         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adam Pittinger,                          :
                   Petitioner            :
                                         :
            v.                           :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 799 C.D. 2018
                  Respondent             :   Submitted: February 15, 2019



BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                      FILED: May 17, 2019

            Adam Pittinger (Pittinger) petitions for review from the May 11, 2018
order of the Pennsylvania Board of Probation and Parole (Board) denying Pittinger’s
request for administrative relief, which challenged the recalculation of his parole
violation maximum sentence date. Pittinger is represented by Michelle M. Alaskey,
Esquire (Counsel), who asserts that the appeal is without merit and seeks permission
to withdraw as counsel. For the reasons that follow, we grant Counsel’s application
for leave to withdraw as counsel and affirm the order of the Board.
              On November 24, 2014, Pittinger was released on parole from a state
correctional institution to the Community Corrections Center in Harrisburg
Pennsylvania (Harrisburg-CCC) and, at the time, had a maximum sentence date of
November 22, 2018. Certified Record (C.R.) at 9-11. Pittinger was released from
Harrisburg-CCC on February 19, 2015. Id. at 57. On August 7, 2015, Pittinger was
admitted to ADAPPT-Reading for drug and alcohol treatment. Id. at 57-58. On
June 27, 2016, Pittinger failed to report for his monthly parole visit so the Board
declared him delinquent effective the same date. Id. at 14 & 51.
             Between June 1, 2016 and September 1, 2016, the police filed several
new criminal complaints against Pittinger, C.R. at 16-39, and the Board detained
him pending disposition of his new criminal charges. Id. at 15. On December 16,
2016, the Board recommitted Pittinger as a technical parole violator to serve up to
six months’ backtime due to his delinquency with a parole violation maximum date
of January 8, 2019. Id. at 61-62. On May 3, 2017, Pittinger pled guilty to the
charges, was sentenced and returned to state custody. Id. at 113-14. Pittinger waived
his right to a revocation hearing and admitted to the criminal convictions, and the
Board, by decision mailed August 2, 2017, recommitted him to a state correctional
institution as a convicted parole violator to serve 36 months’ backtime concurrent to
his 6 months’ backtime as a technical parole violator. Id. at 183-84. The Board
recalculated his maximum sentence date to April 30, 2021. Id.
             On August 10, 2017, Pittinger filed a petition for administrative review
with the Board and explained:


             I’m not necessarily in dispute of the Board’s decision, I
             just wanted to clarify if this is to run concurrent with my
             new sentence. And, I was arrested on 8/13/16, so I have
             been incarcerated about 1 year, after being out for nearly
             2 years. It appears that I wasn’t given credit for my current
             incarceration (from 8/13/16 at Berks County Prison.[sic]
             Also there were mitigating circumstances, but mainly I
             would like to confirm that the computation is correct and
             that it is concurrent with my new sentence. I currently have
             a hearing on 9/18/17 which may modify my sentence or

                                          2
                vacate it. I’m also contacting the Montgomery County
                P[ublic] D[efender] to help me if needed. Thank you.


C.R. at 187. The Board denied Pittinger’s request for relief explaining:


                Because you question the relationship between your new
                state term and your original sentence, your petition is a
                request for administrative review of the board decision
                mailed August 2, 2017 (recorded 07/21/2017). After
                further review of your case, it was determined that there is
                no indication that the Board failed to properly recalculate
                your maximum date and your request for relief is denied.
                Also, your new state sentences are to be served
                consecutively to your original state sentence with your
                original sentence to be served first. 61 Pa. C.S. §
                6138(a)(5).
Id. at 190.
                Pittinger petitioned this Court for review1 and filed a motion requesting
the appointment of counsel, which this Court granted. Pittinger, through Counsel,
filed an amended petition for review and the Board filed the certified record.
Thereafter, Pittinger’s court-appointed counsel filed an application for leave to
withdraw as counsel and a Turner2 letter (no-merit letter) wherein Counsel explained
that she is “convinced that [Pittinger’s] arguments are wholly frivolous.” Counsel’s
No-Merit Letter dated 10/24/18 at 1 (No-Merit Letter).3

       1
         Our review is limited to determining whether necessary factual findings are supported by
substantial evidence, whether any constitutional rights were violated and whether any errors of
law were committed. 2 Pa.C.S. § 704; Price v. Pa. Bd. of Prob. & Parole, 117 A.3d 362, 364 n.4
(Pa. Cmwlth. 2015).
       2
           Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
       3
        Pittinger’s right to counsel arises pursuant to Section 6(a)(10) of the Public Defender Act,
Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10) and therefore a no-merit

                                                 3
                When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if counsel satisfies the following
requirements: (i) she must notify the petitioner of the request to withdraw; (ii) she
must furnish the petitioner with a copy of a no-merit letter; and (iii) she must advise
the petitioner of his right to retain new counsel and to raise any new points he might
deem worthy of consideration. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d
66, 69 (Pa. Cmwlth. 2013); Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 22
(Pa. Cmwlth. 2009). The no-merit letter must detail: (i) the nature and extent of the
counsel’s review; (ii) each issue the petitioner wished to have raised; and (iii)
counsel’s explanation as to why those issues are meritless. Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth.
2009). A no-merit letter must include “substantial reasons for concluding that” a
petitioner’s arguments are without merit. Zerby, 964 A.2d at 962. Once appointed
counsel fully complies with these requirements to withdraw, the Court
independently reviews the merits of the petitioner’s claims. Id. at 960.

letter is appropriate. Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009).
An Anders Brief, pursuant to Anders v. California, 386 U.S. 738 (1967), is required where the
petitioner raises a constitutional right to counsel and, to do so, the petitioner must raise 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 26. The principal distinction between a no-merit letter and an Anders Brief
is the standard of review applied to the issues on appeal. Miskovitch v. Pa. Bd. of Prob. & Parole,
77 A.3d 66, 69 (Pa. Cmwlth. 2013). In a no-merit letter, the standard is “lack of merit,” and in an
Anders Brief, the standard is the “slightly more rigorous frivolousness standard,” which requires
“a determination that the appeal lacks any basis in law or fact.” Id. at 69-70. Here, we apply the
lack of merit standard.

                                                   4
               Here, Counsel met the technical requirements to withdraw. On October
24, 2018, Counsel served Pittinger with a copy of the application for leave to
withdraw as counsel and the no-merit letter as evidenced by the certificate of service
attached to the application and no-merit letter. See Certificate of Service attached to
10/24/18 Application for Leave to Withdraw as Counsel. In the no-merit letter,
Counsel advised Pittinger that “he has a right to obtain private counsel or proceed
pro se and a right to file a brief in support on his own behalf.” No-Merit Letter at
13. On November 1, 2018, Counsel filed a Certificate of Service with this Court
certifying that she served Pittinger with a copy of this Court’s October 29, 2018
order by first class mail. The October 29, 2018 order gave Pittinger 30 days to obtain
substitute counsel at his own expense or to file a brief on his own behalf in light of
Counsel’s request to withdraw. Upon review of the substance of the no-merit letter,
Counsel analyzed Pittinger’s issues, explained why each lacks merit, and cited law
to support her conclusion.              Therefore, Counsel having met the technical
requirements to withdraw, we now independently review the merits of Pittinger’s
claims.
               Before this Court,4 Pittinger seeks credit for time spent in the
Harrisburg-CCC and the ADAPPT program, claiming that he was not at liberty on
parole during those stays because the conditions at the facilities were equivalent to
incarceration. Pittinger’s Brief at 1-3. See Cox v. Pa. Bd. of Prob. & Parole, 493


       4
         In response to our October 29, 2018 order, Pittinger filed a brief, pro se, with this Court.
In his Brief, Pittinger provided that with respect to his sentence credit challenge, “[c]ounsel has
apparently assessed the mathematical calculations made by the [Board] and has deemed them to
be correct. In light of this, I am withdrawing those particular points of argument.” Pittinger’s
Brief at 1. Pittinger further provided that “I am requesting that mitigating circumstances, as
mentioned in Administrative Review Appeal, which includes warranted time credit to be applied
for times spent in facilities/programs where I was not “at liberty” and where under confinement,
be considered, and have merit.” Id.
                                                 5
A.2d 680, 683 (Pa. 1985) (holding that a parolee could be entitled to credit for time
spent in a treatment program if the restrictions on his liberty while participating in
the program were the “equivalent of incarceration”) (hereinafter, Cox issue). To
support his argument, Pittinger asserts, in part, that Harrisburg-CCC is a “locked
facility with alarms, cameras, metal detectors at the doors and the staff consists of
trained corrections officers employed by the Commonwealth of Pennsylvania.”
Pittinger’s Brief at 2. Pittinger further asserts, in relevant part, that he was driven to
ADAPPT in Reading for “an inpatient program” and that “[t]here was absolutely no
leaving of this facility during this intensive inpatient program of approximately 90
days.” Id. Upon review, we conclude that Pittinger waived this argument as he
failed to raise it before the Board.
             It is well settled that the failure to raise an issue before the Board results
in a waiver of that issue and precludes this Court from review. 2 Pa.C.S. § 703(a)
(providing that a “party may not raise upon appeal any . . . question not raised before
the agency.”); Pa.R.A.P. 1551(a) (providing that “[n]o question shall be heard or
considered by the court which was not raised before the government unit”); Price v.
Pa. Bd. of Prob. & Parole, 117 A.3d 362, 364-65 (Pa. Cmwlth. 2015). This Court
may only consider issues not raised before the Board if the issue involves questions
concerning: (1) the validity of a statute; (2) the jurisdiction of the agency over the
subject matter of the adjudication; or (3) issues that the Court believes that Pittinger
could not have raised before the Board through the exercise of due diligence.
Pa.R.A.P. 1551(a)(1)-(3); Price, 117 A.3d at 365.
             In his administrative remedies form challenging the Board’s August 2,
2017 decision recommitting him as a convicted parole violator and recalculating his
maximum sentence date, Pittinger does not, in any way, mention that he sought


                                            6
credit for time spent while at the Harrisburg-CCC or the ADAPPT program. C.R.
187. Because Pittinger did not raise the issue that his time spent at the Harrisburg-
CCC or the ADAPPT program was the equivalent of incarceration, the Board did
not schedule an evidentiary hearing to gather facts regarding the characteristics of
these programs, which would allow for an appellate review of this issue. See Cox,
493 A.2d at 683 (explaining that the parolee has the burden to develop a factual
record and persuade the Board that the program he attended was the “equivalent of
incarceration”); Harden v. Pa. Bd. of Prob. & Parole, 980 A.2d 691, 693-94 (Pa.
Cmwlth. 2009) (explaining that after the Board recommitted the parolee as a
convicted parole violator and recalculated his maximum sentence date, the parolee
appealed to the Board arguing that he should have received credit for time spent at
a facility, and the Board subsequently conducted an evidentiary hearing on the
matter). As addressed by Pittinger’s Counsel in her no-merit letter, Pittinger waived
his Cox argument, as he did not raise the issue before the Board and the record is
“completely void of any substantive information regarding the programs . . . .” No-
Merit Letter at 9-10.
             Further, Pittinger does not present an exception to the waiver rule to
enable this Court to consider this issue. Pittinger is not challenging the validity of
the Prisons and Parole Code, 61 Pa.C.S. §§ 101-6309, or the jurisdiction of the
Board.   See Price, 117 A.3d at 365 (explaining that “the Board clearly has
jurisdiction in parole matters to determine whether a parolee’s new criminal
conviction warrants recommitment and a recalculation of a maximum sentence
date”). Additionally, Pittinger could have raised his Cox challenge to the Board
when he filed his administrative remedies form as he had already participated in the
Harrisburg-CCC and the ADAPPT program at that time and knew the Board was


                                          7
not giving him credit for that time. Consequently, Pittinger has not properly
preserved this issue for consideration on appeal and we cannot address it. See id.
            Accordingly, Counsel’s application for leave to withdraw is granted
and we affirm the order of the Board.



                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge




                                          8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adam Pittinger,                       :
                  Petitioner          :
                                      :
            v.                        :
                                      :
Pennsylvania Board of                 :
Probation and Parole,                 :   No. 799 C.D. 2018
                  Respondent          :


                                 ORDER


            AND NOW, this 17th day of May, 2019, Michelle M. Alaskey,
Esquire’s, Application for Leave to Withdraw is GRANTED, and the May 11, 2018
order of the Pennsylvania Board of Probation and Parole is AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
