           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Casey,                          :
                   Petitioner           :
                                        :
                   v.                   : No. 2346 C.D. 2014
                                        : Submitted: September 18, 2015
Pennsylvania Board of Probation         :
and Parole,                             :
                 Respondent             :



BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE COLINS                               FILED: October 15, 2015

             Before this Court are the petition of Richard Casey for review of the
December 2, 2014 determination of the Pennsylvania Board of Probation and
Parole (Board), which denied his administrative appeal of a Board order
recommitting him for six months of backtime and recalculating his maximum
sentence date, and the application of Victor Rauch, Esq., Assistant Public Defender
of Philadelphia County (Counsel), for leave to withdraw as attorney for Mr. Casey
on the ground that the petition for review is frivolous. Because we conclude that
the issues raised in Mr. Casey’s appeal are meritless, we grant Counsel’s
application for leave to withdraw and we affirm the Board’s determination.
             On November 3, 2010 Mr. Casey was released on parole with a
maximum sentence date of June 21, 2015. (Record Item (R. Item) 2, Release on
Parole.)   At the time of his parole, Mr. Casey agreed to specific conditions
governing his parole. (Id., Conditions Governing Parole.) One of the conditions
that Mr. Casey acknowledged was that if he was convicted of a crime while at
liberty on parole the Board, following a hearing, had authority to recommit Mr.
Casey for the balance of his sentence with no credit for time spent at liberty on
parole. (Id.)
                On September 15, 2013, Mr. Casey was arrested by the Eddystone
Police Department on charges of theft by deception, forgery, and resisting arrest.
(R. Item 7, Police Criminal Complaint.) On September 16, 2013, bail was set for
Mr. Casey and the Board lodged a detainer against Mr. Casey pending disposition
of his new criminal charges. (R. Item 4, Detainer; R. Item 15, Criminal Docket.)
Mr. Casey did not post bail on the new criminal charges. (R. Item 15, Criminal
Docket.)
                On March 17, 2014, Mr. Casey pled guilty to theft by deception and
resisting arrest.     (R. Item 15, Criminal Docket; R. Item 16, Certificate of
Imposition of Judgment of Sentence.) Mr. Casey was sentenced to 1 to 23 months
with 1 year of supervised probation, he received credit for 1 month of the time he
spent incarcerated in county jail towards his sentence, and he was immediately
paroled. (Id.) On May 15, 2014, Mr. Casey acknowledged receipt of notice of a
revocation hearing scheduled for June 18, 2014 to address whether he had been
convicted on new criminal charges while he was at liberty on parole and he waived
his right to a full panel hearing. (R. Item 12, Panel Hearing Waiver, Notice of
Charges and Hearing.) On June 18, 2014, Mr. Casey, represented by counsel,
testified before a hearing examiner and admitted to his new criminal conviction.
(Supplemental R. Item, Hearing Transcript at 5, 8.)



                                          2
              On July 28, 2014 the Board recommitted Mr. Casey as a convicted
parole violator to serve six months backtime and recalculated his maximum
sentence date as November 2, 2018. (R. Item 15, Board Action Recorded 7/22/14.)
Mr. Casey filed a pro se appeal and, on December 2, 2014, the Board affirmed its
July 28, 2014 order. (R. Item 16, Petition for Administrative Review, Board
Determination.) On December 18, 2014, Mr. Casey filed a pro se petition for
review with this Court and, on February 12, 2015, Counsel was appointed for Mr.
Casey.1
              On July 6, 2015, Counsel submitted a petition to withdraw
accompanied by a brief in accordance with Anders v. California, 386 U.S. 738
(1967). Where a constitutional right to counsel exists, appointed counsel must file
an Anders brief in support of a petition to withdraw. A constitutional right to
counsel arises in appeals from determinations revoking parole and exists where a
parolee has 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 v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009)
(en banc).    Where a parolee has a statutory right to counsel, rather than a
constitutional right, a no-merit letter is sufficient and counsel need not submit an



1
 The Luzerne County Office of the Public Defender was originally appointed to represent Mr.
Casey. On January 25, 2015, Mr. Casey was paroled within Philadelphia County and, upon
application, the Luzerne County Office of the Public Defender withdrew and Counsel was
appointed to represent Mr. Casey.

                                            3
Anders brief.2 Commonwealth v. Santiago, 978 A.2d 349, 351 n.2 (Pa. 2009);
Hughes, 977 A.2d at 24-25. A no-merit letter must set forth: (i) the nature and
extent of counsel’s review of the case; (ii) each issue that the inmate wishes to
raise on appeal; and (iii) counsel’s explanation of why each of those issues is
meritless. Commonwealth v. Turner, 544 A.2d 927, 928-929 (Pa. 1988); Reavis v.
Pennsylvania Board of Probation and Parole, 909 A.2d 28, 33 (Pa. Cmwlth.
2006). In the instant matter, Counsel filed an Anders brief when a no-merit letter
would have been sufficient. In such instances, this Court will accept an Anders
brief in place of a no-merit letter if the Anders brief has complied with the
technical requirements of a no-merit letter. Seilhamer v. Pennsylvania Board of
Probation and Parole, 996 A.2d 40, 43 (Pa. Cmwlth. 2010). Additionally, this
Court will evaluate the issues presented to determine whether they are meritless
rather than to determine if the appeal lacks any basis in law or fact as is required by
Anders. Hughes, 977 A.2d at 26 n.4.
             Upon review of Counsel’s petition and accompanying brief, it is clear
that Counsel has satisfied the procedural requirements necessary to withdraw as
appointed counsel: (i) Counsel has notified Mr. Casey of his request to withdraw;
(ii) Counsel has furnished Mr. Casey with a copy of the petition to withdraw and
the brief filed in support of withdrawal; and (iii) Counsel has advised Mr. Casey of
his right to retain new counsel, to proceed pro se and to raise any additional points
that Mr. Casey may deem worthy of consideration. Miskovitch v. Pennsylvania
Board of Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013). Furthermore,
Counsel has complied with the substantive requirements of a no-merit letter.
Seilhamer, 996 A.2d at 43-44; Hughes, 977 A.2d at 26-27; Reavis, 909 A.2d at 33.

2
 See Section 6(a) of the Act commonly known as the Public Defender Act, Act of December 2,
1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a).
                                            4
Counsel has included a statement advising this Court that after a thorough review
of the record, Counsel has concluded that the issues preserved for appeal are
frivolous. Counsel has described the factual and procedural history of the instant
matter, with citations to the record. Counsel has listed each issue that Mr. Casey
sought to raise in his pro se petition for review and has offered an explanation as to
why Counsel believes that each of these issues is without merit.                Therefore,
because we conclude that Counsel has satisfied the procedural and substantive
requirements necessary to withdraw as counsel, we will conduct an independent
review of the proceedings before the Board to determine if Mr. Casey’s appeal is
meritless.3
              Initially, we reiterate that failure to raise an issue before the Board
results in waiver of that issue and review by this Court is precluded. Reavis, 909
A.2d at 34. In the instant matter, Mr. Casey appears to have waived his first two
issues. However, even if Mr. Casey had preserved each of the issues presented in
his petition for review, our independent analysis leads us to determine that the
issues he has raised are meritless.
              The first issue raised by Mr. Casey in his petition for review is that the
Board acted beyond its authority by recalculating his maximum sentence date as
November 2, 2018. Section 6138 of the Prisons and Parole Code (Code), 61 Pa.
C.S. § 6138, provides the Board with authority to deny a convicted parole violator
credit for time spent at liberty on parole towards the convicted parole violator’s



3
  Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, and whether necessary findings were supported by
substantial evidence. 2 Pa.C.S. § 704; Adams v. Pennsylvania Board of Probation and Parole,
885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).

                                             5
maximum term expiration date.4 Our Supreme Court has consistently upheld the
constitutionality of the Board’s statutory authority to deny a convicted parole
violator credit for time spent at liberty on parole. See Gaito v. Pennsylvania Board
of Probation and Parole, 412 A.2d 568, 570 (Pa. 1980) (“when the Board refuses
to credit a convicted parole violator with time spent free on parole there is neither a
usurpation of the judicial function of sentencing nor a denial of the procedural
safeguards to which persons are entitled.”).
                 Denying credit for time spent at liberty on parole is not an extension
of a judicially imposed sentence. Had the Board attempted to add time in addition
to that spent at liberty on parole as a punishment, then the Board would have acted
illegally by usurping powers reserved to the judicial branch. Instead, the Board

4
    Section 6138(a) of the Code provides, inter alia:

          (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 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).

61 Pa. C.S. § 6138(a)(1)-(2.1).
                                                  6
denied Mr. Casey credit for his time spent at liberty on parole because he did not
adhere to the conditions of his parole and was convicted on new criminal charges.
Put simply, Mr. Casey failed to serve that portion of his sentence spent outside the
confines of a state correctional facility and the Board determined that he must do
so.
            Moreover, the Board’s determination demonstrates that it exercised its
discretion without abuse and concluded that Mr. Casey should be recommitted.
The Board’s hearing report reflects that it reviewed the evidence, which was
substantial and included Mr. Casey’s admission, and that the Board determined
that Mr. Casey should be evaluated for drugs and alcohol, participate in a cognitive
behavioral change program, and then be reevaluated for parole. (R. Item 14,
Hearing Report.) There is no evidence that the Board acted in an arbitrary or
capricious manner, acted fraudulently, or committed an abuse of power. Harmer v.
Pennsylvania Board of Probation and Parole, 83 A.3d 293, 298 (Pa. Cmwlth.
2014); Baldelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92, 96-97
(Pa. Cmwlth. 2013). Therefore, this Court has no authority to disturb the Board’s
order, as it acted clearly within the discretion afforded it under the Code, and Mr.
Casey’s argument to the contrary is without merit.
            Next, Mr. Casey claims that he did not receive adequate notice that
one possible outcome of his recommitment hearing was the loss of credit for time
spent at liberty on parole and that this lack of notice violated his right to due
process. The record reflects otherwise. As noted above, Mr. Casey agreed to a
number of conditions governing his parole, one of which stated that if he was
convicted of a crime while at liberty on parole, the Board had authority to
recommit him to serve the balance of his sentence without credit for any of his


                                         7
time spent at liberty on parole. (R. Item 2, Conditions Governing Parole.) The
Board was not required to advise Mr. Casey again as a part of his recommitment
hearing that, as one of many possible outcomes, he was subject to loss of credit for
time spent at liberty on parole. Due process requires that Mr. Casey be given
notice of the claimed parole violation, disclosure of the evidence against him, an
opportunity to be heard before a neutral hearing body, and a written decision.
Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Commonwealth ex rel. Rambeau v.
Rundle, 314 A.2d 842, 846-847 (Pa. 1973); Mignone v. Pennsylvania Board of
Probation and Parole, 545 A.2d 483, 484 (Pa. Cmwlth. 1988).              Mr. Casey
received notice that he was charged by the Board with having received a new
criminal conviction. (R. Item 12, Notice of Charges and Hearing.) A hearing was
held where Mr. Casey was represented by counsel, testified before the hearing
examiner, and was given the opportunity to present evidence and cross-examine
his parole officer, the sole witness presented by the Board. (Supplemental R. Item,
Hearing Transcript.)      Following the hearing, the Board issued a written
determination. (R. Item 15, Board Action Recorded 7/22/14.) It is clear from the
record that Mr. Casey received the full process he was due and that his argument to
the contrary is without merit.
             Finally, Mr. Casey contends that the Board erred in failing to credit
his sentence with time spent incarcerated in county jail due to the Board’s detainer.
Mr. Casey was granted but did not post bail. Mr. Casey was sentenced on March
17, 2014 to 1 to 23 months with 1 year of supervised probation, he was given
credit against his county sentence for the period from September 16, 2013 until
October 14, 2013, and he was immediately paroled. Mr. Casey contends that the
period from October 14, 2013, the date of retroactive parole given to him at


                                         8
sentencing, to March 17, 2014, the date of his sentencing, should be credited
against his state sentence. In Banks v. Pennsylvania Board of Probation and
Parole, 928 A.2d 384 (Pa. Cmwlth. 2007), this Court held that a convicted parole
violator “did not become available to begin serving backtime on his original state
sentence on the date of retroactive parole because a retroactive parole has no legal
effect on availability to serve an existing state sentence. Instead, [a convicted
parole violator] continued to serve only his new county sentence until that sentence
was actually pronounced.” Id. at 387. An exception to this rule exists where a
convicted parole violator “is confined on both the Board’s warrant and the new
criminal charges and it is not possible to award all of the credit on the new
sentence because the period of pre-sentence incarceration exceeds the maximum
term of the new sentence.” Armbruster v. Pennsylvania Board of Probation and
Parole, 919 A.2d 348, 355 (Pa. Cmwlth. 2007). Mr. Casey does not fall within
this exception; instead, Mr. Casey is in the same position as the convicted parole
violator in Banks. Mr. Casey’s argument that the time period from October 14,
2013 to March 17, 2014 should be applied to his state rather than his county
sentence is therefore without merit.
             Accordingly, we grant Counsel’s petition to withdraw and affirm the
Board’s order.



                                       __________ ___________________________
                                       JAMES GARDNER COLINS, Senior Judge




                                          9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Casey,                        :
                  Petitioner          :
                                      :
                  v.                  :
                                      :   No. 2346 C.D. 2014
Pennsylvania Board of Probation       :
and Parole,                           :
                 Respondent           :



                                  ORDER


            AND NOW, this 15th day of October, 2015, the application of Victor
Rauch, Esq., Assistant Public Defender of Philadelphia County, for leave to
withdraw as attorney for Richard Casey is GRANTED and the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter is
AFFIRMED.



                                  __________ ___________________________
                                  JAMES GARDNER COLINS, Senior Judge
