           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Scantling,                            :
                            Petitioner       :
                                             :
               v.                            :     No. 2701 C.D. 2015
                                             :     Submitted: June 24, 2016
Pennsylvania Board of                        :
Probation and Parole,                        :
                            Respondent       :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: September 15, 2016



               Petitioner Thomas Scantling (Scantling) petitions for review of an
order of the Pennsylvania Board of Probation and Parole (Board). The Board
denied Scantling’s administrative appeal of the Board’s August 14, 2015 order,
which formally recommitted Scantling as a convicted parole violator and
recalculated        his   maximum        release     date.      Scantling’s   counsel,
Nicholas E. Newfield, Esquire (Counsel), filed a motion for leave to withdraw as
counsel. Counsel asserts that the issues raised by Scantling in his petition for
review are frivolous and lacking in any merit. We now deny Counsel’s motion for
leave to withdraw and provide Counsel with an opportunity to submit an amended
request for leave to withdraw.1
               When no constitutional right to counsel is involved in a probation and
parole case, an attorney seeking to withdraw from representing a prisoner may file
a no-merit letter, as compared to an Anders brief.2 In Hughes v. Pennsylvania
Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this Court held
that a constitutional right to counsel in a parole and probation matter arises only
when the prisoner’s case includes:
               [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.




       1
         Because we are denying Counsel’s petition but permitting him to file an amended
no-merit letter, we will not provide a recitation of the facts involved in this matter, other than to
note generally that Scantling was on parole when he was arrested and charged with new crimes
in August 2014. The Board lodged a warrant to commit and detain Scantling at that time.
       2
          In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court held
that, in order for a criminal defendant’s counsel to withdraw from representing his client in an
appeal, counsel must assert that the case is completely frivolous, as compared to presenting an
absence of merit. An appeal is completely or “wholly” frivolous when there are no factual or
legal justifications that support the appeal. Craig v. Pennsylvania Bd. of Prob. and
Parole, 502 A.2d 758, 761 (Pa. Cmwlth. 1985).                However, in Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), our Supreme Court held that in matters that are collateral to an
underlying criminal proceeding, such as parole matters, a counsel seeking to withdraw from his
representation of a client may file a “no-merit” letter that includes information describing the
extent and nature of the counsel’s review, listing the issues the client wants to raise, and
informing the Court of the reasons why counsel believes the issues have no merit.



                                                 2
Hughes, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778 (1973)).
The record in this matter contains no suggestion by Scantling that he did not
commit the crime for which he received a new criminal conviction, nor does
Scantling suggest any reasons constituting justification or mitigation for his new
criminal conviction. Thus, Scantling only has a statutory right to counsel under
Section 6(a) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as
amended, 16 P.S. § 9960.6(a)(10).
               In order to satisfy the procedural requirements associated with
no-merit letters, counsel must: (1) notify the parolee that he has submitted to the
Court a request to withdraw; (2) provide the parolee with a copy of counsel’s
no-merit letter; and (3) advise the parolee that he has the right to obtain new
counsel and to submit to the Court a brief of his own, raising any arguments that he
may believe are meritorious.3              Reavis v. Pennsylvania Bd. of Prob. and
Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006). In seeking to withdraw, this Court
has consistently required an attorney to include the following descriptive
information in a no-merit letter: (1) the nature and extent of counsel’s review of
the case; (2) the issues the parolee wants to raise; and (3) the analysis counsel used
in reaching his conclusion that the issues are meritless.                     Zerby v. Shanon,
964 A.2d 956, 961 (Pa. Cmwlth. 2009).
               Consequently, before considering whether Scantling’s appeal has no
merit and proceeding to make an independent review of the merits of the case, we


       3
          Counsel served Scantling with his petition for leave to withdraw and his brief. In a
letter addressed to Scantling, counsel advised Scantling of his right to retain counsel and to file a
brief on his own behalf. Thus, counsel has complied with these requirements.



                                                 3
must first evaluate Counsel’s no-merit letter to determine whether it complies with
the requirements for withdrawal applications. Counsel’s no-merit letter adequately
summarizes Scantling’s conviction and parole history and his conviction following
the grant of parole. In his administrative appeal, Scantling alleged that the Board
failed to conduct a timely revocation hearing and improperly relied on hearsay
evidence in finding that Scantling violated his parole. (C.R. at 97.) Further,
Scantling argued that the Board erred in its calculation of his maximum date. (Id.)
Specifically, Scantling alleged that the Board failed to give him credit for time
served due to the Board’s detainer, where Scantling was granted unsecured bail on
his most recent charges. (Id.)
             Counsel, however, does not adequately address the issues raised by
Scantling. Regarding the timeliness and hearsay issues, Counsel, in his no-merit
letter, stated the following:
             You allege that the Board failed to conduct a timely
             revocation hearing in the above matter; and the Board
             improperly relied upon hearsay and/or other inadmissible
             evidence in relation to the revocation hearing that was
             held. The Board’s [r]evocation hearing was held on
             May 15, 2015. You alleged that the conviction date on
             the new offense, DUI, was November 13, 2104 (sic).
             Review of said record indicates that the (sic) you were
             sentenced by the Philadelphia Municipal Court on
             February 24, 2015. The effective date of this sentence as
             indicated in the sentence as February 24, 2015, with
             immediate parole to follow. Thus the minimum sentence
             of 72 hours would have been completed on
             February 27, 2015. At the [r]evocation hearing you
             alleged     that    the     conviction      date     was
             November 13, 2014, which appears to be the date that the
             plea was entered, in which the Philadelphia Municipal
             Judge ordered a presentence investigation be prepared to
             assist in sentencing that was scheduled on
             February 24, 2015.

                                        4
             Once again, through counsel, you objected to the timing
             of the revocation hearing. It appears from the reproduced
             record that the appropriate documentation was presented
             at the revocation hearing to support the conviction. The
             parole agent provided testimony that the verification was
             not received until April 27, 2015. Furthermore, you
             acknowledged the conviction at the revocation hearing.

(No-merit letter at 1-2; Internal citations omitted).
             Counsel references Scantling’s claims of error but merely alludes that
those claims of error are without merit.           Counsel provided factual details
surrounding Scantling’s claims, yet did not provide a legal discussion citing case
law or statutory provisions that would deem Scantling’s claims to be meritless.
This legal discussion is required of Counsel, even if the reason that supports the
Board’s decision is widely known and patently obvious. This type of explanation
and/or discussion assists the Court in its evaluation of the merit (or lack thereof) of
Scantling’s claims regarding timeliness and the Board’s improper reliance on
hearsay evidence. Although all of these issues may ultimately prove to lack merit
of any kind, in order to satisfy the requirements set forth in Zerby, Counsel was
required to fully discuss those issues and why the applicable law does not provide
relief to Scantling. Consequently, we must deny Counsel’s petition for leave to
withdraw as counsel. Counsel has two options. Counsel may file an amended
no-merit letter that fully analyzes the issues Scantling has raised. Alternatively,
Counsel may submit a brief on the merits of the petition for review.
             Accordingly, we deny Counsel’s petition for leave to withdraw.




                                 P. KEVIN BROBSON, Judge

                                           5
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Scantling,                         :
                          Petitioner      :
                                          :
              v.                          :   No. 2701 C.D. 2015
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :
                          Respondent      :


                                       ORDER


              AND NOW, this 15th day of September, 2016, the motion for leave to
withdraw as counsel filed by Nicholas E. Newfield, Esquire, is DENIED. Counsel
shall submit either an amended no-merit letter or a brief on the merits of the
petition for review filed by Petitioner Thomas Scantling within thirty days of the
date of this order. If Counsel submits an amended no-merit letter, the Court will
again address that request along with the merits of the petition for review. If
Counsel submits a brief on the merits, Respondent may submit a revised brief, at
its discretion, but must do so within thirty days of the date Counsel files a brief on
the merits.




                                P. KEVIN BROBSON, Judge
