                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Xavier Little,                                 :
                             Petitioner        :
                                               :
                      v.                       :
                                               :
Pennsylvania Board of                          :
Probation and Parole,                          :   No. 1140 C.D. 2017
                             Respondent        :   Submitted: March 2, 2018


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: June 18, 2018


              Xavier Little (Little) petitions this Court for review of the Pennsylvania
Board of Probation and Parole’s (Board) July 18, 2017 order denying his request for
administrative relief. Little is represented in this matter by Kent D. Watkins, Esquire
(Counsel), who has filed an Application to Withdraw as Counsel (Application). After
review, we deny Counsel’s Application.
              Little is an inmate at the State Correctional Institution at Mahanoy (SCI-
Mahanoy). On January 5, 2011, Little was sentenced to 2 years and 7 months to 10
years of imprisonment for criminal conspiracy and robbery of a motor vehicle. At
that time, his maximum sentence release date was October 11, 2019. Thereafter, he
was paroled, recommitted and reparoled.1



       1
         During that time, Little’s supervision was transferred to Georgia, and he was charged with
additional offenses.
               By January 4, 2016 decision (mailed January 7, 2016), the Board
recommitted Little as a technical parole violator (TPV) to serve 9 months for multiple
technical parole violations. Notwithstanding, the Board declared, in pertinent part:

               YOU   ARE REPAROLED AUTOMATICALLY WITHOUT FURTHER
               ACTION OF THE BOARD ON 07/12/2016 (2ND . . . TPV
               RECOMMITMENT) PROVIDED YOU DO NOT 1) COMMIT A
               DISCIPLINARY    INFRACTION  INVOLVING     ASSAULTIVE
               BEHAVIOR, SEXUAL ASSAULT, A WEAPON OR CONTROLLED
               SUBSTANCE; 2) SPEND MORE THAN 90 DAYS IN SEGREGATED
               HOUSING DUE TO ONE OR MORE DISCIPLINARY INFRACTIONS;
               3) REFUSE PROGRAMMING OR A WORK ASSIGNMENT.
               PAROLE RELEASE SUBJECT TO DETAINERS.

Certified Record (C.R.) at 109. However, by April 22, 2016 decision (mailed April
26, 2016), the Board deleted (i.e., revoked) the automatic reparole portion of its
January 4, 2016 decision, “due to [Little’s] recent misconduct.” C.R. at 115.
               On April 28, 2016, Little submitted an Administrative Remedies Form
challenging the Board’s decision, stating:

               I have received 60 days for disobeying an order and 30 days
               for another disobeying an order and 30 days for presence in
               an unauthorized area[,] and they are concurrent for
               misconduct #B867785[.] So total I have exactly 90 days
               DC time and I did not commit any of the listed infractions
               on my green sheet and I don’t have more than 90 days in
               segregated housing. Nor did I refuse any programming or
               work assignment.

C.R. at 117.
               On July 18, 2017, the Board denied Little’s request for administrative
relief, stating in pertinent part:

               While in a state correctional institution, [Little] incurred
               misconducts.    The institution provided [Little] with
               misconduct hearings, which resulted in multiple
               misconducts and a total of 110 days in segregated housing.


                                             2
              [Section 6138(d)(5) of t]he Prisons and Parole Code
              [(Parole Code), 61 Pa. C.S. § 6138(d)(5),] provides that
              automatic reparole does not apply to [TPVs] who commit
              disciplinary infractions resultant in more than 90 days in
              segregated housing. . . .         Because [Little] incurred
              qualifying misconducts under the statute, the Board acted
              within its authority by rescinding automatic reparole and
              listing [Little] for reparole review. Moreover, the Board
              acted within its discretion by taking this action without
              conducting an additional evidentiary hearing because
              [Little] was already afforded due process to challenge the
              misconduct at issue in the hearing held at the state
              correctional institution. There is no reason for the Board to
              re-litigate those facts.

C.R. at 123.      Little appealed to this Court.2          Counsel subsequently filed his
Application and a Turner letter.3
              This Court has held that in order to withdraw, “counsel . . . must provide
a ‘no-merit’ letter which details ‘the nature and extent of [counsel’s] review and
list[s] each issue the petitioner wished to have raised, with counsel’s explanation of
why those issues are meritless.’” Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth.
2009) (quoting Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988)). “[C]ounsel
must fully comply with the procedures outlined in Turner to ensure that each of the


       2
         “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).
       3
              [P]er [Commonwealth v.] Turner, [544 A.2d 927 (Pa. 1988),] Epps [v.
              Pennsylvania Board of Probation and Parole, 565 A.2d 214 (Pa.
              Cmwlth. 1989)], and Frankhouser [v. Pennsylvania Board of
              Probation and Parole, 598 A.2d 607 (Pa. Cmwlth. 1991)], counsel
              seeking to withdraw from representation of a petitioner seeking
              review of a determination of the Board must provide a ‘no-merit’
              letter which details ‘the nature and extent of [the attorney’s] review
              and list[s] each issue the petitioner wished to have raised, with
              counsel’s explanation of why those issues are meritless.’ Turner, . . .
              544 A.2d at 928.
Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009).
                                               3
petitioner’s claims has been considered and that counsel has [] substantive reason[s]
for concluding that those claims are meritless.” Hont v. Pa. Bd. of Prob. & Parole,
680 A.2d 47, 48 (Pa. Cmwlth. 1996). Counsel is also required to “notify the parolee
of his request to withdraw, furnish the parolee with . . . a no-merit letter satisfying the
requirements of Turner, and inform the parolee of his right to retain new counsel or
submit a brief on his own behalf.” Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28,
33 (Pa. Cmwlth. 2006). This Court must then “conduct its own independent review
of the petition to withdraw and must concur in counsel’s assessment before [it] may
grant counsel leave to withdraw.” Hont, 680 A.2d at 48.
             In his Turner letter to this Court, Counsel explained:

             The [Board] denied [Little] automatic reparole on the basis
             [of] multiple institutional misconducts resulting in a total of
             110 days in segregated housing in violation of [Section
             6138(d)(5) of the Parole Code,] which states, in essence,
             that [Little] shall be automatically reparoled without further
             action by the [B]oard unless he has spent more th[a]n 90
             days in segregated housing due to one or more disciplinary
             infractions. 61 Pa. C.S.[] § 6138(d).
             Although [Little] was not automatically paroled pursuant to
             [Section 6138 of the Parole Code,] [Counsel] has learned
             [that Little] has [sic] subsequently reparoled to a detainer
             from the stat[e] of Georgia and has waived extradition and
             is proceeding in the Court of Common Pleas of Schuylkill
             County on December 6, 2017, rend[er]ing the issue of
             automatic reparole moot.
             The certified record provides no evidence the [Board’s]
             actions constitute an error of law, violate [Little’s]
             constitutional rights or are not supported by substantial
             evidence. The record does not reveal any other issues that
             may be raised on [Little’s] behalf.
             In light of my exhaustive examination of the certified
             record, and research of applicable case law, I have
             concluded that [Little’s] appeal from the revocation of his
             parole has no basis in law or in fact and is, therefore,
             frivolous. In view of my conclusion that [Little’s] appeal
                                            4
                  has no merit, I am filing a petition with the Honorable Court
                  for leave to withdraw my appearance as [Little’s] appellate
                  counsel. By copy of this letter, I am advising [Little] of his
                  right to retain substitute counsel, if he so desires, and of his
                  right to raise any points which he may deem worthy of
                  merit in a pro se brief filed with this Honorable Court.

Counsel Turner Letter at 5-6.
                  Counsel’s Turner letter contains a scant procedural history of Little’s
case and explains Little’s challenges to the Board’s revocation of his automatic
reparole, i.e., Little did not commit disciplinary infractions warranting such action.
The Turner letter also includes Counsel’s review of the record and relevant statutory
law. Counsel served Little with a copy of the no-merit letter and his Application, and
notified Little that he may either obtain substitute counsel or file a brief on his own
behalf.4 However, Counsel does not provide sufficient explanation for why Little’s
issue on appeal is without merit.
                  Despite that Little’s appeal is based purely upon his claim that he only
spent 90 days in segregated housing, Counsel merely repeated the Board’s conclusion
that Little spent 110 days in segregated housing and, thus, the Board was authorized
to revoke his automatic reparole.                 Counsel offered no explanation and did not
reference any source or documentation to support the 110-day calculation. Further,
Counsel’s recitation of the procedural history of Little’s Pennsylvania and Georgia
criminal cases does not adequately describe how the Georgia detainer makes Little’s
automatic reparole moot.
                  Consequently, Counsel did not address Little’s issue with sufficient
detail to provide a substantive reason for concluding that his claim was meritless.
Hont.         Without that information, this Court cannot “concur in [C]ounsel’s
assessment.” Id. at 48. As a result, Counsel’s letter failed to fully comply with the
Turner requirements. See id.

        4
            Little did not obtain substitute counsel or file a brief.
                                                       5
            Accordingly, Counsel’s Application is denied without prejudice.
Counsel has 30 days to either file an amended application and Turner letter that
adequately addresses the issue raised in Little’s request for administrative relief and
Counsel’s mootness determination, or to submit a brief on the merits.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Xavier Little,                           :
                          Petitioner     :
                                         :
                   v.                    :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 1140 C.D. 2017
                          Respondent     :


                                       ORDER

             AND NOW, this 18th day of June, 2018, the Application to Withdraw as
Counsel filed by Kent D. Watkins, Esquire (Counsel) is DENIED. Counsel shall
either file a renewed application to withdraw and an amended no-merit letter, or
submit a brief on the merits within 30 days from the date of this Order.


                                       ___________________________
                                       ANNE E. COVEY, Judge
