        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Melvin L. Lovett,                          :
                           Petitioner      :
                                           :
             v.                            :   No. 1153 C.D. 2018
                                           :   Submitted: January 18, 2019
Pennsylvania Board                         :
of Probation and Parole,                   :
                           Respondent      :


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


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                           FILED: May 9, 2019


             Petitioner Melvin L. Lovett (Lovett) petitions for review of a final
determination of the Pennsylvania Board of Probation and Parole (Board), dated
July 27, 2018, which denied Lovett’s request for administrative relief, challenging
the Board’s recalculation of his maximum sentence date as July 26, 2020. Lovett’s
counsel, David Crowley, Esquire (Counsel), filed a motion to withdraw as counsel.
Counsel asserts, as expressed in his “no-merit” letter, that the issues Lovett raises in
his petition for review are without merit. We deny Counsel’s motion to withdraw as
counsel, but we will provide Counsel with an opportunity to submit an amended
request for leave to withdraw.
              Lovett had been incarcerated at a State Correctional Institution when
the Board granted him parole and released him on October 15, 2009. (Certified
Record (C.R.) at 6.) At the time of his parole, Lovett had a maximum sentence date
of September 4, 2016. (Id.) On November 5, 2010, the Philadelphia Police
Department arrested Lovett on new criminal charges, and the Board detained him on
these charges until they were dismissed on June 6, 2012. (Id. at 10-11.) On
December 19, 2013, the Philadelphia Police Department arrested Lovett and charged
him with felony possession of a firearm. (Id. at 16.) On that same date, the Board
issued a detainer against Lovett. (Id. at 17.) Lovett waived his right to attend a
revocation hearing relating to the pending criminal charges. (Id. at 19-20, 24.) On
January 22, 2014, the Board recommitted Lovett as a technical parole violator to
serve 6 months at a State Correctional Institution. (Id. at 40-44.) At that time, the
Board recalculated Lovett’s maximum sentence date to December 18, 2016. (Id.)
Lovett pleaded guilty to the charge of felony possession of a firearm on April 10,
2015. (Id. at 66-70.) Lovett, again, waived his right to a revocation hearing, and,
on October 19, 2015, the Board recommitted Lovett as a convicted parole violator
to serve 24 months consecutive to his recommitment as a technical parole violator.
(Id. at 48, 87, 89.) In doing so, the Board recalculated Lovett’s maximum sentence
date to July 26, 2020. (Id. at 87, 89.) By order issued on May 18, 2017, the Board
reparoled Lovett. (Id. at 93-95.)
              Lovett then filed a request for administrative relief, challenging the
Board’s recalculation of his sentence.1 (Id. at 98.) The Board denied Lovett’s

       1
         Lovett actually requested administrative relief from the Board’s decision entered on
October 19, 2015, which recalculated his maximum sentence date as July 26, 2020. The Board
did not receive Lovett’s administrative appeal until May 24, 2017, more than 30 days after the
Board’s recorded action. Pursuant to 37 Pa. Code § 73.1(b)(1): “Petitions for administrative


                                              2
request for administrative relief, explaining: “Upon review of your case, it was
determined there is no indication the Board failed to appropriately recalculate your
maximum date and your request for relief is denied.” (Id. at 103.) Lovett then filed
a petition for review in this Court.
               We begin by addressing Counsel’s request to withdraw from his
representation of Lovett. When no constitutional right to counsel is involved in a
parole case, an attorney seeking to withdraw from representing a prisoner may file a
no-merit letter, as compared to an Anders brief.2 In Hughes v. Pennsylvania Board
of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this Court held that a
constitutional right to counsel in a parole matter arises only when the prisoner’s case
includes:
               [a] colorable claim (i) that he has not committed the
               alleged violation of the conditions upon which he is at

review shall be received at the Board’s Central Office within 30 days of the mailing date of the
Board’s determination.” Further, 37 Pa. Code § 73.1(b)(3) provides: “[P]etitions for
administrative review which are out of time under this part will not be received.” We are unsure
as to why the Board did not reject the administrative appeal as untimely. Regardless, we will
review the merits of the appeal.
       2
           In Anders v. California, 386 U.S. 738 (1967), the Supreme Court of the United States
held that in order for a criminal defendant’s counsel to withdraw from representing his client in an
appeal, the counsel must assert that the case is completely frivolous, as compared to presenting an
absence of merit. An appeal is completely or “wholly” frivolous when there are no factual or legal
justifications that support the appeal. Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758, 761 (Pa.
Cmwlth. 1985). In seeking to withdraw, counsel must submit a petition to withdraw and a brief
“referring to anything in the record that might arguably support the appeal.” Cmwlth. v.
Baker, 239 A.2d 201, 202 (Pa. 1968) (quoting Anders, 386 U.S. at 744). The Supreme Court of
Pennsylvania, however, has held that in matters that are collateral to an underlying criminal
proceeding, such as parole matters, counsel seeking to withdraw from his representation of a client
may file a “no-merit” letter that includes information describing the extent and nature of the
counsel’s review, listing the issues the client wants to raise, and informing the court of the reasons
why counsel believes the issues have no merit. Cmwlth. v. Turner, 544 A.2d 927, 928-29
(Pa. 1988).


                                                  3
                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.

Hughes, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).
The record in this matter contains no suggestion by Lovett that he did not commit
the crimes for which he received a new criminal conviction, nor does Lovett suggest
any reasons constituting justification or mitigation for his new criminal conviction.
Thus, Lovett only has a statutory right to counsel under Section 6(a)(10) of the Public
Defender Act.3
                In order to satisfy the procedural requirements associated with no-merit
letters, counsel must: (1) notify the parolee that he has submitted to the Court a
request to withdraw; (2) provide the parolee with a copy of counsel’s no-merit letter;
and (3) advise 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.4        Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 33
(Pa. Cmwlth. 2006). 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. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). Consequently,
before making an independent review of the merits of the appeal to determine
whether Lovett’s appeal has no merit, we must first evaluate Counsel’s no-merit

       3
           Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).
       4
        Counsel served Lovett with his petition to withdraw and his no-merit letter. In a letter
addressed to Lovett, Counsel advised Lovett of his right to retain counsel and to file a brief on his
own behalf. Thus, Counsel has complied with these requirements.

                                                 4
letter to determine whether it complies with the requirements for withdrawal
applications.
                In his request for administrative relief before the Board, Lovett
challenged the Board’s authority to recalculate his judicially imposed sentence,
alleging that the Board’s recalculation of Lovett’s maximum sentence date to extend
it beyond its original date: (1) violates the separation of powers doctrine; (2) violates
his right to procedural due process; and (3) eviscerates the judicial discretion
provided to the courts under Section 9721(a) of the Sentencing Code, 42 Pa. C.S.
§ 9721(a). Lovett also alleges that the Board’s recalculation is improper because
Section 6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138(a)(2),
is in direct conflict with Section 6138(a)(5) of the Code, 61 Pa. C.S. § 6138(a)(5).5
In the petition for review filed with this Court, Lovett raises the following issues:
(1) the Board improperly declined to credit his original sentence; and (2) the Board

       5
        Section 6138(a) of the Code sets forth provisions pertaining to violation of terms of parole
by a convicted parole violator. Section 6138(a)(2) of the Code provides:
               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.
Section 6138(a)(5) of the Code provides:
              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.
                (ii) If a person is paroled from a county prison and the new sentence
                imposed upon him is to be served in the same county prison.
                (iii) In all other cases, the service of the new term for the latter crime shall
                precede commencement of the balance of the term originally imposed.

                                                   5
did not articulate contemporaneous reasons for refusing to award credit. Counsel’s
no-merit letter identifies all of Lovett’s arguments that were set forth in his request
for administrative relief and includes an analysis of the merits of each issue raised.
Counsel’s no-merit letter, however, fails to address the issues identified in the
petition for review filed with this Court. Counsel’s no-merit letter, therefore, does
not meet the requirements set forth in Zerby.
             Due to the fact that Counsel failed to address the arguments set forth in
Lovett’s petition for review, we deny Counsel’s motion for leave to withdraw as
counsel, but we will provide Counsel with an opportunity to submit an amended
request for leave to withdraw.




                                          P. KEVIN BROBSON, Judge




                                          6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Melvin L. Lovett,                         :
                           Petitioner     :
                                          :
             v.                           :   No. 1153 C.D. 2018
                                          :
Pennsylvania Board                        :
of Probation and Parole,                  :
                           Respondent     :



                                        ORDER


             AND NOW, this 9th day of May, 2019, the motion to withdraw as
counsel filed by David Crowley, Esquire, is DENIED. Counsel shall submit either
an amended no-merit letter or a brief on the merits of the petition for review filed by
Petitioner Melvin L. Lovett within thirty days of the date of this order. If Counsel
submits an amended no-merit letter, the Court will again address that request along
with the merits of the petition for review. If Counsel submits a brief on the merits,
Respondent may submit a brief within thirty days of the date Counsel files and serves
a brief on the merits.




                                          P. KEVIN BROBSON, Judge
