           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sheldon I. Sealey,                       :
                          Petitioner     :
                                         :
                     v.                  :   No. 1639 C.D. 2017
                                         :   Submitted: June 15, 2018
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: August 23, 2018


      Sheldon I. Sealey petitions for review of the Decision of the Pennsylvania
Board of Probation and Parole (Board), mailed October 3, 2017, which denied his
administrative appeal from the revocation of his parole based on an April 30, 2012
conviction in New York. Brendan R. Ellis, Esquire (Counsel), who was appointed
by the Wayne County Public Defender to represent Sealey, petitions this Court for
leave to withdraw as counsel on the grounds that Sealey’s Petition for Review lacks
merit (Petition to Withdraw). After review, we grant Counsel’s Petition to Withdraw
and affirm the Board’s Decision.
      On June 16, 2008, while Sealey was serving a sentence of 4 to 10 years’
incarceration on convictions for possession with intent to deliver a controlled
substance (two counts), under Section 13(a)(30) of The Controlled Substance, Drug,
Device and Cosmetic Act, the Act of April 14, 1972, P.L. 233, as amended,
35 P.S. § 780-113(a)(30), and escape, under Section 5121(a) of the Crimes Code, 18
Pa. C.S. § 5121(a), the Board released Sealey on parole. At the time of Sealey’s
parole, 1802 days remained on his sentence. Because Sealey’s convictions in
Pennsylvania constituted violations of his existing parole in New York and New
York had lodged a detainer against him, he was paroled to New York. On June 18,
2009, New York paroled Sealey. The Board, upon learning of Sealey’s release,
transferred its parole supervision of Sealey to New York.
      On April 7, 2011, the New York City Police Department arrested Sealey, and
he was charged with first-degree criminal sexual act and first-degree sexual abuse.
Critically, Sealey was detained in jail at Riker’s Island on $100,000/$100,000
bond/bail, which he did not satisfy. (Certified Record at 25, 27, 45.) Once the Board
learned of Sealey’s arrest, the Board, on June 14, 2011, lodged a detainer against
Sealey for his arrest. On April 30, 2012, Sealey pleaded guilty in Kings County
Supreme Court to attempted first-degree criminal sexual act, and, on May 31, 2012,
was sentenced to 5 years’ imprisonment with 10 years of post-release supervision.
On August 15, 2012, New York informed the Board of Sealey’s New York
conviction.
      On April 4, 2016, New York paroled Sealey to the Board on its detainer. On
June 27, 2016, a hearing on the revocation of Sealey’s parole was held during which
he admitted he had been convicted in New York of attempted first-degree criminal
sexual act. By Decision mailed July 29, 2016, the Board revoked Sealey’s parole




                                         2
and directed him to complete his backtime of 1450 days,1 resulting in a new
maximum release date of March 24, 2020.
      Sealey filed an administrative appeal from the Board’s Decision revoking his
parole. The Board, in a Decision mailed on October 3, 2017, rejected Sealey’s claim
that he should have served the time remaining on his Pennsylvania convictions
before the sentence on his New York conviction, concluding that Sealey did not
become available to serve the remainder of his Pennsylvania sentence until April 4,
2016, when New York paroled Sealey to the Board on its detainer. Thus, the Board
affirmed its Decision revoking Sealey’s parole.
      Sealey then filed his Petition for Review with this Court, arguing that the
Board did not comply with Section 6138(a)(5.1) of the Prisons and Parole Code, 61
Pa. C.S. § 6138(a)(5.1), because he served his New York sentence first when he
should have served the balance on his Pennsylvania sentence first. Therefore, Sealey
claims, his revocation hearing was untimely.
      On November 16, 2017, this Court appointed the Public Defender of Wayne
County to represent Sealey. Following Counsel’s appointment, he filed the Petition
to Withdraw on the ground that the Petition for Review lacks merit. In support of
Counsel’s Petition to Withdraw, he has attached a letter dated April 3, 2018 (Turner2
letter), sent to Sealey and the Board, along with the Petition to Withdraw, detailing
his review of the certified record, correspondence from Sealey, and relevant case
law. Counsel noted in the Turner letter that the only issue Sealey is raising on appeal
is whether his revocation hearing was timely. Counsel summarized the facts of
Sealey’s case and, after analyzing the relevant case law, concluded that Sealey’s
revocation hearing was timely because once Sealey was arrested in New York and

      1
          Sealey received a credit of 352 days.
      2
          Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).


                                             3
remained in New York’s custody, he was not available to the Board until April 2016,
when New York released him from his New York sentence. Having concluded that
Sealey’s Petition for Review lacked merit, Counsel informed Sealey that he had the
right to hire another attorney or file a brief on his own behalf. Counsel also served
an April 12, 2018 order of this Court informing Sealey that he could obtain substitute
counsel at his own expense or file a brief on his own behalf, neither of which he has
done.
        Before appointed counsel may withdraw from representation in a case in
which the right to counsel does not derive from the United States Constitution, such
as here, the Turner or no-merit letter must contain: (1) the nature and extent of
counsel’s review; (2) the issues the petitioner wishes to raise; and (3) counsel’s
analysis in concluding that the petitioner’s appeal is without merit. Commonwealth
v. Turner, 544 A.2d 927, 928 (Pa. 1988); Hughes v. Pa. Bd. of Prob. & Parole, 977
A.2d 19, 25 (Pa. Cmwlth. 2009). In addition, counsel must send the petitioner a
copy of the Turner letter, “a copy of counsel’s petition to withdraw,” and a statement
advising the petitioner of his right to proceed by new counsel or pro se. Zerby v.
Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009).            Once counsel satisfies the
procedural requirements of Turner, this Court will “conduct its own review of the
merits of the case.” Id. (citation omitted).
        Here, Counsel has complied with the procedural requirements of Turner. As
we have set forth, Counsel has explained the nature and extent of his review of the
record, addressed the issue Sealey wishes to raise, and provided a thorough analysis
of that issue and his reasons for concluding that this issue lacks merit. Counsel
served copies of both his Petition to Withdraw and his Turner letter on Sealey and
the Board. In Counsel’s Turner letter and again pursuant to our April 12, 2018 order,



                                           4
Counsel informed Sealey that he could retain substitute counsel or file a brief on his
own behalf. Thus, Counsel has satisfied the procedural requirements of Turner.
       We must now conduct our own review to determine whether, as Counsel has
concluded, Sealey’s Petition for Review is, in fact, without merit.3 Hughes, 977
A.2d at 25. Again, Sealey claims that his revocation hearing was untimely because
it was not held for approximately 49 months after he was convicted in New York of
attempted first-degree criminal sexual act, owing to his serving his New York
sentence first. (Petition for Review, Conclusion.)
       Under Section 71.4(1) of the Board’s regulations, “[a] revocation hearing
shall be held within 120 days from the date the Board received official verification
of the plea of guilty . . . at the highest trial court level . . . .” 37 Pa. Code § 71.4(1).
Further, under Section 6138(a)(5.1) of the Prisons and Parole Code, “[i]f the parolee
is sentenced to serve a new term of total confinement . . . by a court of another
jurisdiction because of a verdict or plea under paragraph (1), the parolee shall serve
the balance of the original term before serving the new term.”                    61 Pa. C.S.
§ 6138(a)(5.1). However, the requirement that a hearing be held within 120 days of
official verification of the guilty plea is subject to the exception that “[i]f a parolee
is confined outside the jurisdiction of the Department of Corrections, such as
confinement out-of-State, . . . the revocation hearing shall be held within 120 days
of the official verification of the return of the parolee to a State correctional facility.”
37 Pa. Code § 71.4(1)(i). If a parolee is in the custody of another state, “the Board
may lodge its detainer but other matters may be deferred until the parolee has been
returned to a State correctional facility in this Commonwealth.” 37 Pa. Code

       3
         We review the action of the Board for “whether the decision was supported by substantial
evidence, whether an error of law occurred or whether constitutional rights were violated.” Brown
v. Pa. Bd. of Prob. & Parole, 184 A.3d 1021, 1023 n.5 (Pa. Cmwlth. 2017).


                                               5
§ 71.5(a). When determining the timeliness of a revocation hearing, a delay owing
to “[t]he unavailability of a parolee” “shall be excluded.” 37 Pa. Code § 71.5(c)(1).
In short, when a parolee is in the custody of another state, confined in another state’s
facility, or is otherwise unavailable, “the Board’s duty to hold a revocation hearing,
or take other action beyond issuing a detainer, is deferred until the parolee is returned
to a [State Correctional Institution] regardless of when the Board received official
verification of a parolee’s new conviction.” Brown v. Pa. Bd. of Prob. & Parole,
184 A.3d 1021, 1025 (Pa. Cmwlth. 2017).
      Here, as Counsel concluded, Sealey was not available to the Board at the time
he pleaded guilty and was sentenced in New York, as well as when the Board
received official notification of his New York conviction. Following Sealey’s arrest,
he was detained in jail at Riker’s Island and was unable to make bail throughout the
criminal proceedings in New York. Thus, because Sealey was detained in a New
York jail, the Board lacked the ability to obtain Sealey from the custody of New
York in order to hold a revocation hearing. Id. at 1027. This is unlike Fumea v.
Pennsylvania Board of Probation and Parole, 147 A.3d 610 (Pa. Cmwlth. 2016),
upon which Sealey relies. There, the Board was aware of the parolee’s conviction
on a federal charge of conspiracy by virtue of the presence of the Board’s agent at
the parolee’s sentencing hearing in federal court. Id. at 612, 619-20. Further, the
parolee was available to the Board at the time of his conviction and sentencing in
federal court because he was free on bond. Id. at 615-16. In this case, though,
because Sealey was detained in jail at Riker’s Island following his arrest, was unable
to post bail, and remained in the custody of New York throughout the criminal
proceedings and the service of his New York sentence, Sealey was not available to
the Board until April 4, 2016, when New York paroled him from his New York



                                           6
sentence. The hearing on the revocation of Sealey’s parole, held on June 27, 2016,
a mere 84 days after Sealey became available to the Board, was, thus, timely. Brown,
184 A.3d at 1028.
      Therefore, since there is no merit to Sealey’s claim that his revocation hearing
was untimely, and Counsel has otherwise satisfied the procedural requirements of
Turner, we grant Counsel’s Petition to Withdraw and affirm the Board’s Decision.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                          7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sheldon I. Sealey,                        :
                          Petitioner      :
                                          :
                     v.                   :   No. 1639 C.D. 2017
                                          :
Pennsylvania Board of Probation           :
and Parole,                               :
                        Respondent        :


                                       ORDER


      NOW, August 23, 2018, the Petition for Leave to Withdraw as Counsel filed
by Brendan R. Ellis, Esquire, is GRANTED. The Decision of the Pennsylvania
Board of Probation and Parole, mailed October 3, 2017, is AFFIRMED.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
