           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clarence Smith,                        :
                   Petitioner          :
                                       :
      v.                               : No. 1663 C.D. 2017
                                       : SUBMITTED: August 24, 2018
Pennsylvania Board of                  :
Probation and Parole,                  :
                  Respondent           :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                     FILED: March 14, 2019

      Clarence Smith (Petitioner) petitions for review from the Pennsylvania Board
of Probation and Parole’s (Board) September 27, 2017, ruling, through which it
dismissed as untimely Petitioner’s May 4, 2017, Administrative Remedies Form. In
this Administrative Remedies Form, Petitioner challenged the Board’s December 3,
2015, decision, which recommitted Petitioner for 12 months in state prison as a
convicted parole violator (CPV), revoked credit for the time Petitioner had served at
liberty on parole, and recalculated Petitioner’s maximum parole violation expiration
date as October 8, 2022. Petitioner’s appointed counsel, Victor Rauch, Esquire
(Counsel), has submitted an Amended Petition to Withdraw as Counsel (Amended
Petition to Withdraw), asserting that Petitioner’s Petition for Review is untimely,
procedurally improper, and frivolous. We deny Counsel’s Amended Petition to
Withdraw without prejudice and direct Counsel to file either a proper Petition to
Withdraw and a no-merit letter, or an advocate’s brief, within 30 days.
      On September 22, 1988, Petitioner pled guilty in the Court of Common Pleas
of Philadelphia County (Trial Court) to Burglary and Conspiracy, for which he
received an aggregate sentence of 12 to 24 years. Certified Record (C.R.) at 1. On
February 6, 1989, Petitioner was found guilty of Robbery and sentenced to 10 to 20
years’ incarceration, to run concurrent with his Burglary and Conspiracy sentences.
Petitioner was paroled on October 26, 2000, at which point the Board set his
maximum date as December 11, 2011. Id. at 5-7. Over the following decade,
Petitioner was arrested, convicted, incarcerated, and re-paroled a number of times
for various offenses. Some of these convictions resulted in extensions in the
maximum date for his original sentence. A detailed recitation of these events is not
relevant for purposes of disposition of this appeal. See id. at 12-136.
      On December 2, 2014, while still on parole for his original sentence, Petitioner
was arrested in Philadelphia and charged with several counts of Access Device
Fraud, Attempted Forgery, Forgery, and Theft. Id. at 137-47. On May 20, 2015,
Petitioner was convicted on 1 count of Attempted Forgery, as well as 3 counts of
Forgery, and was sentenced to 6 to 23 months in county prison, followed by 6 years
of probation. Id. at 160-65. On December 3, 2015, as a result of this new conviction,
the Board recommitted Petitioner as a CPV for his original Burglary/Conspiracy
sentence and ordered Petitioner to serve 12 months in state prison with no credit for
the time he had spent at liberty on parole between February 2, 2011, and December
3, 2014. Id. at 169-70. His maximum date for the original sentence was recalculated
as October 8, 2022. Id. at 169. Petitioner had 30 days from the Board’s December 3,
2015, decision to file an administrative challenge thereto.1

      1
             An interested party, by counsel unless unrepresented, may appeal a
             revocation decision. Appeals shall be received at the Board’s
             Central Office within 30 days of the mailing date of the Board’s


                                             2
       Petitioner subsequently sent a letter to the Board on December 23, 2015,
challenging the Board’s decision, due to his belief that, in essence, the Board had
unlawfully extended his judicially imposed sentence, which Petitioner claimed had
expired on December 11, 2011, by imposing backtime, improperly failed to give him
credit for time served both at liberty on parole and on the Board’s detainer, and
illegally recalculated his maximum date. Supplemental Certified Record (S.C.R.) at
3A, 7A. In response to this letter, the Board issued a decision on March 9, 2016,
affirming its December 3, 2015, decision. Therein, the Board stated that it had
properly exercised its discretionary authority by ordering Petitioner to be
recommitted for 12 months, due to his convictions, and by declining to give him
credit for time spent at liberty on parole which extended Petitioner’s maximum date
to October 8, 2022. Id. at 192. Petitioner had 30 days to appeal the Board’s March
9, 2016, final adjudication to this Court. Pa. R.A.P. 1512.
       Rather than file a timely appeal of the Board’s March 9, 2016, final
adjudication, however, Petitioner mailed an Administrative Remedies Form to the
Board on June 14, 2016, claiming, without elaboration, that the Board had
committed errors of law and violated his constitutional rights in its decision allegedly
issued on December 29, 2015. C.R. at 197-198. However, there is nothing in the
Certified Record indicating that the Board issued a decision on December 29, 2015,
and there is no evidence in the record showing that the Board imposed any additional
sanctions upon Petitioner after issuing its decision on March 9, 2016. For this reason,


                order. When a timely appeal of a revocation decision has been filed,
                the revocation decision will not be deemed final for purpose of
                appeal to a court until the Board has mailed its decision on the
                appeal. This subsection supersedes 1 Pa. Code § 35.226 (relating to
                final orders).
37 Pa. Code § 73.1(a)(1); see also id. § 73.1(b)(1) (virtually identical regulation dealing with
petitions for administrative review).

                                               3
we must logically assume that Petitioner was referring to his own December 23,
2015, letter, through which he challenged the Board’s December 3, 2015, decision,
and which the Board received on December 29, 2015.
       Nearly a year passed without a reply from the Board, prompting Petitioner to
submit another Administrative Remedies Form on May 4, 2017, in which Petitioner
claimed the Board had unconstitutionally extended his maximum date beyond that
which had been imposed by the Trial Court and, in addition, had violated the
separation of powers doctrine in doing so. S.C.R. at 8A-9A.2
       The Board replied on September 27, 2017, to Petitioner’s May 4, 2017,
Administrative Remedies Form, explaining that it was dismissing the Form due to
lack of timeliness, as Petitioner had not submitted it within the mandated 30-day
appeal window after the Board had issued its December 3, 2015, decision. Id. at 12A.
       The Board then responded on October 30, 2017, to Petitioner’s June 14, 2016,
Administrative Remedies Form, stating that it would not take action on the matter
because this request for relief was procedurally improper. See C.R. at 199.
Specifically, the Board informed Petitioner that:
              The Board regulation authorizing administrative relief
              does not permit additional appeals after the Board issues a
              final adjudication. 37 Pa. Code § 73.1. Nor is there a right
              to request reconsideration of the final adjudication [i.e.,
              the Board’s March 9, 2016 ruling]. Rather, the next appeal
              step was to seek relief from the Commonwealth Court.
Id.




       2
         Petitioner also mailed a follow-up letter to the Board on May 25, 2017, in which he
inquired as to the status of his administrative challenge. S.C.R. at 10A-11A.


                                             4
       On November 3, 2017, Petitioner filed the instant Petition for Review3 from
the Board’s September 27, 2017, ruling.4 We subsequently appointed Counsel to
represent Petitioner and, on February 1, 2018, Counsel submitted an Amended
Petition for Review containing boilerplate language addressing a wide range of
issues.5
       On June 20, 2018, Counsel filed his Petition to Withdraw and an Anders
Brief.6 In his Petition to Withdraw, Counsel stated he had “made a conscientious
examination of the record and . . . determined the appeal is wholly frivolous.”


       3
          Petitioner filed a mandamus action against the Board on July 11, 2017, docketed as Smith
v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 315 M.D. 2017), through which
he sought to compel the Board to adjudicate his May 4, 2017, Administrative Remedies Form.
Petition for Writ of Mandamus at 1-4. As already noted, the Board took action regarding the May
4, 2017, Administrative Remedies Form on September 27, 2017. On October 3, 2017, in response
to the Board’s preliminary objections to Petitioner’s mandamus action, we issued a per curiam
order granting Petitioner 30 days to appeal the Board’s September 27, 2017 ruling. Commonwealth
Court Order, 10/3/17, at 1.

       4
       Petitioner alleges again that the Board improperly and unconstitutionally extended his
maximum date without articulating a justification for this extension. Petition for Review at 2.

       5
         Counsel argued that the Board imposed an illegal sentence, improperly declined to award
Petitioner credit for time served at liberty on parole, and erred by failing to explain why it had
declined to award such credit. Amended Petition for Review at 3-4. Counsel further claimed that
61 Pa. C.S. § 6138(a)(2), which gave the Board the ability to recalculate Petitioner’s maximum
date, represented an unconstitutional “violation of separation of powers, double jeopardy, and due
process principles.” Id. at 3-4.

       6
         Pursuant to Anders v. California, 386 U.S. 738 (1967), court-appointed counsel must file
what is known as an Anders brief when seeking to withdraw from representation in certain
circumstances. See Com. v. Santiago, 978 A.2d 349, 353-55 (Pa. 2009). An Anders brief was
unnecessary in this matter, however, as Petitioner did not raise claims that implicated his
constitutional right to counsel. See Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 n.4
(Pa. Cmwlth. 2010).
        Rather, a no-merit letter would have been more appropriate. In a no-merit letter, appointed
counsel seeks to withdraw from representation because “the case lacks merit, even if it is not so
anemic as to be deemed wholly frivolous.” Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).


                                                5
Petition to Withdraw at 1. Counsel explained that Petitioner failed to timely appeal
the Board’s March 9, 2016, denial of his December 29, 2015, request for
administrative relief. Anders Br. at 10-11. Rather, Petitioner filed an Administrative
Remedies Form on June 14, 2016, which was procedurally improper. Id.7 Counsel
advised Petitioner in writing of his determination and directed Petitioner to retain
another attorney, or file a pro se brief with our Court, if Petitioner disagreed with
Counsel’s conclusions. See Petition to Withdraw at 4.
       On October 16, 2018, we directed the Board to file a Supplemental Record
within 30 days, as a number of critical documents were missing from the Certified
Record, including copies of some of Petitioner’s filings with the Board.
Commonwealth Court Order, 10/16/18, at 1. We also gave counsel 45 days from the
date of the Board’s compliance with this order to file either an Amended Petition to
Withdraw or an Advocate’s Brief. Id. The Board filed its Supplemental Certified
Record on December 3, 2018, whereupon Counsel elected to submit an Amended
Petition to Withdraw and an Amended Anders Brief on January 9, 2019. These
filings are substantially similar to Counsel’s original Petition to Withdraw and
Anders Brief. Compare Amended Petition to Withdraw at 1 and Amended Anders
Br. at 4-18 with Petition to Withdraw at 1 and Anders Br. at 4-16. Inexplicably,
however, Counsel did not address therein Petitioner’s May 4, 2017, Administrative
Remedies Form.
       Before considering the validity of Petitioner’s substantive arguments, we must
assess the adequacy of Counsel’s Amended Petition to Withdraw and no-merit letter.

       7
           Counsel further explained that the Board did not exceed its authority by extending
Petitioner’s maximum date to October 8, 2022, and declining to give him credit for time served at
liberty on parole. Anders Br. at 11-14. Next, Counsel recognized that Petitioner could not challenge
the Board’s decision on the basis that it failed to explain why it chose to deny him credit for time
served at liberty on parole, because he failed to properly petition for review of the Board’s decision.
Id. at 15.

                                                  6
“A no-merit letter must include an explanation of ‘the nature and extent of counsel’s
review and list each issue the petitioner wished to have raised, with counsel’s
explanation of why those issues are meritless.’” Seilhamer, 996 A.2d at 43 (quoting
Com. v. Turner, 544 A.2d 927, 928 (Pa. 1988) (brackets omitted)). As long as a no-
merit letter satisfies these basic requirements, we may then review the soundness of
a petitioner’s request for relief. Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth.
2009). However, in the event the letter fails on technical grounds, we must deny
appointed counsel’s request for leave to withdraw, without delving into the
substance of the underlying petition for review, and may direct appointed counsel to
file either an amended request for leave to withdraw or a brief on behalf of his client.
Id.
      Here, we find that Counsel’s no-merit letter is deficient, as he completely
ignored the Board action which caused Petitioner to seek relief from our Court,
namely, the Board’s dismissal as untimely of Petitioner’s May 4, 2017,
Administrative Remedies Form. Therefore, as Counsel has conducted an inadequate
review of the record, we deny Counsel’s Amended Petition to Withdraw without
prejudice and direct him to file either a proper Petition to Withdraw and a no-merit
letter, or an advocate’s brief, within 30 days.


                                           ________________________________
                                           ELLEN CEISLER, Judge




                                           7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Clarence Smith,                        :
                   Petitioner          :
                                       :
      v.                               : No. 1663 C.D. 2017
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                  Respondent           :



                                    ORDER

      AND NOW, this 14th day of March, 2019, Victor Rauch, Esquire’s (Counsel)
Amended Petition to Withdraw as Counsel is hereby DENIED. Counsel shall file
either a proper Petition to Withdraw and a no-merit letter, or an advocate’s brief,
within 30 days from the date of this order.
      Jurisdiction retained.


                                       ________________________________
                                       ELLEN CEISLER, Judge
