           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin R. Thompson,                             :
                              Petitioner        :
                                                :
               v.                               :   No. 26 C.D. 2018
                                                :   Submitted: August 10, 2018
Pennsylvania Board of Probation                 :
and Parole,                                     :
                        Respondent              :



BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: November 20, 2018


               Petitioner Justin R. Thompson (Thompson) petitions for review of an
order of the Pennsylvania Board of Probation and Parole (Board). The Board denied
Thompson’s petition for administrative relief, in which he sought to challenge the
Board’s recalculation of his maximum sentence date. Thompson’s counsel, David
Crowley, Esquire (Counsel), filed a petition to withdraw as counsel. Counsel asserts,
as expressed in his “no-merit” letter, that the issues Thompson raises in his petition
for review are without merit.1 We now deny Counsel’s petition to withdraw, but we

       1
         According to Counsel, “Thompson is in agreement with counsel and the Board that the
Board’s supplementation of the [certified] [r]ecord on March 19, 2018, has satisfied the Board’s
obligation to provide him with a contemporaneous reason for denying him credit for his street time
under Pittman v. Pennsylvania [Board] of [Probation] & Parole, 159 A.3d 466 ([Pa.] 2017).”
will provide Counsel with an opportunity to submit an amended petition to withdraw
as counsel.
               Thompson had been incarcerated at a State Correctional Institution
when the Board granted his parole by notice dated December 20, 2010. (Certified
Record (C.R.) at 7.) Thompson was officially released from confinement on
April 11, 2011. (Id.) At the time of his parole, Thompson had a maximum sentence
date of September 29, 2017. (Id.) On September 18, 2015, the Philadelphia Police
Department arrested Thompson and charged him with several offenses related to an
incident involving aggravated assault with a handgun. (Id. at 15.) The Board
scheduled a detention hearing on the pending criminal charges, which Thompson
waived. (Id. at 24.) Thompson later pled guilty to various charges related to the
assault, including possession of a firearm, and was sentenced to a maximum of eight
years on one count and a maximum of five years on a second count. (Id. at 28.) The
Board then recommitted Thompson as a convicted parole violator, by order dated
August 17, 2016. (Id. at 53-54.) In so doing, the Board recalculated Thompson’s
maximum sentence date to February 4, 2023. (Id. at 55.)
               Thompson then filed an administrative appeal from the Board’s
decision. (Id. at 60.) In that appeal, Thompson challenged the Board’s revocation
of his street time in recalculating his maximum sentence date. (Id.) Thompson
essentially argues that the Board has no authority to recalculate a judicially imposed
sentence. (Id. at 62-65.) The Board denied Thompson’s administrative appeal,
reasoning:
               The Board paroled you from a state correctional institution
               (SCI) on April 11, 2011 with a max date of

Counsel’s no-merit letter at 1. Regardless, this Court will analyze the issues presented on appeal,
because the case has not been withdrawn.

                                                2
                September 29, 2017. This left you with a total of 2363
                days remaining on your sentence at the time of parole. The
                Board’s decision to recommit you as a convicted parole
                violator authorized the recalculation of your sentence to
                reflect that you receive no credit for the time you were at
                liberty on parole. 61 Pa. C.S. § 6138(a)(2). In this case,
                the board did not award you credit for time at liberty on
                parole. This means you still had a total of 2363 days
                remaining on your sentence based on your recommitment.
                ....
                The Prisons and Parole Code[2] provides that convicted
                parole violators who are paroled from a state correctional
                institution and then receive another sentence to be served
                in a state correctional institution must serve the original
                sentence first. 61 Pa. C.S. § 6138(a)(5). However, that
                provision does not take effect until the parolee is
                recommitted as a convicted parole violator. Thus, you did
                not become available to commence service of your
                original sentence until August 16, 2016, when the board
                made their [sic] decision. Adding 2363 days to that date
                yields a new maximum sentence date of February 4, 2023.

(Id. at 71-72.) Thompson then filed a petition for review in this Court.
                We begin by addressing Counsel’s request to withdraw from his
representation of Thompson. When no constitutional right to counsel is involved in
a probation and parole case, an attorney seeking to withdraw from representing a
prisoner may file a no-merit letter, as compared to an Anders brief.3 In Hughes v.

       2
           61 Pa. C.S. §§ 101-6309.
       3
           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) (citing Anders, 386 U.S. at 744). The Supreme Court of
Pennsylvania, however, has held that in matters that are collateral to an underlying criminal


                                                 3
Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this
Court held that a constitutional right to counsel in a probation and 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
                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 Thompson that he did not
commit the crimes for which he received a new criminal conviction, nor does
Thompson suggest any reasons constituting justification or mitigation for his new
criminal conviction. Thus, Thompson only has a statutory right to counsel under
Section 6(a)(10) of the Public Defender Act.4
                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




proceeding, such as parole matters, a 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).
       4
           Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).


                                                  4
meritorious.5        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 Thompson’s appeal has no merit, we must first evaluate Counsel’s no-merit
letter to determine whether it complies with the requirements for withdrawal
applications.
                 In his petition for review, Thompson challenged the Board’s authority
to recalculate a judicially imposed sentence, alleging that the Board’s actions
extinguish judicial discretion under Section 9721 of the Sentencing Code, 42 Pa.
C.S. § 9721(a).6 In raising this issue, Thompson develops three specific points,
arguing that: (1) the Legislature’s recalculation of the maximum sentence pursuant
to Section 6138(a)(2) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2),7


       5
         Counsel served Thompson with his petition to withdraw and his no-merit letter. In a letter
addressed to Thompson, Counsel advised Thompson of his right to retain counsel and to file a brief
on his own behalf. Thus, Counsel has complied with these requirements.
       6
           Section 9721(a) of the Sentencing Code pertains to sentencing, generally, by a Court.
       7
         Section 6138(a) of the Prisons and Parole Code pertains to violation of terms of parole
by a convicted parole violator. Section 6138(a)(2) 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.
61 Pa. C.S. § 6138(a)(2).


                                                 5
eviscerates the judicial discretion which is provided by the courts pursuant to
Section 9721(a) of the Sentencing Code; (2) Section 6138(a)(2) of the Prisons and
Parole Code is in direct conflict with Section 6138(a)(5) of the Prisons and Parole
Code8—which only authorizes service of the term originally imposed—and that
Section 6138(a)(2) of the Prisons and Parole Code also violates the separation of
powers doctrine; and (3) Section 6138(a)(2) of the Prisons and Parole Code is in
direct conflict with Section 5505 of the Judicial Code, 42 Pa. C.S. § 5505.9
                 Counsel’s no-merit letter does not meet the requirements set forth in
Zerby. Counsel does not adequately evaluate each of the points Thompson raises
but instead merely glosses over the details of Thompson’s arguments. While the
letter contains a discussion of the relevant case law concerning the Board’s authority
to recalculate the sentences of convicted parole violators, this only relates to
Thompson’s broader claim. Further, the letter briefly discusses the first part of
Thompson’s second issue, but does not address Thompson’s separation of powers
argument or the arguments raised in issues one and three. This type of explanation
and/or discussion assists the Court in its evaluation of the merit (or lack thereof) of

       8
           Section 6138(a)(5) of the Prisons and Parole 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.
61 Pa. C.S. § 6138(a)(5).
       9
           Section 5505 of the Judicial Code pertains to modifications of orders.

                                                  6
Thompson’s claims. Although all of these issues may ultimately prove to lack merit
of any kind, in order to satisfy the requirements set forth in Zerby, Counsel was
required to fully discuss those issues and why the applicable law affords Thompson
no relief. It must also be noted that Counsel does not provide an adequate summary
of Thompson’s parole and conviction history.         Consequently, we must deny
Counsel’s petition to withdraw as counsel. Counsel has two options. Counsel may
file an amended no-merit letter that fully analyzes the issues Thompson has raised.
Alternatively, Counsel may submit a brief on the merits of the petition for review.
             Accordingly, we deny Counsel’s petition to withdraw.




                                         P. KEVIN BROBSON, Judge




                                         7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Justin R. Thompson,                       :
                          Petitioner      :
                                          :
             v.                           :   No. 26 C.D. 2018
                                          :
Pennsylvania Board of Probation           :
and Parole,                               :
                        Respondent        :



                                       ORDER


             AND NOW, this 20th day of November, 2018, the petition to withdraw
as counsel, filed by David Crowley, Esquire (Counsel), 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 Justin R. Thompson 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
