         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Abdul Boyd,                           :
                   Petitioner         :
                                      :
            v.                        : No. 1791 C.D. 2017
                                      : Submitted: August 31, 2018
Pennsylvania Board of Probation       :
and Parole,                           :
                 Respondent           :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: September 19, 2018


            James L. Best, Esquire (Counsel) has filed this Amended Motion for
Leave to Withdraw as Counsel for Abdul Boyd (Boyd) in his petition for review
from a Pennsylvania Board of Probation and Parole’s (Board) decision involving
Boyd’s recommitment as a convicted parole violator (CPV) and the recalculation
of his parole violation maximum date. Counsel requests permission to withdraw
from further representation because he has determined that the appeal is frivolous.
For the following reasons, we grant Counsel’s Amended Motion for Leave to
Withdraw and affirm the Board’s order.
                                        I.

             Boyd was paroled by the Board on March 13, 2014, from a sentence
with a maximum release date of April 13, 2018. On October 22, 2014, Boyd was
arrested on new federal drug-related charges and the same day the Board issued a
detainer warrant. Boyd waived his right to counsel and waived a detention hearing
before the Board. On October 23, 2014, Boyd remained in federal custody for
failure to make bail.


             On October 15, 2015, Boyd pled guilty in the United States District
Court for the Western District of Pennsylvania to a federal drug charge of
conspiracy to commit possession with intent to distribute and was sentenced to
serve 37 months in federal custody followed by a four-year supervised release. On
June 30, 2017, the federal prison authorities released him to the Board’s detainer
warrant.


             On July 5, 2017, the Board recommitted Boyd as a CPV to serve 24
months’ backtime and forfeited Boyd’s 1,134 days of street time. However, the
Board gave him credit for time served between October 22, 2014, and October 15,
2015, when he was held on the state and federal detainers, but not from October
15, 2015, to June 30, 2017, when he was in federal custody serving his federal
sentence. The Board recalculated his maximum release date to August 7, 2020.


             Boyd, acting pro se, filed an administrative appeal from the Board’s
decision. He contended that pursuant to Section 6138(a)(5.1) of the Prisons and
Parole Code (Code), 61 Pa.C.S. § 6138(a)(5.1), state parole backtime following


                                        2
recommitment as a CPV must be served prior to the new federal sentence
underlying that commitment. As a result, he contends that he is entitled to 34
months’ credit on his original state sentence for the period served pursuant to the
Board’s detainer and federal charges.


             The Board denied Boyd’s administrative appeal. It found that Boyd
could not serve his backtime prior to the new federal sentence because federal
authorities are not required to return a prisoner to state custody before he serves his
federal sentence. The Board also found that there was no error in determining that
Boyd had 1,492 days remaining on his sentence at the time of parole because he
was not entitled to credit for his 1,134 days spent at liberty on parole since that
time was forfeited as a CPV.


             Boyd, acting pro se, then filed a petition for review in this Court
raising the same substantive issues that he raised in his administrative appeal to the
Board. We assigned Counsel to represent Boyd in this appeal. Counsel then
sought to withdraw representation. After conducting a review of the issues, he
determined the appeal is frivolous because there is no basis in law or fact for it.
Along with his motion, Counsel filed a no-merit letter where he listed the issue
Boyd raised, along with an explanation of why he believes this issue to be
meritless. By opinion and order of July 17, 2018, we denied Counsel’s request
because we found that while he had complied with all other technical requirements,
he had failed to provide Boyd with a notification of his right either to proceed pro
se or with new counsel. See Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth.
2009).


                                          3
              Counsel has filed an Amended Motion for Leave to Withdraw as
Counsel, along with a no-merit letter and a copy of correspondence to Boyd in
which he informed him of his right to proceed either pro se or via new counsel,
therefore satisfying all technical requirements.             We will now conduct an
independent review to determine whether the appeal is indeed meritless. Zerby,
964 A.2d at 962.


                                             II.
              The sole issue raised by Boyd on appeal1 is whether the Board erred in
not crediting Boyd for time served in federal prison on his new conviction after the
Board did not require Boyd to serve his state term first.                Boyd argues that
according to Section 6138(a)(5.1) of the Code, his state sentence should have been
served prior to the new federal term of incarceration and that as a result, he is
entitled to the 34 months’ credit on his original state sentence for the period he
served pursuant to the Board’s detainer and federal charges. Section 6138(a)(5.1)
provides:

              If the parolee is sentenced to serve a new term of total
              confinement by a Federal court or 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.




       1
          Our scope of review is limited to determining whether the Board’s adjudication is
supported by substantial evidence, whether an error of law has been committed, or whether
constitutional rights have been violated. Moroz v. Pennsylvania Board of Probation and Parole,
660 A.2d 131, 132 (Pa. Cmwlth. 1995).


                                              4
61 Pa.C.S. § 6138(a)(5.1). However, the Board was correct that Boyd could not
serve his original sentence first because this is conditional upon federal authorities
returning a prisoner to state custody. In Smith v. Pennsylvania Board of Probation
and Parole, 171 A.3d 759 (Pa. 2017), our Supreme Court held that credit for time
on a parolee’s original state sentence was not to be given while the parolee was
held on new federal charges even though the Board’s detainer had been lodged
against him. In this case, Boyd was simply not available to serve his backtime
because he was serving his federal sentence.


             Boyd also contends that the Board had the authority to acquire a
Pennsylvania parolee from the custody of another jurisdiction in order to recommit
the parolee to serve his backtime before he could serve his new sentence. Boyd
cites Fumea v. Pennsylvania Board of Probation and Parole, 147 A.3d 610 (Pa.
Cmwlth. 2016), where we held that the Board has a duty to obtain custody of a
parolee when the parolee is available prior to sentencing on the new charge.
Fumea is simply not applicable because that case involved whether a parolee was
entitled to credit for time on parole, while in this case, Boyd was unavailable
because he was serving a federal sentence. This case is also inapplicable because,
in Fumea, the parolee posted bail prior to sentencing for the federal charges,
making the parolee technically available to be detained by the Board. Unlike in
Fumea, Boyd failed to post bail prior to sentencing for federal charges and was,
therefore, unavailable to the Board because the Board did not have the authority to
obtain him from federal custody. See Brown v. Pennsylvania Board of Probation
and Parole, 184 A.3d 1021 (Pa. Cmwlth. 2017) (holding that the Board could not




                                          5
return a parolee who did not post bail while in the custody of another jurisdiction
in order to recommit the parolee to serve the remainder of his sentence).


             Because the Board lacked the authority to return Boyd from federal
custody since he did not post bail, and because the Board did not err in failing to
credit time on the original sentence while Boyd was serving his federal sentence,
we agree with Counsel that Boyd’s claim is without merit. Accordingly, we grant
Counsel leave to withdraw and affirm the Board’s decision.




                                       _________________________________
                                       DAN PELLEGRINI, Senior Judge




                                         6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Abdul Boyd,                          :
                  Petitioner         :
                                     :
            v.                       : No. 1791 C.D. 2017
                                     :
Pennsylvania Board of Probation      :
and Parole,                          :
                 Respondent




                                   ORDER


            AND NOW, this 19th day of September, 2018, the Amended Motion
for Leave to Withdraw as Counsel filed by James L. Best, Esquire is granted, and
the decision of the Pennsylvania Board of Probation and Parole bearing a mailing
date of November 6, 2017, is affirmed.



                                     _________________________________
                                     DAN PELLEGRINI, Senior Judge
