             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Staton,                             :
                   Petitioner             :
                                          :
             v.                           :
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :   No. 1765 C.D. 2015
                  Respondent              :   Submitted: September 2, 2016


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                             FILED: January 4, 2017


             Before this Court is the petition of Shawn Staton for review of an
order of the Pennsylvania Board of Probation and Parole (Board) denying his
request for administrative relief and affirming the Board’s recalculation decision.
Also before this Court is the request of James L. Best, Esq. (Counsel) for leave to
withdraw as attorney for Mr. Staton.          For the following reasons, we deny
Counsel’s request to withdraw without prejudice and do not review the merits of
Mr. Staton’s appeal.
             On December 8, 2015, Counsel submitted a petition for leave to
withdraw as appointed counsel for Mr. Staton along with a no-merit letter. In
instances where there is no constitutional right to counsel,

      counsel seeking to withdraw from representation of a petitioner
      seeking review of a determination of the Board must provide a “no-
      merit” letter which details “the nature and extent of [the attorney’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)). Where there is a constitutional right to
counsel, counsel seeking to withdraw from representation of a parolee in an appeal
of a Board determination should file an Anders1 brief. This Court has held that, in
appeals from determinations revoking parole, a constitutional right to counsel
arises where a parolee raises 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 Bd. of Prob. & Parole, 977 A.2d 19, 25–26 (Pa. Cmwlth.
2009) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).
                Instantly, Mr. Staton admits that he violated his parole, and the record
contains no suggestion that there are substantial reasons that justified or mitigated
his parole violation and that make revocation inappropriate. Further, the issues
Mr. Staton raises are not complex or difficult to develop. Thus, Mr. Staton does
not have a constitutional right to counsel, and Counsel appropriately filed a no-
merit letter seeking to withdraw as Mr. Staton’s representation.
                However, counsel seeking to withdraw must also satisfy certain
procedural and substantive requirements. Procedurally, counsel must (1) notify the


      1
          See Anders v. State of California, 386 U.S. 738 (1967).


                                                2
court and the parolee of his belief that the appeal is meritless and of his intent to
withdraw; (2) provide a no-merit letter to the court and the parolee which includes
any matter in the record that could arguably support the parolee’s appeal; and (3)
advise the parolee of “his right to retain new counsel” or proceed pro se. See
Hughes, 977 A.2d at 22 (citing Commonwealth v. McClendon, 434 A.2d 1185,
1186–87 (Pa. 1981)). Substantively, counsel’s no-merit letter must detail “the
nature and extent of [the attorney’s] review and list[s] each issue the petitioner
wished to have raised, with counsel’s explanation of why those issues are
meritless.” Zerby, 964 A.2d at 961. If these requirements are satisfied, we must
conduct our own review of whether the issues are meritless. Id.
             While Counsel notified Mr. Staton of his request to withdraw,
furnished Mr. Staton with a copy of the no-merit letter, and advised Mr. Staton of
his right to retain new counsel or proceed pro se, Counsel’s no-merit letter lacks
the requisite substantive content.
             In his pro se petition for administrative review, Mr. Staton raised
three issues for which he sought review by this Court: (1) that the Board does not
have authority to alter his judicially-imposed sentence beyond his original
maximum term; (2) that the Board “unilaterally breached” Mr. Staton’s “contract”
with the Court of Common Pleas of Bucks County, as his initial sentence was
entered into pursuant to a plea agreement; and (3) that his sentence was increased
in violation of the Cruel and Unusual Punishment and Double Jeopardy Clauses of
the United States and Pennsylvania Constitutions.        (Certified Record at 70.)
Counsel, however, identifies the issue on appeal as challenging the Board’s
recalculation of Mr. Staton’s maximum date without adding credit for street time,
or challenging the forfeiture of Mr. Staton’s street time. Motion to Withdraw at 7-



                                         3
8. As such, Counsel has failed to address all arguments Mr. Staton wished to have
raised.
             Accordingly, we deny Counsel’s petition to withdraw without
prejudice. Counsel has thirty days to either file an amended petition for leave to
withdraw, along with a no-merit letter adequately addressing each of the issues
raised in Mr. Staton’s petition for review, or to submit a brief on the merits.




                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




                                           4
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shawn Staton,                             :
                   Petitioner             :
                                          :
             v.                           :
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :   No. 1765 C.D. 2015
                  Respondent              :


                                     ORDER



             AND NOW, this 4th day of January, 2017, the Motion for Leave to
Withdraw as Counsel, filed by James L. Best, Esquire, is DENIED without
prejudice. Counsel is granted thirty days from the date of this order to either file a
renewed petition for leave to withdraw as counsel, along with a no-merit letter
addressing each of the issues raised in Shawn Staton’s Petition for Review, or to
submit a brief on the merits.



                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge
