        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tameka Evans,                              :
                           Petitioner      :
                                           :
             v.                            :   No. 1005 C.D. 2017
                                           :   Submitted: February 23, 2018
Pennsylvania Board of Probation            :
and Parole,                                :
                        Respondent         :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                           FILED: April 2, 2018

             Tameka Evans (Inmate), an inmate housed in the State Correctional
Institution (SCI)-Cambridge Springs, petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) denying her request for
administrative relief and affirming the Board’s recalculation of the maximum date
of her original sentence. Based on her 2015 convictions for two counts of possession
with intent to deliver a controlled substance (PWID), the Board recommitted Inmate
to serve 6 months’ backtime as a technical parole violator (TPV) and 36 months’
backtime as a convicted parole violator (CPV), to run concurrently. Inmate contends
the Board erred in denying her credit for 41 days after she was paroled from her new
sentence. Inmate also asserts the Board erred and violated her constitutional rights
by recommitting her to serve an amount of backtime that exceeded the balance of
her unexpired term and interfered with a judicial function by extending her sentence.
In addition, Inmate argues the Board abused its discretion by failing to give her credit
for time spent at liberty on parole where she was not convicted of a violent crime or
a crime requiring registration as a sex offender. Also before us is a motion to
withdraw as counsel by Crawford County Assistant Public Defender Allison J. Rice
(Counsel), alleging Inmate’s petition for review is frivolous. We grant Counsel’s
motion to withdraw as appointed counsel and affirm the Board.


                                  I. Background
             Inmate’s original sentence of 3 years and 4 months to 8 years for her
2010 convictions for PWID and conspiracy, had a minimum date of September 13,
2012 and a maximum date of May 13, 2017. Certified Record (C.R.) at 1. The
Board first paroled Inmate from her original sentence on March 18, 2013.


             On August 18, 2014, the McKeesport Police Department and Board
agents arrested Inmate during a compliance check of her residence when they
discovered a large amount of heroin hidden in her apartment. See C.R. at 21-27.
Consequently, the police charged Inmate with multiple counts of PWID. The same
day, the Board lodged a detainer warrant against Inmate. Id. at 23.


             In January 2015, Inmate pled guilty to two counts of PWID. Id. at 40-
42. On April 16, 2015, the Court of Common Pleas of Allegheny County sentenced
Inmate on the new charges to a minimum of 11 months and 29 days, to a maximum
of 1 year, 11 months and 28 days, with an additional 4 years of probation (second
sentence). Id. at 40.




                                         2
             Meanwhile, in March 2015, the Board considered Inmate’s written
waivers and admission concerning her guilty pleas, id. at 42, and it issued a decision
recommitting Inmate to serve concurrent terms of 6 months’ backtime for multiple
TPVs and 36 months’ backtime as a CPV for the two PWID counts. The Board did
not award Inmate any credit for time spent at liberty on parole. Inmate filed a timely
administrative appeal, which the Board dismissed.


             In August 2016, the Board issued a decision recalculating the maximum
date of Inmate’s original sentence as November 21, 2019, and scheduling her re-
parole review date in September 2018. Id. at 76-77. In response, Inmate filed an
administrative appeal alleging the Board lacked the judicial authority to recalculate
her original sentence. Id. at 83-96.


             In June 2017, the Board issued a decision denying Inmate’s
administrative appeal and affirming its recalculation decision. C.R. at 97. The
Board explained that it first paroled Inmate on March 13, 2013. Id. at 78, 97. At
that time, Inmate had 1,517 days remaining on her original sentence. Id. The Board
explained that as a CPV, she must serve the remainder of her original term as
required by 61 Pa. C.S. §6138(a)(2). See C.R. at 97.


             The Board further noted that it awarded Inmate 221 days credit toward
her original sentence for the time she was detained solely by the Board (8/18/14 –
8/19-14 (1 day)); (9/08/14 – 4/16/15 (220 days)). C.R. at 78. Subtracting the 221
days credit from the 1,517 remaining on Inmate’s original sentence reduced the
amount of remaining time owed on her original sentence to 1,296 days. Id. at 97.



                                          3
Adding 1,296 days to May 4, 2016, the date of Inmate’s parole from her second
sentence, resulted in a new maximum date of November 21, 2019. Id.


            Inmate filed a timely petition for review. Upon application by Inmate
for appointment of counsel, this Court appointed the Public Defender of Crawford
County to represent Inmate on appeal. See Tameka Evans v. Pa. Bd. of Prob. &
Parole (Pa. Cmwlth., No. 1005 C.D.2017, order filed July 27, 2017).


            In her petition for review, Inmate alleged the Board’s decision violated
several of her constitutional rights, including the prohibitions against double
jeopardy in the Fifth Amendment and cruel and unusual punishment in the Eighth
Amendment. In support of her argument, Inmate cited a published article by an
inmate at SCI-Albion regarding his constitutional challenges to a Board order
recalculating his original sentence. See Alonzo R. Boyd, Administrative Appeal
Pursuant to Article 5, Section 9 of the Pennsylvania Constitution, GRATERFRIENDS
– A PUBLICATION OF THE PENNSYLVANIA PRISON SOCIETY, May/June 2015, at
9, 15; Pet. for Review, Ex. B-1; C.R. at 83-85. Inmate’s petition for review also
raised a “Sentence Credit Challenge March 23, 2016 – May 6, 2017.” Pet. for
Review, ¶5b.


            After entering her appearance and reviewing the record and Inmate’s
petition for review, Counsel filed a motion to withdraw as counsel.        Counsel
determined Inmate’s petition lacked merit and thus constituted a frivolous appeal.
Mot. to Withdraw at ¶1. Counsel indicated she provided Inmate with a copy of her
motion to withdraw and a detailed no-merit letter outlining why Inmate’s appeal



                                        4
lacked merit. Id. at ¶2. Counsel further indicated that she advised Inmate of her
right to retain new counsel, to proceed pro se (without counsel), and to raise any
additional issues she deemed worthy of review. Id. at ¶3.


             Thereafter, Inmate, unrepresented by counsel, filed a brief in support of
her petition for review. In response, the Board filed a brief in support of its
recalculation decision.


                             II. Motion to Withdraw
             We first address Counsel’s motion to withdraw. In Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), our Supreme Court held that in matters which are
collateral to underlying criminal proceedings, such as parole matters, a counsel
seeking to withdraw from representation of an inmate may file a no-merit letter that
includes information describing the extent and nature of counsel’s review, stating
the issues the inmate requests to raise, and informing the Court of the reasons why
counsel believes those issues lack merit.


             To withdraw, appointed counsel must first meet the procedural
requirements established by this Court in Craig v. Pennsylvania Board of Probation
and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Pursuant to Craig, counsel must (1)
notify the parolee of her request to the court to withdraw; (2) provide the parolee
with a copy of her no-merit letter; and, (3) advise the parolee that she has the right
to obtain new counsel and to submit to the court a brief of her own, raising any
arguments that she may believe are meritorious. Reavis v. Pa. Bd. of Prob. & Parole,
909 A.2d 28 (Pa. Cmwlth. 2006). Further, in order to withdraw under Turner,



                                            5
counsel’s no-merit letter must substantively include: (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 her conclusion that the issues are meritless. Zerby
v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009).


             Here, Counsel notified Inmate in her no-merit letter of her request to
withdraw. Counsel also advised Inmate of her right to obtain substitute counsel, and
Counsel informed Inmate she could submit a brief raising any additional issues she
deemed worthy of review. Counsel also served this Court, the Board, and Inmate
with a copy of her motion to withdraw and no-merit letter. Therefore, Counsel
complied with the procedural requirements in Craig. Reavis.


             Counsel’s no-merit letter also meets the substantive requirements in
Turner. The letter includes a statement indicating Counsel reviewed the record of
Inmate’s criminal convictions, sentences, and the parole proceedings before the
Board. Counsel’s letter also adequately addressed the issues raised in Inmate’s
petition for review. Counsel attached our decision in Boyd v. Pennsylvania Board
of Probation and Parole (Pa. Cmwlth., No. 912 C.D. 2015, filed March 9, 2016),
2016 WL 9033243 (unreported), wherein we granted the Board’s request for a
remand based on its acknowledgment that its recommitment order exceeded the
applicable presumptive range. The Board admitted it applied the wrong presumptive
range for a Pennsylvania offense comparable to the appellant’s Ohio drug possession
convictions. Counsel explained to Inmate that Boyd was distinguishable from her
case because the Board applied the wrong presumptive range based on an improper
comparison of offenses. Counsel also pointed out that our decision in Boyd clarified



                                         6
that Inmate’s constitutional challenges to the Board’s recommitment and
recalculation orders have been repeatedly rejected by Pennsylvania’s appellate
courts.


            Given the foregoing, we grant Counsel’s motion to withdraw as
appointed counsel. Reavis.


            Having concluded Counsel’s no-merit letter complied with Turner, we
must now conduct an independent review to determine whether Counsel correctly
characterized Inmate’s appeal as having no merit. Reavis (citing Hill v. Pa. Bd. of
Prob. & Parole, 707 A.2d 1214 (Pa. Cmwlth. 1998)).


                              III. Merits of Appeal
              To begin, we recognize that Inmate proceeded before the Board
unrepresented by counsel. However, this does not excuse her from raising and
preserving issues. Reavis. To that end, failure to raise an issue before the Board
constitutes a waiver and precludes our review. Id. (citing DeMarco v. Pa. Bd. of
Prob. & Parole, 758 A.2d 746 (Pa. Cmwlth. 2000)).


                          A. 41-Day Credit Challenge
            Inmate first contends the Board erred in denying her credit toward her
original sentence for the 41-day period from the date of parole from her second
sentence. Inmate incorrectly identifies that period as running from March 23 to May
6, 2016.




                                        7
             Our review of the record shows that the court sentenced Inmate on April
16, 2015, for her convictions on the new PWID charges. C.R. at 40. The Board’s
recommitment order shows Inmate was returned to the Board’s custody on May 4,
2016, not on March 23, 2016. Id. at 78. The Board’s final decision also states Inmate
was paroled from her second sentence on May 4, 2016. Id. at 97. This date is
corroborated by a Department of Corrections’ report showing Inmate was returned
to SCI-Cambridge Springs on May 6, 2016. Id. at 80. Furthermore, Inmate cites no
documentation contradicting the certified record or otherwise indicating she was
paroled on March 23, 2016.


             An inmate is entitled to credit on her original sentence only for time in
which she is incarcerated solely by reason of a Board detainer warrant lodged against
her. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980); Armbruster v. Pa.
Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007). Here, the record shows
Inmate was not paroled from her second sentence until May 4, 2016. This is the date
correctly used by the Board in its recalculation computations. Therefore, we reject
Inmate’s contention that the Board erred in denying her 41 days’ credit toward her
original sentence for the period of March 23 to May 6, 2017.


                B. Validity of Recommitment and Recalculation
             Inmate next contends the Board erred by recommitting her to serve 36
months’ backtime because a term of 36 months exceeded the remaining balance of
her original sentence. Inmate further asserts the Board does not have the power to
alter a judicially imposed sentence.      As support, Inmate cites Davenport v.
Pennsylvania Board of Probation and Parole, 656 A.2d 581 (Pa. Cmwlth. 1994),



                                          8
where this Court determined the Board could not impose backtime that exceeded the
remaining balance of the parolee’s unexpired term.          In Davenport, the Board
recommitted the parolee, a CPV convicted of multiple counts of robbery, to serve
624 months’ (52 years) backtime. This exceeded the parolee’s original sentence of
approximately 10 years by 42 years. Ultimately, we determined that the sum total
of backtime imposed, added to the time served prior to parole, cannot exceed the
total aggregate maximum sentence originally imposed by the sentencing court. See
Davenport, 656 A.2d at 583-84.


             Here, at the time of Inmate’s initial parole on March 18, 2013, she had
1,517 days remaining on her original sentence. C.R. at 78, 97. Subtracting 221 days
Inmate spent in custody solely on a Board detainer, Inmate owed 1,296 days on her
original sentence. Id. This amount of time exceeded the 36 months’ backtime
imposed by the Board. Consequently, Davenport is not applicable here.


             We also reject Inmate’s constitutional challenge that the Board’s
recalculation encroached on a judicial function by altering a court-imposed sentence.
Pursuant to 61 Pa. C.S. §6138(a)(2), if the Board recommits a parolee, “the parolee
shall be reentered to serve the remainder of the term which the parolee would have
been compelled to serve had the parole not been granted and, except as provided
under paragraph (2.1), shall be given no credit for the time at liberty on parole.”
(Emphasis added.) Our Supreme Court observed that statutes denying a parolee
credit for time spent at liberty on parole, where the parolee is convicted of a criminal
offense that he committed while in parole status, represent “a reasonable exercise of
the penological responsibility” and do “not offend the constitutional guarantees”



                                           9
afforded the citizens of Pennsylvania or the nation. Young v. Pa. Bd. of Prob.
&Parole, 409 A.2d 842, 847 (Pa. 1979). In short, “a Parole Board is under no
constitutional obligation to diminish the length of the sentence of a recommitted
parole[e] by a period equal to the time when the prisoner was on parole.” Gaito, 412
A.2d at 570 (citation omitted).


             Further, “when the Board refuses to credit a [CPV] with time spent free
on parole there is neither an usurpation of the judicial function of sentencing nor a
denial of the procedural safeguards to which persons are entitled.” Id. More
particularly, the Supreme Court explained (with emphasis added):

                    Certainly, a state is not precluded by the Federal
             Constitution from giving paroled convicts an added
             inducement to ‘go straight’ by retaining the ability to
             recommit them for crimes they commit while on parole.
             No constitutional question is involved in the [Board’s]
             failure to give [appellant] credit for time on parole and its
             adjustment of the expiration date of his new maximum.

                   The same reasoning that forces the conclusion that
             a denial of credit does not constitute an enhancement of a
             sentence so as to raise federal constitutional implications
             also supports the proposition that it does not affect the
             sentence in such a manner as would be offensive to the
             doctrine of separation of powers. The position urged by
             appellant, if accepted, would produce an absurd result.
             While accepting parole as a legitimate penological
             method, it would prohibit the imposition of conditions
             upon which its effectiveness depends.


                                       ****

                    To allow a delinquent parolee to have the benefit of
             ‘street time’ during which he ignored the conditions of


                                          10
             parole would render parole impotent as a corrective device
             and would in fact lessen the judicially mandated period of
             custody. Thus appellant’s position would create the very
             evil that he claims exists.

                    Moreover, appellant’s argument in support of his
             view is specious. To contend that an enhancement of the
             sentence is created because parole is another form of
             custody, ignores the fact that denial of credit is based upon
             appellant’s failure to comply with the restraints during the
             parole period. Certainly, if there is compliance with the
             terms of parole, appellant’s time spent in that status
             satisfies the prison requirement. It is only where he has
             ignored the restraints, which appellant argues must be
             considered a form of custody, that he can be recommitted
             without regard to the time he spent in the parole status.

Young, 409 A.2d at 847-48 (citations omitted).


             In Davidson v. Pennsylvania Board of Probation and Parole, 33 A.3d
682 (Pa. Cmwlth. 2011), we applied the rationale in Young and determined the
Board did not violate the separation of powers doctrine by acting pursuant to 61 Pa.
C.S. §6138 to recommit the appellant as a CPV with credit for the time served at
liberty on parole.


             In addition, as Counsel advised, Inmate’s remaining constitutional
challenges lack merit. See Gaito (Board’s denial of time CPV spent at liberty on
parole does not constitute bill of attainder, denial of due process or double jeopardy
violation); Young (Board’s recalculation of parolee’s maximum expiration date
under 61 Pa. C.S. §6138(a)(2) does not violate constitutional due process, separation
of powers, equal protection or the prohibitions against double jeopardy, bills of
attainder, cruel and unusual punishment and ex post facto laws). Consequently, we


                                          11
dismiss Inmate’s constitutional challenges to the Board’s recommitment and
recalculation orders. Gaito; Young; Davidson.


            C. Credit for Street Time under 61 Pa. C.S. §6138(a)(2.1)
             Before this Court, Inmate also contends the Board abused its discretion
by not awarding her credit under 61 Pa. C.S. §6138(a)(2.1) for time she spent at
liberty on parole because the crime she committed on parole was neither a crime of
violence as defined in 42 Pa. C.S. §9714(g) (relating to sentences for second and
subsequent offenses) nor a crime requiring registration under 42 Pa. C.S. Chapter 97
(relating to registration of sexual offenders).


             In response, the Board argues Inmate waived her claim for credit for
her street time by failing to raise this issue in her petitions for administrative review
before the Board. Section 703 of the Administrative Agency Law, provides (with
emphasis added):

              (a) General rule.—A party who proceeded before a
             Commonwealth agency under the terms of a particular
             statute shall not be precluded from questioning the validity
             of the statute in the appeal, but such party may not raise
             upon appeal any other question not raised before the
             agency (notwithstanding the fact that the agency may not
             be competent to resolve such question) unless allowed by
             the court upon cause shown.

              (b) Equitable relief.—The remedy at law provided by
             subsection (a) shall not in any manner impair the right to
             equitable relief heretofore existing, and such right to
             equitable relief is hereby continued notwithstanding the
             provisions of subsection (a).




                                           12
2 Pa. C.S. §703. The Board also cites Pennsylvania Rule of Appellate Procedure
1551(a)(3), which provides (with emphasis added):

              (a) Appellate jurisdiction petitions for review.—
             Review of quasijudicial orders shall be conducted by the
             court on the record made before the government unit. No
             question shall be heard or considered by the court which
             was not raised before the government unit except:

                                      ****

              (3) Questions which the court is satisfied the petitioner
             could not by the exercise of due diligence have raised
             before the government unit. If, upon hearing before the
             court, the court is satisfied that any such additional
             question within the scope of this paragraph should be so
             raised, it shall remand the record to the government unit
             for further consideration of the additional question.

              The court may in any case remand the record to the
             government unit for further proceedings if the court deems
             them necessary.

Pa. R.A.P. 1551(a).


             In support of its position that Inmate waived her challenge to its
decision to deny her credit for the time she spent at liberty on parole, the Board
asserts Inmate never raised this issue in her requests seeking administrative review.
See C.R. at 83-96. The Board further observes Inmate never argued that she could
not raise this issue in her administrative appeal or that she need not exhaust her
administrative remedies. Therefore, the Board argues, the waiver exceptions in Pa.
R.A.P. 1551(a) do not apply.
             Generally, issues not raised before the Board in an administrative
appeal may not be heard or considered by the reviewing court. McCaskill v. Pa. Bd.


                                         13
of Prob. & Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993). To that end, a parolee seeking
administrative relief must “specifically set forth the facts and legal basis for which
relief should be granted.” Id. at 1095. In particular, the Board regulations require
that administrative petitions for review present issues with accuracy, brevity,
clearness and specificity. 37 Pa. Code §73.1(a)(3), (b)(2); Headley v. Pa. Bd. of
Prob. & Parole (Pa. Cmwlth., No. 2553 C.D. 2015, filed May 2, 2017) 2017 WL
1629441 (unreported).1


               In Fryer v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth.,
No. 145 C.D. 2014, filed October 28, 2014) 2014 WL 5456790 (unreported), this
Court affirmed a Board decision dismissing as untimely a CPV’s challenge to the
Board’s failure to consider crediting him for the time he spent at liberty on parole
where he did not raise that issue in his administrative appeal.


               Notably, however, in Pittman v. Pennsylvania Board of Probation and
Parole, 159 A.3d 466 (Pa. 2017), our Supreme Court recently held that Section
6138(a)(2.1) requires that the Board articulate a basis for its decision to deny a CPV
credit for time spent at liberty on parole. Here, as in Pittman, the Board, in denying
Inmate credit for time she spent at liberty on parole, simply checked the “No” box.
C.R. at 64. Had Inmate fairly raised a challenge to 61 Pa. C.S. §6138(a)(2.1) in her
administrative appeal, she would have preserved this issue. See Smith v. Pa. Bd. of
Prob. & Parole (Pa. Cmwlth., No. 992 C.D. 2015, filed August 8, 2017) 2017 WL
3389014 (unreported) (inmate who challenged validity of Board’s recalculation of
his maximum date and the denial of credit for the time he spent at liberty on parole

       1
        Pursuant to 210 Pa. Code §69.414, an unreported panel decision of this Court, issued after
January 15, 2008, may be cited for its persuasive value, but not as binding precedent.


                                               14
entitled to a remand under Pittman for an adequate explanation why the Board denied
him credit under 61 Pa. C.S. §6138(a)(2.1)).


            However, Smith is distinguishable from the instant case. Because
Inmate failed to raise, at the administrative level, any specific challenge to the
Board’s exercise of discretion to deny her credit for time she spent at liberty on
parole, we find our decisions in Headley and Fryer persuasive on the waiver issue.
In short, issues not raised by a CPV before the Board in an administrative appeal,
will not be considered by the reviewing court. McCaskill.


                                 IV. Conclusion
            For the above reasons, we discern no error or abuse of discretion in the
Board’s order affirming its recommitment of Inmate as a CPV to serve 36 months’
backtime and its recalculation of Inmate’s maximum date as November 21, 2019.
Accordingly, we affirm. In addition, we grant Counsel’s petition to withdraw as
appointed counsel.




                                      ROBERT SIMPSON, Judge




                                        15
         THE COMMONWEALTH COURT OF PENNSYLVANIA

Tameka Evans,                          :
                        Petitioner     :
                                       :
            v.                         :   No. 1005 C.D. 2017
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :



                                     ORDER

            AND NOW, this 2nd day of April, 2018, for the reasons stated in the
foregoing opinion, the order of the Pennsylvania Board of Probation and Parole is
AFFIRMED.        Further, Counsel Allison J. Rice’s Motion to Withdraw is
GRANTED.




                                      ROBERT SIMPSON, Judge
