          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Devon Arthur Staniger,                       :
                 Petitioner                  :
                                             :
             v.                              :
                                             :
Pennsylvania Board of                        :
Probation and Parole,                        :   No. 1388 C.D. 2017
                  Respondent                 :   Submitted: May 11, 2018


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                          FILED: July 27, 2018


             Devon Arthur Staniger (Staniger) petitions for review from the
Pennsylvania Board of Probation and Parole’s (Board) order dated September 13,
2017 denying his request for administrative relief challenging the recalculation of
his parole violation maximum sentence date. Staniger is represented by Kent D.
Watkins (Counsel) who asserts that the appeal is without merit and seeks permission
to withdraw as counsel. For the foregoing reasons, we deny Counsel’s request
without prejudice and order Counsel to file an amended petition to withdraw and a
no-merit letter or a brief within 30 days.
             On April 29, 2009, Staniger was sentenced to a term of two years, three
months to six years of incarceration as a result of his guilty plea to two charges of
drug manufacturing, sale and possession with intent to deliver with an initial
minimum sentence date of October 20, 2010 and a maximum sentence date of July
20, 2014. Certified Record (C.R.) 1-3. On October 25, 2010, the Board paroled
Staniger to the State Correctional Institution (SCI) at Mercer. Id. at 6. Staniger had
some difficulty abiding by his parole conditions; thus, the Board placed him at the
MinSec Hazleton Treatment Center (MinSec Hazleton). Id. at 11, 15. On February
1, 2012, the Board declared Staniger delinquent, lodged a detainer and confined him
at SCI-Mahanoy pending disposition of his technical violations. Id. at 12-14.
Staniger admitted to technical parole violations, and the Board recommitted him to
serve nine months of backtime. Id. at 17-18, 24-25. On January 23, 2012, the Board
re-paroled Staniger to MinSec Hazleton but, again, declared Staniger delinquent as
of February 18, 2013. Id. at 11, 29-34.
             On May 27, 2014, the Board lodged a detainer against Staniger. Id. at
35. On the same day, the police arrested Staniger and incarcerated him at the
Lackawanna County Prison for technical violations of parole. Id. at 36. After
admitting to the technical parole violations, the Board recommitted Staniger to a SCI
or contracted county jail to serve six months of incarceration. Id. at 41, 50-52. The
Board recalculated Staniger’s maximum sentence date to October 26, 2015,
accounting for his delinquency from February 18, 2013 to May 27, 2014. Id. at 53.
             On November 27, 2014, the Board re-paroled Staniger from
Lackawanna County Prison to the Luzerne County Prison Work Release (Luzerne
program). Id. at 54-58. On December 16, 2014, the Board lodged a detainer,
arrested Staniger for technical violations of parole and transferred him to the
Lackawanna County community corrections program.             Id. at 59-60.    After a
preliminary hearing on the technical violations of parole, the Board found probable
cause for a violation charge and ordered Staniger detained in a parole violator center.


                                          2
Id. at 69-70. The Board held the violation hearing in “abeyance” pending Staniger’s
completion of “recommended programming.” Id. at 69. Staniger completed the
program on March 30, 2015, and the Board subsequently transferred Staniger to
Wernersville Community Corrections Center. Id. at 89.
             On June 5, 2015, the Board declared Staniger delinquent, and the police
arrested Staniger and charged him with several crimes. Id. at 72-78. On June 21,
2015, the Board lodged a detainer against Staniger for violating the terms of his
parole, and he was incarcerated in the Berks County Prison as he was unable to post
bail. Id. at 79-80. On June 28, 2015, Staniger admitted to technical parole violations.
Id. at 93-94. By order recorded July 27, 2015, the Board ordered Staniger to remain
detained pending the outcome of the criminal charges and recommitted him to a SCI
or contracted county jail as a technical parole violator to serve 143 days of backtime.
Id. at 112-13. The Board added 16 days to Staniger’s backtime to account for his
delinquency from June 5, 2015 to June 21, 2015. Id. at 114. The Board recalculated
Staniger’s maximum sentence date to November 11, 2015, “subject to change if
convicted of outstanding criminal charges.” Id. at 112. On December 17, 2015, the
Board declared Staniger delinquent for control purposes effective June 20, 2015. Id.
at 117.
             On January 12, 2016, Staniger pleaded guilty, but mentally ill, to
several crimes before the Berks County Court of Common Pleas and, subsequently,
admitted to violating his parole. Id. at 105-06, 130. The Board modified its prior
order of July 27, 2015 by recommitting Staniger to a SCI as a “convicted parole
violator to serve 9 months concurrently for a total of 9 months backtime, when
available, pending parole from (or completion of) [his] Berks County sentence and



                                          3
upon [his] return to” a SCI. Id. at 139. The Board, by order mailed August 5, 2016,
recalculated Staniger’s maximum sentence date to July 6, 2018. Id. at 141.
               On August 16, 2016, Staniger, pro se, filed an Administrative Remedies
Form with the Board, followed by several pieces of correspondence, challenging his
recalculated maximum sentence date and requesting the appointment of counsel. Id.
at 148-83. Counsel entered his appearance on behalf of Staniger by letter dated
February 16, 2017. Id. at 184. The Board affirmed the decision to recalculate
Staniger’s maximum sentence date to July 6, 2018 by correspondence mailed
September 13, 2017. Id. at 189-90.
               On October 3, 2017, Staniger, through Counsel, petitioned this Court
for review.1 Subsequently, Counsel filed an application to withdraw as counsel
asserting that he received a copy of the certified record from the Board on or after
November 28, 2017 and, after review of the record, concluded that the appeal is
meritless. Application to Withdraw as Counsel at ¶¶ 6-7. In support of the
application to withdraw, Counsel filed a no-merit letter.2

       1
         Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed or constitutional rights have been violated. Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).

       2
           Counsel seeking to withdraw may file an Anders Brief or a no-merit letter. If petitioner
has a constitutional right to counsel, then counsel should file an Anders Brief. A constitutional
right to counsel requiring an Anders Brief exists where the petitioner raises 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 appropriate, and that the reasons are complete or otherwise
       difficult to develop or present.

Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009). In cases where there
is no constitutional right to counsel, i.e., an appeal from the Board’s decision to recalculate a
                                                4
              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) he must notify the petitioner of the request to withdraw; (ii) he
must furnish the petitioner with a copy of a no-merit letter; and (iii) he must advise
the petitioner of his or her right to retain new counsel and to raise any new points he
or she 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.
              Here, Counsel met some but not all of the requirements to withdraw.
On February 6, 2018, Counsel filed a Certificate of Service with this Court certifying
that he served Staniger, by first class mail, with a copy of the application to withdraw
as counsel and the no-merit letter. In the no-merit letter, Counsel advised Staniger
of his “right to retain substitute counsel, if he so desires, and of his right to raise any


parolee’s maximum sentence date, this Court only requires a no-merit letter explaining why the
claim is meritless to support the petition to withdraw. Id. at 25-26.
        The Anders Brief derives its name from a line of cases commencing with the United States
Supreme Court’s decision in Anders v. California, 386 U.S. 738 (1967), which addressed the
standards for withdraw of appointed counsel. Hughes, 977 A.2d at 22. With respect to the no-
merit letter, such letters are referred to by other names, including “Turner letter.” Hughes, 977
A.2d at 24, n.2; see Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). We will use the terms
“brief” and “no-merit letter” when referring to these filings herein.
                                               5
points which he may deem worthy of merit in a pro se brief filed with this Honorable
Court.” Counsel’s No-Merit Letter at 11. On March 16, 2018, Counsel filed a
Certificate of Service with this Court certifying that he served Staniger with a copy
of this Court’s February 9, 2018 order by first class mail. The February 9, 2018
order gave Staniger 30 days to obtain substitute counsel, at his own expense, and to
have new counsel enter an appearance and file a brief, or to file a brief on his own
behalf in light of Counsel’s request to withdraw.
               Turning to the substance of the no-merit letter, Counsel explains that
he conducted an “exhaustive examination” of the certified record and researched
“applicable case law.” Id. at 10. Counsel provides a summary of Staniger’s history,
as provided in the certified record, including his parole dates, delinquencies, Board
detainers, arrests and Board orders with recalculated maximum sentence dates. Id.
at 2-10. Counsel contends that Staniger challenges his recalculated maximum
sentence date because the Board failed to give him “credit served exclusively to its
warrant”3 and for time served in “Hazleton and Luzerne’s Community Corrections
Center.” Id. at 1. Based on his review of the record, Counsel states “I have
concluded that Mr. Staniger’s appeal is without merit and lacks support in either law
or fact.” Id. at 2.
               However, Counsel’s no-merit letter is deficient because he does not
provide an explanation to support his conclusion that Staniger’s issues are meritless.
Counsel states:

               The Pennsylvania Board of Probation and Parole correctly
               determined petitioner owed 333 days until his maximum

       3
         Staniger contends that the Board did not give him credit for time served when it detained
him pursuant to its warrants issued as a result of his delinquencies and pending the outcome of his
criminal charges prior to the issuance of its recommitment orders.
                                                6
             on his parole sentence. He had 534 days street time which
             was forfeited upon his parole revocation. This time was
             added to the original 333 days owed on petitioner’s
             sentence. From this time was credited his prior period of
             confinement pursuant to the [B]oard’s warrant; a period of
             104 days. The remaining 763 days was [sic] added to the
             petitioner’s parole date on the Berks County case, June 3,
             2016, resulting in a correctly recalculated maximum
             sentence date of July 6, 2018. 61 Pa. C.S. § 6138. The
             record does not reveal any other issues that may be raised
             on Mr. Staniger’s behalf.

                     In light of my exhaustive examination of the
             certified record, and research of applicable case law, I
             have concluded that Mr. Staniger’s appeal from the
             revocation of his parole has no basis in law or in fact and
             is, therefore, frivolous.

Id. at 10 (emphasis added). Though Counsel offers his conclusion that Staniger’s
appeal “has no basis in law or in fact,” Counsel provides no explanation as to why
the Board’s recalculation of Staniger’s maximum sentence date was correct.
Counsel cites to Section 6138 of the Prisons and Parole Code, 61 Pa. C.S. § 6138,
but does not explain how the Board’s order complies with this section nor does he
cite to a single case to support his conclusion, despite his representation to this Court
that he engaged in an “exhaustive examination” of the certified record and
researched “applicable case law.” See Zerby, 964 A.2d at 961 (a no-merit letter must
include “substantial reasons for concluding that” a petitioner’s arguments are
without merit).
             In addition, Counsel fails to address why it was proper for the Board
not to credit Staniger with time served in MinSec Hazleton and the Luzerne program.
Staniger, in his request for relief directed to the Board, asserted that some of the 534
days he spent on parole should be credited to him as time spent in custody because

                                           7
he spent some of it in a “halfway house” and/or community corrections center.4
Although the Board did not expressly address this issue in its September 13, 2017
order,5 Counsel, in his no-merit letter, recognized that Staniger raised this as an issue.
Nevertheless, Counsel’s no-merit letter simply does the math presuming that
Staniger forfeited the 534 days of street time. Counsel fails to address why it was
proper for the Board not to credit the street time; such explanation is critical given
that this Court has held that, in limited circumstances, a parolee is entitled to credit
for time spent in custody but not in a traditional prison setting such as a halfway
house.6 Compare Weigle v. Pa. Bd. of Prob. & Parole, 886 A.2d 1183 (Pa. Cmwlth.

        4
           Specifically, Staniger, in his August 24, 2016 letter to the Board, asserted, “I believe it is
parol [sic] law that only the time I was on the street can be taken not the time I was in jail [sic] my
prior parole time that such has been forfeited is the 534 days that is the only time I was on the
street.” C.R. 156. Staniger attached a copy of the Board’s July 25, 2016 recommitment order and
noted, to the left of the box where the Board listed the 534 days he spent at liberty on parole that
“[t]his is my only street time and some of it was halfway house time.” C.R. 153. Further, Staniger,
in his December 19, 2016 correspondence to the Board, asserted that he is entitled to credit for
time spent in a halfway house or community corrections center and referenced McMillian v.
Pennsylvania Board of Probation and Parole, 824 A.2d 350, 353 (Pa. Cmwlth. 2003). C.R. 162,
176. While McMillian concerned whether an inmate in pre-release status was entitled to credit for
time spent in a community corrections center, not a parolee’s time in a halfway house, Counsel
never addressed the applicability of this case or Staniger’s request for credit.

        The Board considered Staniger’s correspondence part of his administrative appeal as it
        5

opened with the following language in its order:

        This is a response to correspondence received from you date stamped August 16,
        2016 and the subsequent correspondence we received from you date stamped
        August 24, 2016, September 7, 2016, November 17, 2016, December 19, 2016,
        January 19, 2017, February 7, 2017 and February 13, 2017. Because you object to
        your recomputed parole violation maximum date of July 6, 2018 and credit applied
        to your backtime, your request is considered a petition for administrative review,
        from the board action recorded July 18, 2016 (mailed August 5, 2016).

C.R. 192 (emphasis added).
        6
        Our Supreme Court noted in Barge v. Pennsylvania Board of Probation and Parole,96
A.3d 360 (Pa. 2014) (concurring statement, Castille, C.J.) that the term “halfway house” refers to
community corrections centers or community corrections facilities as defined at 61 Pa. C.S. §
                                                   8
2005) (holding that parolee is entitled to credit for some time spent at a community
corrections center when facts showed seven-day black out period during intake when
parolee could not leave facility) with Wagner v. Pa. Bd. of Prob. & Parole, 846 A.2d
187 (Pa. Cmwlth. 2004) (holding that parolee not entitled to credit for time spent in
community corrections center, an inpatient program, when facts showed that doors
not locked and parolee could leave the facility unescorted).7 It is incumbent upon
Counsel to explain why the issue raised by Staniger lacks merit. See Zerby, 964
A.2d at 962-63 (holding that because Counsel’s no-merit letter did not address all of
petitioner’s arguments and did not provide a substantive explanation of why the
issues it does raise are meritless, the court must deny counsel’s request to withdraw).
In Presley v. Pennsylvania Board of Probation and Parole, 737 A.2d 858, 861-62
(Pa. Cmwlth. 1999), this Court explained that:

               The purpose of . . . a no-merit letter is to ensure that court-
               appointed counsel has discharged his or her duty to
               carefully assess any claims available to an indigent
               [petitioner]. While a frivolous appeal is neither
               encouraged nor condoned, counsel’s failure to discharge

5005. For the purposes of this matter, a “community corrections center” is a “residential program
that is supervised and operated by the department in accordance with Chapter 50 (relating to
community corrections centers and community corrections facilities).” 61 Pa. C.S. § 6138(f). A
“community corrections facility” is a “residential facility operated by a private contractor that: (1)
houses offenders pursuant to a contract with the department; and (2) is operated in accordance with
Chapter 50.” Id.
        Here, Staniger asserts that he is entitled to some time spent at MinSec Hazleton and the
Luzerne program. Because the Board did not address Staniger’s argument, the Board held no
hearing to collect evidence on the nature of these programs during Staniger’s participation.

       7
          See also Meleski v. Pa. Bd. of Prob. & Parole, 931 A.2d 68 (Pa. Cmwlth. 2007) (holding
that parolee entitled to credit for some time spent at inpatient dual diagnosis treatment program
when he could not leave the facility); Torres v. Pa. Bd. of Prob. & Parole, 861 A.2d 394 (Pa.
Cmwlth. 2004) (holding that parolee entitled to credit for some time spent at a community
corrections center, an inpatient drug and alcohol rehabilitation facility, when he could leave facility
only as directed by facility and when escorted by staff).
                                                  9
              such duty will hinder our independent examination of the
              merits of the appeal.

Because no explanation has been provided to this Court as to why the Board’s order
is supported, this Court cannot engage in an independent examination of the merits
of the appeal.
              Based on the foregoing, we conclude that Counsel’s no-merit letter is
inadequate as it lacks substantial reasons to support Counsel’s conclusion that
Staniger’s arguments lack merit. Thus, we deny Counsel’s application, without
prejudice, and we direct Counsel to file an amended application to withdraw as
counsel and no-merit letter or to file a brief on the merits of the petition for review
within 30 days of the date of this decision and order.8




                                            __________________________________
                                            CHRISTINE FIZZANO CANNON, Judge




       8
         We note that Staniger’s recalculated maximum sentence date is July 6, 2018, which has
passed as of the filing date of this opinion. Based on the certified record before us, this Court
cannot ascertain whether this matter still requires adjudication. Counsel should consider
addressing this issue in his next filing with this Court, as appropriate.
                                               10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Devon Arthur Staniger,                   :
                 Petitioner              :
                                         :
             v.                          :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 1388 C.D. 2017
                  Respondent             :


                                    ORDER


             AND NOW, this 27th day of July, 2018, the Application to Withdraw
as Counsel filed by Kent D. Watkins, Esquire, is DENIED WITHOUT PREJUDICE.
Within 30 days of the date of this order, Counsel shall file an amended application
to withdraw and a no-merit letter or a brief on the merits of Devon Arthur Staniger’s
Petition for Review.




                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge
