        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wayne Castetter,                        :
                         Petitioner     :
                                        :
                   v.                   :   No. 892 C.D. 2018
                                        :   Submitted: February 8, 2019
Pennsylvania Board of Probation and     :
Parole,                                 :
                        Respondent      :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                        FILED: May 7, 2019


      Wayne Castetter (Castetter) petitions for review of the May 30, 2018 Order
of the Pennsylvania Board of Probation and Parole (Board). This Order dismissed
as untimely Castetter’s April 21, 2017 Request for Administrative Remedy and
February 25, 2018 correspondence, challenging the Board’s Decision mailed
February 13, 2014, recommitting him as a convicted parole violator (CPV),
imposing a period of backtime, and recalculating his parole violation maximum
date. Castetter is represented by Jessica A. Fiscus, Esquire (Counsel), of the Erie
County Public Defender’s Office.      Counsel has filed a Petition for Leave to
Withdraw as Counsel (Application to Withdraw) and an Anders1 Brief, which are
based on her conclusion that the issue raised in Castetter’s Petition for Review is
without merit and is wholly frivolous.              For the following reasons, we grant
Counsel’s Application to Withdraw and affirm the Board’s Order.
      In December 2003, the Lackawanna County Court of Common Pleas (trial
court) sentenced Castetter to a term of imprisonment of 5 years, 6 months to 11
years for robbery and a consecutive term of 6 months to 1 year for unsworn
falsifications to authorities (Pennsylvania Sentence). (Certified Record (C.R.) at
1.) Thereafter, the State of New York (New York), in November 2006, sentenced
Castetter to a term of imprisonment of 4 years, 6 months to 9 years for a drug
offense and 7 years for robbery (New York Sentence), with the underlying conduct
having occurred in 2003.            Castetter was to serve the New York Sentence
concurrently with the Pennsylvania Sentence. Castetter’s aggregate sentence was 6
to 12 years of imprisonment with a minimum date of April 16, 2009, and a
maximum date of April 16, 2015.
      The Board paroled Castetter from the Pennsylvania Sentence by Board
Decision recorded on March 6, 2009, and he was released to New York’s detainer
sentences on July 7, 2009. New York released Castetter on parole on December
10, 2010, with a post-release supervision maximum date of December 10, 2015.
On October 17, 2012, the Syracuse Police Department arrested Castetter on
charges of burglary and criminal mischief related to an October 16, 2012 burglary
of a store. (Id. at 35-36.) The burglary charge was dismissed, and, on December
3, 2012, a New York Court sentenced Castetter to one year of imprisonment for
criminal mischief, to run concurrently with his prior parole sentence. (Id. at 46.)

      1
          Anders v. California, 388 U.S. 924 (1967).

                                                2
      Consequently, the Board issued a Warrant for Castetter’s arrest on February
1, 2013, he was available to the Board on October 17, 2013, and he was returned to
the custody of the Department of Corrections (Department) on October 19, 2013.
(Id. at 47-48, 76.) Castetter waived his right to a panel hearing and a revocation
hearing, as well as his right to be represented by counsel. Castetter acknowledged
on December 9, 2013, that he was convicted of criminal mischief in violation of
his parole.     By Decision mailed February 13, 2014, the Board recommitted
Castetter as a CPV, directed that he serve 12 months of backtime, and recalculated
his parole violation maximum date from April 16, 2015, to July 27, 2019,
reflecting that the Board did not give Castetter credit for his time spent at liberty on
parole. (Id. at 79.) In its Order to Recommit, the Board made the following
calculations: Castetter had 2109 days remaining on his Pennsylvania Sentence
when he was released by the Board on parole on July 7, 2009; he was not entitled
to any confinement credit or backtime credit; and adding 2109 days to Castetter’s
return to custody date of October 17, 2013, his new parole violation maximum date
was July 27, 2019. (Id. at 76.)
      On March 13, 2014, Castetter filed an Administrative Appeal to the Board’s
February 13, 2014 Decision. Therein, Castetter challenged the 12 months of
backtime the Board imposed based upon his most recent New York conviction.
(Id. at 81-82.) Castetter argued the backtime exceeded the presumptive range for
criminal mischief, and the Board did not provide written justification for its
decision.     Castetter did not check the box associated with a sentence credit
challenge or otherwise indicate he disagreed with the Board’s recalculation of his
maximum sentence.        Following the Board’s decision denying reparole on
September 9, 2014, which established a new parole eligibility date, the Board


                                           3
dismissed Castetter’s Administrative Appeal as moot by decision mailed on
September 17, 2014.
      The Board reparoled Castetter via decision dated April 21, 2015 and
released him to the Wernersville Community Corrections Center on June 15, 2015.
On October 29, 2015, New York advised the Board that Castetter violated the
conditions of his parole on September 24, 2015, by testing positive for a variety of
illegal substances, which New York considered a “significant” violation. (Id. at
100, 102.) New York’s parole officials assessed 15 months of “delinquent time”
for the violation or Castetter could choose to return to supervision following his
completion of a 90-day drug treatment program. (Id. at 112, 116.) Thereafter,
Castetter was in and out of custody in New York and Pennsylvania between 2016
and 2018 as a result of various violations of the terms of his parole.2
      While in a New York prison, Castetter filed the April 21, 2017 Request for
Administrative Remedy with the Board, in which he appealed the Board’s
February 13, 2014 Decision. (Id. at 185.) Therein, Castetter indicated that he was
appealing on the following grounds:                   “Violation of Constitutional Law”;
“Recommitment Challenge”; and “Other.” (Id.) He argued the Board lacked the
authority to change the judicially imposed maximum sentence, the sentence credit
and order of sentence provisions had to be recalculated to reflect the original
maximum sentence order by the trial court, and the terms and conditions of parole
were an illegal contract. (Id. at 186-89.) Castetter sent additional correspondence
to the Board, dated February 25, 2018, challenging the Board’s time calculation
and recalculation of his parole violation maximum sentence on the basis that he


      2
          This history is reflected in pages 119 to 184 of the Certified Record.

                                                  4
believed he should not have lost his street time for “the time that [the Board] had a
Warr[a]nt lodged against [him].” (Id. at 192-93.)
       By its Order mailed May 30, 2018, the Board responded to Castetter’s April
21, 2017 Request for Administrative Remedy and February 25, 2018
correspondence. (Id. at 194.) Concluding that Castetter was objecting to the
recalculation of his maximum date, the Board considered these documents to be a
Petition for Administrative Review of its February 13, 2014 Decision. Citing its
regulation at 37 Pa. Code § 73.1(b), which requires that petitions for administrative
review be received by the Board within 30 days of the mailing date of the decision
being challenged, the Board held that Castetter had until March 13, 2014, to object
to the February 13, 2014 Decision. Because Castetter’s current challenges were
filed after March 13, 2014, the Board dismissed them as untimely.
       Counsel filed, on Castetter’s behalf, a Petition for Review in this Court.3
Therein, Castetter asserted that the Board “erred in the re-calculation of his
maximum” date because the Board “did not afford him credit for time spent in a
New York Prison from 2009 until December of 2010.” (Petition for Review ¶ 6.)
The Board filed a Motion to Limit the Issue/Application for Stay (Motion),
requesting the Court limit the issue to timeliness and stay the proceedings,
including the filing of a certified record until the Motion is decided. Castetter filed
an Answer, in which Counsel objected she could not effectively represent Castetter
without having the opportunity to review his records. By Order dated August 20,
2018, this Court denied the Motion.

       3
         Our review in parole revocation cases “is limited to a determination of whether
necessary findings are supported by substantial evidence, [whether] an error of law was
committed, or whether constitutional rights of the parolee were violated.” Johnson v. Pa. Bd. of
Prob. & Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998).

                                               5
      On November 26, 2018, Counsel filed the Application to Withdraw averring
that, after making a conscientious examination of Castetter’s filings and
correspondence, the case law, and the certified record, she believed Castetter’s
appeal is frivolous. (Application to Withdraw ¶¶ 2-3.) In the Application, she
indicates she was filing an Anders Brief addressing the issue Castetter raised in the
Petition for Review, she had provided a copy of that brief to Castetter, and she had
advised him of his right to obtain new counsel and to raise, pro se, any additional
points he believes warrants the Court’s attention. (Id. ¶¶ 4-5; Attachment A to the
Application to Withdraw.)         Therefore, Counsel requested the Court to
independently review the record and grant her Application to Withdraw. There is
no indication in the record that Castetter has retained alternative counsel or that he
has filed anything reflecting additional issues he believes warrants judicial review.
Accordingly, we will consider Counsel’s Application to Withdraw and, if
necessary, the Board’s Order.
      Where a parolee’s right to counsel is constitutional, appointed counsel must
file an Anders Brief in support of an application to withdraw. A constitutional
right to counsel arises in appeals from determinations revoking parole and exists
where a parolee has 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. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009)
(quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). In contrast, where a

                                          6
parolee’s right to counsel is granted by statute, a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988), is sufficient, and counsel
is not required to file an Anders brief. See 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)
(providing that the public defender is “responsible for furnishing legal counsel” in
“[p]robation and parole proceedings and revocation thereof” “to any person who,
for lack of sufficient funds, is unable to obtain legal counsel”); Commonwealth v.
Santiago, 978 A.2d 349, 351 n.2 (Pa. 2009); Hughes, 977 A.2d at 24-25.
      While an indigent parolee has the right to assistance of counsel, a parolee is
not entitled to representation by appointed counsel to pursue a frivolous appeal.
Adams v. Pa. Bd. of Prob. & Parole, 885 A.2d 1121, 1123 (Pa. Cmwlth. 2005). In
those situations, “court appointed counsel may seek to withdraw if counsel
concludes, after a thorough review of the record, [that] the appeal is ‘wholly
frivolous.’” Id. A wholly frivolous appeal is one that “completely lacks factual or
legal reasons that might arguably support” it. Id. To withdraw, counsel must first
“send to the petitioner: (1) a copy of the . . . [Anders B]rief; (2) a copy of
counsel’s petition to withdraw; and (3) a statement advising petitioner of the right
to proceed pro se or by new counsel.” Zerby v. Shanon, 964 A.2d 956, 960 (Pa.
Cmwlth. 2009) (quoting Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007)). An Anders Brief, must, at a minimum:

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that counsel
      believes arguably supports the appeal; (3) set forth counsel’s
      conclusion that the appeal is frivolous; and (4) state counsel’s reasons
      for concluding that the appeal is frivolous.




                                         7
Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 n.5 (Pa. Cmwlth. 2010)
(emphasis omitted) (quoting Santiago, 978 A.2d at 361).
         If a parolee has a statutory right to legal assistance, counsel seeking to
withdraw has to file a no-merit letter or Turner letter, which must include an
explanation of “the nature and extent of [counsel’s] review and [a] list[ of] each
issue the petitioner wished to have raised, with counsel’s explanation of why those
issues [are] meritless.” Turner, 544 A.2d at 928. If counsel complies with the
technical requirements of, where required, an Anders Brief or a no-merit letter, this
Court will independently assess the merits of the case to determine if the petition
for review is, as counsel asserts, frivolous or without merit. Seilhamer, 996 A.2d
at 44.
         While it is unclear whether an Anders Brief, as opposed to a no-merit letter,
would be necessary in these circumstances,4 reviewing Counsel’s Application to
Withdraw and Anders Brief under either standard reveals that she has satisfied the
technical requirements set forth above. Counsel has: notified Castetter of her
request to withdraw; furnished Castetter with a copy of the Anders Brief; and
informed Castetter that he had a right to file a brief raising any issues he believed
have merit or to obtain new counsel. A review of Counsel’s Anders Brief likewise
shows it meets the technical requirements. It provides record citations and a
summary of the procedural history and facts, reflecting the nature and extent of
Counsel’s review of the record. Counsel identified the issue raised in the Petition


         4
         Castetter does not argue that he did not engage in the conduct that resulted in the
revocation of his parole and recommitment as a CPV, and his issue does not reflect that “there
are substantial reasons which justified or mitigated the violation and make revocation
inappropriate,” or involves “reasons [that] are complex or otherwise difficult to develop or
present.” Hughes, 977 A.2d at 26 (quoting Gagnon, 411 U.S. at 790).

                                              8
for Review and discusses, citing relevant precedent and the Board’s regulations,
why Castetter’s Petition for Review is frivolous and/or without merit as the issue
asserted therein is waived having been untimely raised. Counsel’s Anders Brief
reflects that she thoroughly reviewed the record and the applicable law. Therefore,
Counsel has complied with the technical requirements for filing an application to
withdraw.    Accordingly, we must now independently review the merits of
Castetter’s Petition for Review to determine if, indeed, it is frivolous.
Frivolousness is a slightly higher standard than without merit and, therefore, if an
issue is frivolous, it is necessarily without merit. Zerby, 964 A.2d at 960.
      The Board’s February 13, 2014 Decision recommitted Castetter as a CPV,
directed him to serve 12 months of backtime, and recalculated his parole violation
maximum date to July 27, 2019. Pursuant to the Board’s regulation at 37 Pa. Code
§ 73.1(a)(1), (b)(1), any challenge to this Decision, whether termed an
administrative appeal or petition for administrative remedy, must be received by
the Board within 30 days of the mailing date of the decision being challenged.
“Where a [parolee] fails to meet this deadline, this [C]ourt has held that the Board
has no jurisdiction to entertain the appeal and should dismiss it as untimely.”
McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993).
Moreover, any issue not contained within a timely appeal is “waived for purposes
of appellate review by this [C]ourt.” Id. at 1094-95
      In March 2014, Castetter did file a timely Administrative Appeal from the
Board’s February 13, 2014 Decision; however, in that appeal he challenged only
the length of the backtime the Board imposed. (C.R. at 81-82.) He did not assert
any objection to the Board’s recalculation of his parole violation maximum date in
that timely filed Administrative Appeal. (Id.) Thus, the issue raised in the current


                                          9
Petition for Review was not preserved in that Administrative Appeal. McCaskill,
631 A.2d at 1094. Castetter did not raise his challenge to the recalculation of his
parole violation maximum date until April 21, 2017, and February 25, 2018, when,
respectively, he filed a Request for Administrative Remedy and submitted
additional correspondence to the Board. (Id. at 185-93.) However, appeals filed
beyond the 30-day period set forth in the Board’s regulation are untimely, the
Board lacks jurisdiction to consider such appeals, and the Board is required to
dismiss such appeals as being untimely. McCaskill, 631 A.2d at 1094-95. Because
Castetter raised his challenge to the Board’s recalculation of his parole violation
maximum date more than 3 years after the expiration of the 30-day period in
which to file such challenges, the Board did not err in dismissing Castetter’s
untimely appeals. Id. Thus, Castetter’s appeal to this Court is frivolous as it
“completely lacks factual or legal reasons that might arguably support” it, Adams,
885 A.2d at 1123.
      For the foregoing reasons, we grant Counsel’s Application to Withdraw and
affirm the Board’s May 30, 2018 Order.


                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                         10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wayne Castetter,                       :
                        Petitioner     :
                                       :
                   v.                  :   No. 892 C.D. 2018
                                       :
Pennsylvania Board of Probation and    :
Parole,                                :
                        Respondent     :



                                     ORDER


      NOW, May 7, 2019, the Petition for Leave to Withdraw Appearance as
Counsel filed by Jessica A. Fiscus, Esquire, is hereby GRANTED, and the Order
of the Pennsylvania Board of Probation and Parole, entered in the above-captioned
matter, is AFFIRMED.


                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
