        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Melvin L. Lovett,                        :
                           Petitioner    :
                                         :
             v.                          :   No. 1153 C.D. 2018
                                         :   Submitted: May 31, 2019
Pennsylvania Board                       :
of Probation and Parole,                 :
                           Respondent    :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                         FILED: August 21, 2019


             Petitioner Melvin L. Lovett (Lovett) petitions for review of a final
determination of the Pennsylvania Board of Probation and Parole (Board), dated
July 27, 2018, which denied Lovett’s request for administrative relief, challenging
the Board’s recalculation of his maximum sentence date as July 26, 2020. Lovett’s
counsel, David Crowley, Esquire (Counsel), filed a motion to withdraw as counsel.
Counsel asserted in an initial “no-merit” letter that the issues Lovett raises in his
petition for review are without merit. Following our review of Counsel’s initial
no-merit letter, we concluded that the letter was inadequate and denied Counsel’s
motion for leave to withdraw as counsel. We permitted Counsel to submit an
amended motion for leave to withdraw as counsel and no-merit letter in response to
our order, and Counsel has done so. We now vacate the Board’s decision, remand
the matter for issuance of a new decision, and dismiss as moot Counsel’s amended
motion for leave to withdraw.
             Lovett had been incarcerated at a state correctional institution when the
Board granted him parole and released him on October 15, 2009. (Certified Record
(C.R.) at 6.) At the time of his parole, Lovett had a maximum sentence date of
September 4, 2016. (Id.) On November 5, 2010, the Philadelphia Police Department
arrested Lovett on new criminal charges, and the Board detained him on these
charges until the charges were dismissed on June 6, 2012. (Id. at 10-11.) On
December 19, 2013, the Philadelphia Police Department arrested Lovett and charged
him with felony possession of a firearm. (Id. at 16.) On that same date, the Board
issued a detainer against Lovett. (Id. at 17.) Lovett waived his right to attend a
revocation hearing relating to the pending criminal charges. (Id. at 19-20, 24.) On
January 22, 2014, the Board recommitted Lovett as a technical parole violator to
serve 6 months at a state correctional institution. (Id. at 40-44.) At that time, the
Board recalculated Lovett’s maximum sentence date to December 18, 2016. (Id.)
Lovett pleaded guilty to the charge of felony possession of a firearm on
April 10, 2015. (Id. at 66-70.) Lovett, again, waived his right to a revocation
hearing, and, on October 19, 2015, the Board recommitted Lovett as a convicted
parole violator to serve 24 months consecutive to his recommitment as a technical
parole violator. (Id. at 48, 87, 89.) In doing so, the Board recalculated Lovett’s
maximum sentence date to July 26, 2020. (Id. at 87, 89.) By decision issued on
May 18, 2017, the Board reparoled Lovett. (Id. at 93-95.)




                                          2
               Lovett then filed a request for administrative relief, challenging the
Board’s recalculation of his sentence.1 (Id. at 98.) The Board denied Lovett’s
request for administrative relief, explaining only: “Upon review of your case, it was
determined there is no indication the Board failed to appropriately recalculate your
maximum date and your request for relief is denied.” (Id. at 103.) Lovett then filed
a petition for review in this Court.
               We begin by addressing Counsel’s request to withdraw from his
representation of Lovett. When no constitutional right to counsel is involved in a
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

       1
         Lovett actually requested administrative relief from the Board’s decision entered on
October 19, 2015, which recalculated his maximum sentence date as July 26, 2020. The Board
did not receive Lovett’s administrative appeal until May 24, 2017, more than 30 days after the
Board’s recorded action. Pursuant to 37 Pa. Code § 73.1(b)(1): “Petitions for administrative
review shall be received at the Board’s Central Office within 30 days of the mailing date of the
Board’s determination.” Further, 37 Pa. Code § 73.1(b)(3) provides: “[P]etitions for
administrative review which are out of time under this part will not be received.” We are unsure
as to why the Board did not reject the administrative appeal as untimely. Regardless, we will
review the merits of the appeal.
       2
           In Anders v. California, 386 U.S. 738 (1967), the Supreme Court of the United States
held that in order for a criminal defendant’s counsel to withdraw from representing his client in an
appeal, the 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. Pa. Bd. of Prob. & Parole, 502 A.2d 758, 761 (Pa.
Cmwlth. 1985). In seeking to withdraw, counsel must submit a petition to withdraw and a brief
“referring to anything in the record that might arguably support the appeal.” Cmwlth. v.
Baker, 239 A.2d 201, 202 (Pa. 1968) (quoting Anders, 386 U.S. at 744). The Supreme Court of
Pennsylvania, however, has held that in matters that are collateral to an underlying criminal
proceeding, such as parole matters, 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. Cmwlth. v. Turner, 544 A.2d 927, 928-29
(Pa. 1988).


                                                  3
of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009) (en banc), this Court held
that a constitutional right to counsel in a parole 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.

Hughes, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).
The record in this matter contains no suggestion by Lovett that he did not commit
the crimes for which he received a new criminal conviction, nor does Lovett suggest
any reasons constituting justification or mitigation for his new criminal conviction.
Thus, Lovett only has a statutory right to counsel under Section 6(a)(10) of the Public
Defender Act.3
                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.4        Reavis v. Pa. Bd. of Prob. & 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


       3
           Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).
       4
          Counsel served Lovett with his petition to withdraw and his amended no-merit letter. In
a letter addressed to Lovett, Counsel advised Lovett of his right to retain counsel and to file a brief
on his own behalf. Thus, Counsel has complied with these requirements.

                                                  4
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 making an independent review of the merits of the appeal to determine
whether Lovett’s appeal has no merit, we must first evaluate Counsel’s amended
no-merit letter to determine whether it complies with the requirements for
withdrawal applications.
               In his request for administrative relief before the Board, Lovett
challenged the Board’s authority to recalculate his judicially imposed sentence,
alleging that the Board’s recalculation of Lovett’s maximum sentence date to extend
it beyond its original date: (1) violates the separation of powers doctrine; (2) violates
his right to procedural due process; and (3) eviscerates the judicial discretion
provided to the courts under Section 9721(a) of the Sentencing Code, 42 Pa. C.S.
§ 9721(a). Lovett also alleges that the Board’s recalculation is improper because
Section 6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138(a)(2),
is in direct conflict with Section 6138(a)(5) of the Code, 61 Pa. C.S. § 6138(a)(5).5




       5
        Section 6138(a) of the Code sets forth provisions pertaining to violation of terms of parole
by a convicted parole violator. Section 6138(a)(2) of the Code provides:
               If the parolee’s recommitment is so ordered, 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.
Section 6138(a)(5) of the Code provides:
              If a new sentence is imposed on the parolee, the service of the balance of
       the term originally imposed by a Pennsylvania court shall precede the
       commencement of the new term imposed in the following cases:


                                                 5
In the petition for review filed with this Court, Lovett raises the following
issues: (1) the Board improperly declined to credit his original sentence; and (2) the
Board did not articulate contemporaneous reasons for refusing to award credit.
Counsel’s amended no-merit letter identifies all of Lovett’s arguments and includes
an adequate analysis of the merits of each issue raised. We, therefore, will proceed
to consider whether Counsel is correct in asserting that Lovett’s appeal has no merit.
               Section 507 of the Administrative Agency Law, 2 Pa. C.S. § 507,
provides: “All adjudications of a Commonwealth agency shall be in writing, shall
contain findings and the reasons for the adjudication, and shall be served upon all
parties or their counsel personally, or by email.” (Emphasis added.) Based upon the
record before this Court, we must conclude that the Board’s decision does not meet
the requirements of Section 507, as it does not explain the reasons for the Board’s
determination that it properly calculated Lovett’s maximum sentence date. The
Court, therefore, is unable to engage in effective appellate review.6
               Accordingly, we vacate the Board’s decision and remand the matter to
the Board for the issuance of a decision that sets forth the basis for its determination



               (i) If a person is paroled from a State correctional institution and the new
               sentence imposed on the person is to be served in the State correctional
               institution.
               (ii) If a person is paroled from a county prison and the new sentence
               imposed upon him is to be served in the same county prison.
               (iii) In all other cases, the service of the new term for the latter crime shall
               precede commencement of the balance of the term originally imposed.
       6
          This analysis is consistent with our memorandum opinion in Brown v. Pennsylvania
Board of Probation and Parole (Pa. Cmwlth., No. 710 C.D. 2018, filed January 25, 2019).
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may be cited
“for its persuasive value, but not as binding precedent.”

                                                  6
that the Board properly calculated Lovett’s maximum sentence date, and we dismiss
as moot Counsel’s amended petition for leave to withdraw as counsel.




                                       P. KEVIN BROBSON, Judge




                                       7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Melvin L. Lovett,                         :
                           Petitioner     :
                                          :
            v.                            :   No. 1153 C.D. 2018
                                          :
Pennsylvania Board                        :
of Probation and Parole,                  :
                           Respondent     :



                                        ORDER


            AND NOW, this 21st day of August, 2019, the order of the
Pennsylvania Board of Probation and Parole (Board) is VACATED, and the matter
is REMANDED to the Board for the issuance of a new decision. The motion to
withdraw as counsel filed by David Crowley, Esquire, is DISMISSED as moot.
            Jurisdiction relinquished.




                                          P. KEVIN BROBSON, Judge
