         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Sampson,                   :
                                   :
                        Petitioner :
                                   :
                 v.                : No. 978 C.D. 2016
                                   : Submitted: June 16, 2017
Pennsylvania Board of Probation    :
and Parole,                        :
                                   :
                        Respondent :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                     FILED: September 19, 2017


            Presently before this Court is the second application of Raymond D.
Roberts, Esquire, Assistant Public Defender for Montgomery County (Counsel) for
leave to withdraw as counsel for Jeffrey Sampson (Sampson). Sampson filed a
petition for review of the determination of the Pennsylvania Board of Probation
and Parole (Board) revoking his parole and recalculating his parole violation
maximum date.      Counsel again seeks leave to withdraw on the grounds that
Sampson’s petition for review is without merit. For the reasons that follow, we
deny Counsel’s application for leave to withdraw, without prejudice, and thus do
not reach the merits of Sampson’s petition for review.
            Sampson was sentenced to an aggregate term of incarceration of four
to eight years, with a minimum sentence date of December 10, 2011, and a
maximum sentence date of December 10, 2015. Certified Record (C.R.) at 1-2.
On June 21, 2012, the Board issued an order paroling Sampson, and he was
released from prison on August 15, 2012. C.R. at 10. On April 28, 2015, Sampson
was arrested in Northampton County on charges of simple assault and possession
of controlled substances with intent to deliver (PWID).        The Board issued a
warrant to detain Sampson the same day. C.R. at 15, 17. Sampson waived his
right to a detention hearing on May 20, 2015. He pleaded guilty to both offenses
and was sentenced to 12 months to 24 months’ confinement for the offense of
PWID and 3 to 6 months’ confinement for the simple assault charge, to be served
concurrently. C.R. at 78. On September 15, 2015, Sampson waived his right to a
parole revocation hearing and counsel, and he acknowledged his conviction for the
new offenses. C.R. at 64, 70-77, 81.
              By decision mailed on December 23, 2015, the Board revoked
Sampson’s parole and recommitted him as a convicted parole violator to serve 36
months’ backtime. The Board denied Sampson credit for the time he spent at
liberty on parole between August 16, 2012, and April 28, 2015, and recalculated
his parole violation maximum date to March 7, 2019. C.R. at 72, 84-87.
              On January 21, 2016, Sampson’s then-counsel filed an administrative
appeal on his behalf. C.R. at 88-89. Sampson subsequently filed a pro se brief in
support of his appeal on January 29, 2016, arguing, inter alia, that the Board’s
decision violated his constitutional rights, usurped the power of the sentencing
court, and illegally altered his sentence by denying him credit for the time he spent
in county custody following his arrest on April 28, 2015. C.R. at 97. By letter
dated March 9, 2016, Sampson advised the Board that he was no longer
represented by counsel and asked the Board to mail its decision directly to him.
C.R. at 93.


                                         2
               In its May 16, 2016 decision, the Board confirmed receipt of
correspondence from Sampson’s former counsel, Sampson’s pro se request for
relief, and his notification that he was no longer represented by counsel. The
Board denied Sampson’s administrative appeal, explaining that the recommitment
term imposed falls within the presumptive range and is not subject to challenge.1
The Board also referenced its authority under Section 6138(a)(2) of the Prisons and
Parole Code, 61 Pa. C.S. §6138(a)(2), to recommit Sampson as a convicted parole
violator without credit for time spent at liberty on parole.2 C.R. at 103-104.
               Sampson then filed a pro se petition for review with this Court,3
asserting that: (1) the Board erred in failing to appoint an attorney to represent him
during his administrative appeal; (2) the Board erred in calculating the 36-month
backtime sentence and in denying him any credit for the time at liberty on parole;
and (3) the Board erred in failing to order that his backtime sentence run

       1
          See Smith v. Pennsylvania Board of Probation and Parole, 574 A.2d 558, 561 (Pa.
1990) (holding that “the Board’s exercise of its discretion, within the reasonable parameters
reflected by the establishment of the presumptive range, must be upheld.”). The Board’s records
reflect that the presumptive range for recommitment based on the PWID conviction is 24 months
to 36 months, and the presumptive range for recommitment on the simple assault conviction is 9
months to 15 months, resulting in an aggregated range of 24 months to 51 months. C.R. at 72.

       2
         We recognize that Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S.
§6138(a)(2.1), affords the Board discretion to award a parolee who is recommitted as a convicted
parole violator credit for time spent at liberty on parole. See Pittman v. Pennsylvania Board of
Probation and Parole, 159 A.3d 466 (Pa. 2017) (holding that Section 6138(a)(2.1) requires the
Board to articulate the basis for its decision to grant or deny a convicted parole violator credit for
time spent at liberty on parole).

       3
          Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication was in accordance with law, and whether necessary findings
were supported by substantial evidence. Smith v. Pennsylvania Board of Probation and Parole,
81 A.3d 1091, 1093 n.1 (Pa. Cmwlth. 2013).


                                                  3
concurrently with the new sentence. Following Sampson’s application to proceed
in forma pauperis, we appointed Counsel, who subsequently filed an Anders4 brief
and a petition for leave to withdraw. By order dated December 16, 2016, we
denied Counsel’s petition and struck his first Anders brief, without prejudice.
Counsel has filed an amended Anders brief and a second petition for leave to
withdraw.
                When evaluating a petition for leave to withdraw as appointed counsel
in a challenge to a revocation decision, this Court’s first task is to determine
whether counsel satisfied the following procedural requirements: (i) notify the
inmate of the request to withdraw; (ii) provide the inmate with a copy of the
Anders brief or no-merit letter;5 and (iii) advise the inmate of his absolute right to
retain new counsel or raise any new points he might deem worthy of consideration.
Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 69 (Pa.
Cmwlth. 2013).
                In this appeal, Sampson had a statutory right to counsel, and Counsel
was only required to submit a no-merit letter in support of the petition to withdraw.
Id. Where a no-merit letter is sufficient but counsel has instead chosen to submit
an Anders brief, we apply the standard of whether the petitioner’s claims are
without merit, rather than whether they are frivolous. Id at 70. A no-merit letter
must set forth: (i) the nature and extent of counsel’s review of the case; (ii) each


       4
           Anders v. California, 386 U.S. 738 (1967).
       5
           A parolee’s right to counsel is either constitutional or statutory. Hughes v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth. 2009). When
this right is constitutional, counsel seeking to withdraw must file an Anders brief explaining the
frivolousness of the case; when this right is statutory, counsel may instead proceed with a no-
merit letter. Commonwealth v. Turner, 544 A.2d 928 (Pa. 1988).


                                                 4
issue that the inmate wishes to raise on appeal; and (iii) counsel’s explanation of
why each of these issues is meritless.              Id.   Only when these procedural
requirements are satisfactorily completed will we independently evaluate the case’s
lack of merit or frivolousness. Hughes v. Pennsylvania Board of Probation and
Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009).
              The record reflects that Counsel notified Sampson of the request to
withdraw and advised Sampson of his right to retain new counsel or raise any new
points he might deem worthy of consideration.               However, we conclude that
Counsel’s amended Anders brief does not sufficiently address all of the issues
Sampson raised in his petition for review.
              As to Sampson’s first issue, Counsel acknowledges that a parole
violator is entitled to representation at a parole revocation hearing and on appeal to
this Court, but does not address Sampson’s contention that the Board erred in
failing to appoint an attorney to represent him during his administrative appeal.
Instead, Counsel asserts that this Court, rather than the Board, has authority to
appoint counsel and in fact did so in this case. Counsel does not explain whether
Sampson’s right to representation extends to his administrative appeal,6 but
Counsel complains that Sampson fails to show prejudice or otherwise elaborate on
his bald assertion. Respectfully, such elaboration is the obligation of appointed
counsel, not his client.
              Sampson raises two issues concerning the recalculation of his parole
violation maximum sentence date, specifically challenging both (1) the denial of


       6
         Arguably, the question of whether there exists a right to counsel for Sampson’s
administrative appeal is moot, since the filing of Sampson’s administrative appeal was in fact
accomplished by Sampson’s prior counsel.


                                              5
credit for time he spent at liberty on parole and (2) the calculation of a date beyond
the expiration of his “judicially imposed maximum sentence date.” Petition for
Review at 2.      Counsel correctly notes that the 36-month recommitment term
imposed by the Board falls within the presumptive range associated with his
convictions and is not subject to challenge.            Smith.     Counsel also notes that
Sampson has no legal right to credit for time spent at liberty on parole, although
the Board has discretion to award such credit. Sections 6138(a)(1), (2), and (2.1)
of the Prisons and Parole Code, 61 Pa. C.S. §§6138(a)(1), (2), (2.1). However,
while Counsel recognizes that Sampson’s argument challenges the Board’s
authority to extend his maximum parole date, Counsel does not address Sampson’s
second argument, in which Sampson emphasizes that the Board does not have the
power to alter a judicially-imposed sentence and asserts that the Board’s decision
unlawfully exceeds the judicially-imposed maximum sentence date. Petition for
Review at 3.7
              Because Counsel’s Anders brief did not sufficiently address the issues
raised in Sampson’s petition for review, we cannot independently evaluate the case
on the merits. Accordingly, we deny Counsel’s petition for leave to withdraw,
without prejudice, and grant Counsel thirty days from the date of this order to


       7
          This argument appears to rest entirely on Sampson’s misapprehension that the
maximum date of his sentence, rather than the maximum length of his sentence, is controlling for
purposes of recalculating his parole violation maximum date from December 10, 2015, to March
7, 2019. This argument is persistently raised on appeals from Board decisions, despite the
Court’s numerous opinions explaining that when the Board imposes backtime, the Board “directs
a parolee to complete the original judicially-mandated sentence, and does not impose any
additional sentence on the parolee.” Epps v. Pennsylvania Board of Probation and Parole, 565
A.2d 214, 217 (Pa. Cmwlth. 1989) (emphasis added). See also Gundy v. Pennsylvania Board of
Probation and Parole, 478 A.2d 139, 141 (Pa. Cmwlth. 1984) (noting that the Board’s action in
recommitting a parolee “had no effect” upon the parolee’s judicially-imposed sentence).


                                               6
either file a renewed application to withdraw as counsel or submit a brief on the
merits of Sampson’s petition for review.




                                      MICHAEL H. WOJCIK, Judge




                                           7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Sampson,                   :
                                   :
                        Petitioner :
                                   :
                 v.                : No. 978 C.D. 2016
                                   :
Pennsylvania Board of Probation    :
and Parole,                        :
                                   :
                        Respondent :


                                    ORDER


             AND NOW, this 19th day of September, 2017, the Petition for Leave
to Withdraw as Counsel of Raymond D. Roberts, Esquire (Counsel) is hereby
denied without prejudice. Counsel is granted thirty (30) days from the date of this
order to either file a new application to withdraw or submit a brief on the merits of
Jeffrey Sampson’s petition for review.




                                         __________________________________
                                         MICHAEL H. WOJCIK, Judge
