liberty on parole from April 2, 2015 (when Kasianczuk was
reparoled from his first recommitment) to September 17, 2015 (when the Board
detained Kasianczuk for his second technical parole violations). See C.R. at 126.
            The Board’s Order to Recommit does not reflect that Kasianczuk
forfeited (and, thus, his Original Sentence was credited) the 6 months he was
incarcerated at SCI-Pittsburgh, then Lawrence County Prison, between October 2,
2014 and his April 2, 2015 reparole, or the 2½ months he spent at Beaver County
Prison, then SCI-Greene CCC, from September 17, 2015, until his reparole on
December 1, 2015.
            Relative to the time Kasianczuk was incarcerated in Washington County
Prison, Kasianczuk pled guilty and was sentenced on the New Charges on January 9,
2017, and the Board recommitted him as a CPV on March 16, 2017. Thus, the time
Kasianczuk spent incarcerated at Washington County Prison from January 9, 2017 to

                                          8
March 16, 2017, must be credited to his new sentence. Gaito. The Board does not
have flexibility to determine the sentence to which credit should be applied.
              In the no-merit letter, Counsel represented:

              When [Kasianczuk] was initially paroled on September 8,
              2013[,] he owed the Board 1[,]398 days as the unserved
              balance of his [O]riginal [S]entence. That balance was
              reduced by the 6 months [(i.e., 182 days)] he served on his
              first technical violation [between October 2, 2014 and April
              2, 2015] and the 2½ months [(i.e., 75 days)] he served on
              his second technical violation [between September 17, 2015
              and December 1, 2015]. This reduced the unserved balance
              of his [O]riginal [S]entence to 1[,]141 days [(1,398-
              257=1,141].       If one adds 1[,]141 days to the date
              [Kasianczuk] was available to serve his recommitment
              [(March 16, 2017),] one arrives at the correct max[imum
              sentence release] date [(April 30, 2020)].

Counsel No-Merit Letter at 6. Counsel’s legal analysis and his calculations are
accurate, demonstrating that the Board properly credited Kasianczuk’s Original
Sentence.10
              Based on the foregoing, this Court concludes that Counsel complied with
Turner’s technical requirements and confirms based upon an independent record
review that Kasianczuk’s appeal lacks merit. Based upon the foregoing, Counsel’s
Application is granted and the Board’s order is affirmed.



                                          ___________________________
                                          ANNE E. COVEY, Judge




       10
          Having determined that the Board properly credited Kasianczuk’s Original Sentence, his
double jeopardy claims for not doing so are now moot.


                                               9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chester M. Kasianczuk,                  :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 1167 C.D. 2018
                         Respondent     :


                                      ORDER

            AND NOW, this 1st day of March, 2019, Centre County Public Defender
David Crowley, Esquire’s Application to Withdraw Appearance is GRANTED, and
the Pennsylvania Board of Probation and Parole’s July 27, 2018 order is AFFIRMED.



                                      ___________________________
                                      ANNE E. COVEY, Judge
