           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David M. Tres,                                   :
                              Petitioner         :
                                                 :
               v.                                :   No. 828 C.D. 2018
                                                 :   Submitted: November 9, 2018
Pennsylvania Board of                            :
Probation and Parole,                            :
                              Respondent         :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                 FILED: June 3, 2019

               Petitioner David M. Tres (Tres) petitions for review of a final
determination of the Pennsylvania Board of Probation and Parole (Board), mailed
May 24, 2018. The Board affirmed its prior decision, recorded on March 1, 2017
(mailed March 17, 2017), thereby denying Tres’s request for administrative relief,
in which he sought to challenge the Board’s recalculation of his maximum sentence
date. Tres’s counsel, David Crowley, Esquire (Counsel), filed an application to
withdraw as counsel. Counsel asserted, as expressed in his no-merit letter,1 that the

       1
          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. Anders, 386 U.S. at 744. 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. &
issues Tres raises in his petition for review are without merit. For the reasons set
forth below, we grant Counsel’s application to withdraw and affirm the decision of
the Board.
               By action recorded on August 3, 2015, the Board granted Tres parole.
(Certified Record (C.R.) at 4.) Tres was officially released from confinement at a
State Correctional Institution on October 6, 2015. (Id. at 7.) At the time of his
parole, Tres had a maximum sentence date of October 6, 2018. (Id.)
               On June 11, 2016, the Upper Darby Police Department arrested Tres on
various charges relating to possession of a firearm. (Id. at 12-15.) That same day,
the Board issued a warrant to commit and detain Tres. (Id. at 11.) Tres posted bail
on July 25, 2016. (Id. at 44.) Tres waived his right to a detention hearing and
counsel, and by Board action recorded on August 16, 2016 (mailed
on August 24, 2016), the Board detained Tres pending resolution of his criminal
charges. (Id. at 22, 25.) On October 18, 2016, the Court of Common Pleas of
Delaware County convicted Tres of possession of a firearm prohibited and receiving
stolen property and sentenced him to an aggregate term of 42 to 96 months. (Id.
at 26-27.)




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, 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).


                                                  2
               Tres waived his right to a revocation hearing and counsel. The Board
prepared a hearing report, dated January 6, 2017, which Board members signed on
January 19, 2017, and February 21, 2017. (Id. at 34-41.) Thereafter, by action
recorded on March 1, 2017 (mailed on March 17, 2017), the Board recommitted Tres
as a convicted parole violator for a period of 24 months’ back time. (Id. at 54.) The
Board recalculated Tres’s maximum sentence date as November 29, 2019, and
calculated Tres’s parole eligibility date as November 28, 2018. (Id.)
               On or about April 6, 2017, Tres filed a request for administrative relief
with the Board. (Id. at 60-63.) Tres argued that the Board erred in recalculating his
maximum sentence date because it failed to properly credit his sentence and did not
recommit him until February 21, 2017—months after his conviction on
October 18, 2016. (Id.) Tres also argued that the Board erred in calculating his
reparole eligibility date. (Id.) Almost one year later, by letter dated March 28, 2018,
Counsel requested that the Board answer Tres’s request for administrative relief.
(Id. at 65.) Thereafter, the Board issued a final determination, dated May 24, 2018,
denying Tres’s challenge. (Id. at 67-68.) In so doing, the Board reasoned:
               Mr. Tres was released on parole on October 6, 2015, with
               a maximum sentence date of October 6, 2018. At that
               point, 1096 days remained on his sentence. The Board has
               the authority to establish a parole violation maximum date
               in cases of convicted parole violators. See Young v.
               Commonwealth, 409 A.2d 843 (Pa. 1979); Armbruster v.
               Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa.
               Cmwlth. 2007). Because he was recommitted as a
               convicted parole violator, Mr. Thomas [sic]2 is required to
               serve the remainder of his original term and is not entitled
               to credit for any periods of time he was at liberty on parole.
               61 Pa. C.S. § 6138(a)(2). Mr. Thomas [sic] was sentenced
               to state incarceration on October 18, 2016. He is entitled

      2
          The Board appears to mistakenly refer to Mr. Tres as Mr. Thomas.

                                               3
               to 85 days credit on his parole violation maximum date for
               the time he was detained solely by the Board from
               July 25, 2016[,] to October 18, 2016. Gaito v. Pa. Bd. of
               Prob. & Parole, 412 A.2d 568 (Pa. 1980). Because he was
               sentenced to state incarceration, he is required to serve his
               original sentence prior to his new sentence. 61 Pa.
               C.S. § 6138(a)(5)(i). However, that provision does not
               take effect until a parolee is recommitted as a convicted
               parole violator. Thus, he did not become available to
               commence service of the original sentence until the Board
               voted to recommit him as a parole violator on February 21,
               2017. Campbell v. Pa. Bd. of. Prob. & Parole. 409 A.2d
               980 (Pa. Cmwlth. 1980). Adding 1011 days (1096 [minus]
               85) to October 10, 2016[,] results in the November 29,
               2019 parole violation maximum date. The “parole
               eligibility” date listed on the decision is a reflection of the
               application [sic] presumptive range for the new
               conviction. The Board understands Mr. Tres has the right
               to apply for parole and will process any application filed
               accordingly.
(Id. at 67.)
               Tres then filed this instant petition for review on June 19, 2018, arguing
that the Board failed to credit his original sentence with all the time to which he is
entitled. Just prior to the filing of the petition for review, the Board issued a decision,
dated June 18, 2018, granting reparole to Tres. (Id. at 58.) In that decision, the
Board noted Tres’s maximum sentence date as November 29, 2019, consistent with
its earlier action. (Id.)
               Before evaluating the merits of Tres’s challenge, we will first address
Counsel’s application to withdraw from his representation of Tres. 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.      In Hughes v. Pennsylvania Board of Probation and Parole,
977 A.2d 19 (Pa. Cmwlth. 2009) (en banc), this Court held that a constitutional right
to counsel in a parole matter arises only when the prisoner’s case includes:
                                             4
                [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 Tres that he did not commit the
crimes for which he received a new criminal conviction, nor does Tres suggest any
reasons to justify or mitigate the parole violation—i.e., his new criminal conviction.
Thus, Tres has only 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. and 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
       3
           Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).
       4
         Counsel served Tres with his application to withdraw and no-merit letter. Counsel
advised Tres of his right to retain counsel and to file a brief on his own behalf. Thus, Counsel has
complied with these requirements.

                                                 5
whether Tres’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, Tres argues that the Board failed to credit his
original sentence with all the time to which he is entitled. Counsel’s no-merit letter
contains an adequate summary of Tres’s parole and conviction history. Further,
Counsel has discussed the issue and provided a satisfactory legal analysis.5
Counsel’s no-merit letter, therefore, meets the requirements under Zerby, and we
may proceed to determine whether Counsel is correct that Tres’s petition for review
has no merit.
                 Section 6138(a) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a),
gives the Board discretion to award credit for the time spent at liberty on parole. 6

       5
          In considering whether the Board failed to properly credit Tres for any time to which he
may be entitled, Counsel addressed whether the Board: (1) abused its discretion in denying him
credit for time at liberty on parole when it failed to provide a contemporaneous reason for denying
him credit; and (2) erred in recalculating his maximum sentence date. In what appears to be an
abundance of caution, Counsel also addressed an issue that Tres raised before the Board but
abandoned in his petition for review filed before this Court—i.e., whether the Board violated his
due process rights as a result of the delay between the date of his conviction and the date the Board
recommitted him as a convicted parole violator. Counsel, observing that the Board conducted a
timely revocation hearing and, citing Brown v. Pennsylvania Board of Probation and Parole,
456 A.2d 1141 (Pa. Cmwlth. 1983), concluded that there was no legal support for such an
argument. We agree. Tres waived his right to a revocation hearing. (C.R. at 33.) The Board
received official verification of the October 18, 2016 conviction on January 4, 2017. (Id. at 26-27.)
The Board prepared its hearing report on January 6, 2017, and recommitted Tres on
February 21, 2017, well within the 120-day period in which the Board must conduct a revocation
hearing as required by 37 Pa. Code § 71.4(1). (Id. at 34-41.) Under these circumstances, we, too,
discern no due process violation.
       6
           Section 6138(a) of the Prisons and Parole Code provides, in part:
       (a) Convicted violators.--
                 (1) A parolee under the jurisdiction of the board released from a
                 correctional facility who, during the period of parole or while delinquent
                 on parole, commits a crime punishable by imprisonment, for which the


                                                  6
When deciding not to award such credit, the Board must “provide a
contemporaneous statement explaining its reason for denying a [convicted parole
violator] credit for time spent at liberty on parole.” Pittman v. Pa. Bd. of Prob. and
Parole, 159 A.3d 466, 475 (Pa. 2017). Accordingly, so long as the Board provides
a reason for denying credit for street time, it has sufficiently exercised its
discretionary power. In this case, the Board explained its reason for denying Tres
credit for his street time by checking the box on the hearing report denying credit
and indicating that it denied credit due to the fact that Tres was arrested for a firearms
charge. (C.R. at 36, 41.) The Board, therefore, has exercised its discretionary
powers pursuant to Section 6138(a) of the Prisons and Parole Code and satisfied our
Supreme Court’s decision in Pittman when it provided a contemporaneous written


             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), shall be given no credit for the time at
             liberty on parole.
             (2.1) The board may, in its discretion, award credit to a parolee
             recommitted under paragraph (2) for the time spent at liberty on parole,
             unless any of the following apply:
                    (i) The crime committed during the period of parole or while
                    delinquent on parole is a crime of violence as defined in 42 Pa. C.S.
                    § 9714(g) (relating to sentences for second and subsequent offenses)
                    or a crime requiring registration under 42 Pa. C.S. Ch. 97 Subch. H
                    (relating to registration of sexual offenders).
                    (ii) The parolee was recommitted under section 6143 (relating to
                    early parole of inmates subject to Federal removal order).
(Emphasis added.)

                                              7
explanation for the denial. Accordingly, the Board did not abuse its discretion in
denying him credit for time at liberty on parole.
             In addition to the discretionary credit for periods of time spent at liberty
on parole discussed above, a parolee may be entitled to credit on the sentence from
which he was paroled for time spent in confinement prior to sentencing on a
subsequent criminal conviction. When the Board has lodged a detainer and the
parolee has not posted bail on his new criminal charges, such that the parolee is being
confined on both the Board’s detainer and as a result of the pending criminal charge,
pre-sentence confinement credit must be applied to reduce the new sentence of
incarceration unless the credit would exceed that new sentence of incarceration.
Martin v. Pa. Bd. of Prob. and Parole, 840 A.2d. 299, 307-09 (Pa. 2003). To the
contrary, when a parolee has posted bail, such that he is detained solely on the
Board’s warrant, the Board must apply the pre-sentence confinement credit to reduce
the unserved balance of the sentence from which the parolee was paroled. Gaito v.
Pa. Bd. of Prob. and Parole, 412 A.2d 568, 571 (Pa. 1980).
             Furthermore, whether time spent in confinement subsequent to
sentencing is applied to the sentence from which a parolee was paroled or to the
sentence for a new criminal conviction depends upon whether the Board has
recommitted the parolee. Section 6138(a)(4) of the Code, 61 Pa. C.S. § 6138(a)(4),
provides that “[t]he 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.” (Emphasis added.)
The provisions of Section 6138(a)(4), therefore, become operative only once the
Board has revoked parole. See Barnes v. Pa. Bd. of Prob. and Parole, 203 A.3d 382,
391-92 (Pa. Cmwlth. 2019). In Barnes, we explained:


                                           8
             [I]t is well established that the requirement that a
             [convicted parole violator] serve the balance of his
             original sentence is only operative once “parole has been
             revoked and the remainder of the original sentence
             becomes due and owing.” Therefore, “credit for time a
             [convicted parole violator] spends in custody between
             imposition of a new sentence and revocation of parole
             must be applied to the new sentence.” Parole revocation
             occurs once a hearing examiner and Board member or two
             Board members sign a hearing report recommitting a
             prisoner as a [convicted parole violator].

Id. (citations omitted).
             Here, Tres had 1096 days left on his sentence when he was released on
parole. (C.R. at 56.) Tres was arrested on the new charges on June 11, 2016, and
he failed to post bail until July 25, 2016. (Id. at 16, 43.) Under Martin, the
pre-sentence confinement time between June 11, 2016, and July 25, 2016, can only
be applied to his new sentence. In compliance with Gaito, the Board credited Tres
with the 85 days he was detained solely on its warrant from July 25, 2016, until he
was sentenced on October 18, 2016. (C.R. at 56.) After applying the 85 day credit
to Tres’s remaining original sentence, his unserved balance is 1011 days. (Id.) At
the time of his sentence, Tres had not yet been recommitted by the Board as either a
technical or convicted parole violator, because the Board did not recommit Tres until
February 21, 2017, when the second Board member signed the hearing report. (Id.
at 41.) Thus, following sentencing, Tres did not begin to serve time on his original
sentence until February 21, 2017, and the time between sentencing and
February 21, 2017, must be credited to his new sentence under Barnes. As such,
adding the remaining 1011 days of his sentence (full remaining sentence of 1096
days minus 85 credited days) to the start date of February 21, 2017, results in a new
maximum sentence date of November 29, 2019. The Board, therefore, did not err in


                                         9
its recalculation of Tres’s new maximum sentence date, and it did not deny Tres any
credit to which he is entitled.
             Based on the foregoing discussion, we agree with Counsel that Tres’s
petition for review lacks merit, and, therefore, we grant Counsel’s application to
withdraw as counsel. Moreover, because we have concluded that Tres’s appeal lacks
merit, we affirm the order of the Board denying his administrative appeal.




                                         P. KEVIN BROBSON, Judge




                                        10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David M. Tres,                         :
                        Petitioner     :
                                       :
            v.                         :   No. 828 C.D. 2018
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                        Respondent     :



                                     ORDER


            AND NOW, this 3rd day of June, 2019, the application to withdraw as
counsel filed by David Crowley, Esquire, is GRANTED, and the final determination
of the Pennsylvania Board of Probation and Parole is AFFIRMED.




                                       P. KEVIN BROBSON, Judge
