           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Horace Harriott, Jr,                :
                    Petitioner      :
                                    :
            v.                      :
                                    :
Pennsylvania Board of Probation and :
Parole,                             : No. 48 C.D. 2015
                 Respondent         : Submitted: August 7, 2015


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                           FILED: September 10, 2015


             Pending before this Court is the application to withdraw appearance
(withdrawal application) filed by David Crowley, Esq. (Counsel) and petition for
review he filed on behalf of Horace Harriott, Jr. (Petitioner) from an order of the
Pennsylvania Board of Probation and Parole (Board) recommitting Petitioner as a
convicted parole violator (CPV) and recalculating his parole violation maximum
sentence date. Counsel seeks permission to withdraw from representing Petitioner on
the basis that his appeal is without merit. For the reasons that follow, we affirm the
Board’s order and grant Counsel leave to withdraw.
                                                I.
              In 1997, Petitioner was sentenced to serve eight to sixteen years with
regard to two charges for manufacturing, selling, delivering and/or possessing with
intent to distribute drugs, with a minimum release date of December 2, 2004, and a
maximum date of December 2, 2012. Following prior paroles, parole revocations and
re-paroles, Petitioner was paroled on March 6, 2006, and was arrested on June 15,
2006, by the York City Police Department causing the Board to order him detained
pending disposition of his criminal charges. By decision dated April 17, 2007, the
Board ordered Petitioner recommitted as a CPV to serve 18 months of back time with
regard to his original sentence and 18 months for his new offenses. He was paroled
from his original sentence (bearing offense tracking number (OTN) DF9780) to his
detainer sentence (OTN HS5330) on August 29, 2008, and he was paroled from his
detainer sentence on November 24, 2009,1 until March 19, 2010, when he was
declared delinquent for technical parole violations. His whereabouts were unknown
until his arrest on May 26, 2010, when he was detained pending his violation status.
On September 20, 2010, the Board recommitted Petitioner as a technical parole
violator to serve nine months of back time. He was again re-paroled on February 28,
2011, when his maximum sentence date was recalculated as December 20, 2013.


              Subsequently, Petitioner was arrested on July 24, 2011, by the
Pennsylvania State Police for simple assault and harassment and the Board ordered

       1
          Although Counsel indicates that this re-parole occurred on August 24, 2009, the Board did
not decide to release him until decision dated October 22, 2009, and his actual date of release, as
certified by the Board’s Secretary, is listed as November 24, 2009. (Certified Record [C.R.] at
23a24a.) Further, his date of parole is listed on the Pennsylvania Department of Corrections’
(DOC) “Moves Report” as November 24, 2009. (Id. at 58a.)




                                                2
him detained pending disposition of the new criminal charges, which were ultimately
dismissed on September 21, 2011.        As per the Board’s report of Petitioner’s
supervision history, Petitioner was placed in the Keystone Community Corrections
Center from September 21, 2011, “until he was working and had an approved
residence. On 10/12/2011[,] [Petitioner] was successfully discharged from Keystone
CCC…. [but] [o]n 11/08/2011 [he] was placed back into the Keystone CCC for 30
day[s]….” (C.R. at 41a.)


            On August 29, 2012, Petitioner was arrested by the Scranton Police
Department for the offenses of manufacture, delivery or possession with intent to
manufacture or deliver heroin and promoting prostitution, and the Board ordered him
detained pending disposition of these criminal charges. The Board also recommitted
him as a technical parole violator to serve nine months of back time after resolution
of his criminal charges for leaving the district without permission, changing his
residence without permission, and failing to abide by written instructions. The Board
advised that his parole violation maximum date with delinquency time was August 8,
2014, subject to change if convicted on his outstanding criminal charges.


            Pursuant to a November 4, 2013 guilty plea, the Court of Common Pleas
of Lackawanna County found Petitioner guilty and sentenced him to a term of
imprisonment ranging between 3.5 to 7 years.        Petitioner executed a waiver of
revocation hearing and counsel/admission form in which he admitted that he was
convicted of new criminal charges that violated the terms of his parole.
Consequently, the Board recommitted Petitioner to a period of 48 months as a CPV.




                                          3
By decision dated August 29, 2014, it also recalculated his parole violation maximum
date as January 9, 2018.2


              Petitioner filed a timely administrative appeal, claiming that the Board
imposed an excessive recommitment term, lacked authority to recalculate Petitioner’s
maximum sentence date, and improperly recalculated the maximum sentence date to
January 9, 2018, by failing to credit Petitioner for “all of the time to which he was
entitled.” (C.R. at 87a.)


              By order mailed January 5, 2015, the Secretary of the Board issued a
decision explaining that the Board’s order imposing a recommitment of 48 months
for the offenses to which Petitioner pled guilty was not excessive because it fell
within the presumptive recommitment ranges for the offenses of 24 to 36 months and
six to twelve months, respectively, under 37 Pa. Code §75.2, and, therefore, was not
subject to challenge. Further, the Board reasoned that it had discretion to continue
Petitioner on parole or recommit him as a CPV for the offenses in question under 61
Pa. C.S. §6138(a)(1) and was authorized to recalculate his maximum date without
giving him credit for the period he was at liberty on parole as per 61 Pa. C.S.
§6138(a)(2). Finally, with regard to the recalculated maximum sentence date, the
Board reasoned:

              When the Board paroled your client from a state
              correctional institution on February 28, 2011, his max date
              was December 20, 2013. This means he had 1026 days
       2
          The order to recommit makes clear that Petitioner forfeited his prior time at liberty on
parole from August 29, 2009, through March 19, 2010, or a total of 567 days. (C.R. at 77a.)




                                                4
            remaining on his sentence at the time of parole. In light of
            his recommitment as a convicted parole violator, the Board
            had statutory authority to deny him credit for the period that
            he spent at liberty on parole… Adding the 567 days of
            prior parole liberty forfeited means he still had 1593 days
            remaining on his sentence based on his recommitment.

                                        ***

                   Based on these facts, the Board did not give your
            client credit for the period he was incarcerated from August
            29, 2012 to November 4, 2013 because he was being held
            on both the Board detainer and the new criminal charges
            during that period. Gaito v. Board of Probation and
            Parole, 412 A.2d 568 (Pa. 1980). The Board did, however,
            give your client 66 days of credit for prior confinement time
            for the time he was incarcerated from July 24, 2011 to
            September 28, 2011, but not recommitted. Subtracting the
            credit the Board awarded your client from the time he had
            remaining left 1527 days remaining on his sentence.


(C.R. at 91a.) The Board explained that this 1,527-day period commenced when
Petitioner became available to serve his back time on November 4, 2013, when he
was sentenced on the Lackawanna County charges, and that his new maximum
sentence date was January 9, 2018. This appeal followed.


                                         II.
            In the petition for review, Petitioner asserted that the Board erred in: (1)
recommitting Petitioner as a CPV based upon charges which were ultimately
withdrawn in 2010; (2) failing to credit Petitioner’s sentence for the time he was
incarcerated at a state correctional institution from August 29, 2008, to March 19,
2010; and (3) failing to credit Petitioner’s sentence for the 90-day period he was




                                          5
confined at the Keystone Community Corrections Center commencing in September
2011.


                 Subsequently, counsel filed a withdrawal application claiming that after
reviewing the certified record, his notes from his interview with Petitioner, and the
documents Petitioner supplied to him, he has determined that the instant appeal is
without merit. Specifically, in his no-merit letter3 dated June 2, 2015, Counsel
advised the Court that with regard to the principal argument that Petitioner could not
be recommitted as a CPV based on charges that were subsequently withdrawn,
“Further investigation has revealed[,] however, that this particular charge was not the
underlying offense for the conviction underlying the instant parole…” (Turner Letter
from Counsel (June 2, 2015) at 2.)


                 With respect to the Board’s failure to credit Petitioner’s original
sentence with the time served from August 29, 2008, until March 19, 2010, Counsel
explained:

                 [Petitioner] was paroled from his original (DF9780)
                 sentence to his detainer sentence (HS5330) on August 29,
                 2008 and not paroled from that sentence until August 24,
                 2009. Under these circumstances he was on constructive
                 parole on the DF # between 8/29/2008 and 8/24/2009 and
                 on parole on both numbers from 8/24/2009 until he was
                 declared delinquent effective March 19, 2010 and
                 recommitted as a technical parole violator.



        3
            See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).




                                                 6
                     When the Board recommits a convicted parole
              violator it has the discretion not to credit his original
              sentence with the time he was on constructive parole
              serving a detainer sentence. Merritt v. Pennsylvania [Board
              of Probation and] Parole, … 574 A.2d 597 ([Pa.] 1990);
              Hines v. Pennsylvania [Board of Probation and] Parole, …
              420 A.2d 381 (Pa. 1980). Further the non-delinquent time
              at liberty on parole which was not forfeited in his
              September 20, 2010 technical parole violation
              recommitment (8/24/2009 through 3/10/2010) is subject to
              forfeiture in a subsequent recommitment as a convicted
              parole violator. Richards v. Pennsylvania [Board of
              Probation and] Parole, 20 A.3d 596 (Pa. [Cmwlth.) (en
              banc), appeal denied, 29 A.3d 374 (Pa. 2011).]


(Id. at 2.)


              Finally, with regard to the period Petitioner was confined at the
Keystone Community Corrections Center, Counsel advised that because there is no
record regarding the length or conditions of Petitioner’s confinement there, and
because it is his burden to establish the same, “I do not believe there is a sufficient
record to survive a Board challenge to strike the issue.” (Id. at 23.)


              Counsel also averred that he notified Petitioner of his request to
withdraw, provided Petitioner a copy of his no-merit letter, transmitted a copy of the
certified record to Petitioner, and advised Petitioner of his right to retain new counsel
or raise any points he deems worthy of consideration before the Court pro se.




                                           7
                                                 III.
                                                  A.
               Our review4 begins with an examination of whether Counsel complied
with the technical requirements binding court-appointed counsel5 in withdrawal
proceedings. These requirements differ depending on whether a petitioner’s right to
counsel is constitutional in nature. As we explained in Hughes v. Pennsylvania
Board of Probation and Parole, a constitutional right to counsel arises in parole cases
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
               inappropriate, and that the reasons are complex or otherwise
               difficult to develop or present.


977 A.2d 19, 2526 (Pa. Cmwlth. 2009) (en banc) (internal citation omitted).
Appeals alleging that the Board did not properly calculate a petitioner’s maximum
date do not meet this standard and, therefore, are subject to the test enumerated in
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Hughes, 977 A.2d at 26.


       4
          Our scope of review is limited to determining whether the Board’s adjudication is
supported by substantial evidence, whether an error of law has been committed, or whether
constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704; Moroz v. Pennsylvania Board of Probation & Parole, 660 A.2d 131, 132 (Pa. Cmwlth.
1995).

       5
        Petitioner’s right to counsel in this case is a statutory right pursuant to Section 6(a) of the
Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. §9960.6(a).




                                                  8
              Pursuant to this standard:


              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 lists 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) (internal quotation marks
and citations omitted) (original alternations omitted). Additionally, counsel must
provide to the petitioner a copy of the “no-merit” letter, a copy of the petition to
withdraw, and a statement advising the petitioner of his right to proceed pro se or via
new counsel. Id. at 960. Where these technical prerequisites are satisfied, the Court
will conduct its own review of the merits of the case, and if we find that the claims
lack merit, we will allow counsel to withdraw. Id. Conversely, if we find that the
claims have merit, we will deny counsel’s request and grant relief or instruct counsel
to file an appellate brief. Id.


              Here, Counsel has complied with the technical requirements of the no-
merit letter. First, Counsel’s application to withdraw asserts that he has notified
Petitioner of his request to withdraw, provided him a copy of the no-merit letter he
filed, transmitted a copy of the certified record to Petitioner, and advised Petitioner of
his right to proceed pro se or through new counsel.            Additionally, as per the
withdrawal application’s certificate of service, a copy of the same was served upon
Petitioner.




                                            9
             Moreover, Counsel’s no-merit letter explains that his conclusion is based
upon review of the certified record, the documents which Petitioner supplied him, and
his notes from his interview with Petitioner. As detailed above, the letter also goes
on to discuss each of the three issues Petitioner intended to raise before this Court and
analyzes the merits of each argument, applying the relevant statutory authority and
case law. Because, at least on its face, the letter sets forth substantial reasons for
concluding that Petitioner’s arguments are meritless, Counsel complied with the
Turner standard, and we will conduct an independent review to determine whether
the appeal is indeed meritless. See id. at 962.


                                           B.
                                           1.
             Regarding Petitioner’s claim that the Board erred in recommitting
Petitioner as a CPV with respect to charges that were ultimately dismissed in 2011,
Petitioner was never recommitted on those charges.           Rather, as Counsel now
acknowledges, Petitioner was recommitted as a CPV based upon criminal charges
filed against him by the York City Police Department and the Scranton Police
Department, but not with regard to the dismissed charges which were instituted by the
Pennsylvania State Police. Indeed, the DOC’s “Moves Report” indicates that there
was “No Recommit Action” with regard to the charges dismissed in September 2011.
(C.R. at 58a.) Therefore, we agree with Counsel that this claim is without merit.




                                           10
                                                 2.
               With respect to Petitioner’s claim that he did not receive proper credit
for the time he was incarcerated between August 29, 2008, and March 19, 2010, the
DOC’s “Moves Report” demonstrates that Petitioner was paroled from his original
sentence on August 29, 2008, when he began serving time for his detainer sentence.6
He was further paroled from his detainer sentence on November 24, 2009. Therefore,
from August 29, 2008, to November 24, 2009, Petitioner was on constructive parole
from his original sentence, and following his release, he was on actual parole with
regard to both sentences until he was declared delinquent effective March 19, 2010,
and recommitted as a technical parole violator. See Merritt v. Pennsylvania Board of
Probation and Parole, 574 A.2d 597, 598 n.1 (Pa. 1990) (“A prisoner on constructive
parole is not released from prison; although paroled on his original sentence, he
immediately begins serving his new sentence.” (internal quotation marks and citation
omitted)).


               Pursuant to the Prison and Parole Code:

               (a) Convicted violators.--


      6
          A “detainer sentence” is:

               a sentence, separate and distinct from that sentence the parolee is
               presently serving, which is noted on the parolee’s institutional records
               to ensure that, after the parolee has completed his present term, he
               will be available to the authority which imposed the separate sentence
               for service of that separate sentence rather than being released from
               confinement.

Yates v. Pennsylvania Board of Probation and Parole, 48 A.3d 496, 499 (Pa. Cmwlth. 2012)
(internal citation omitted).



                                                 11
                   (1) A parolee under the jurisdiction of the board
            released from a correctional facility who, during the period
            of parole or while delinquent on parole, commits a crime
            punishable by imprisonment, for which the parolee is
            convicted or found guilty by a judge or jury or to which the
            parolee pleads guilty or nolo contendere at any time
            thereafter in a court of record, may at the discretion of the
            board be recommitted as a parole violator.

                   (2) 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 shall be given no credit for
            the time at liberty on parole.

                                         ***

            (c) Technical violators.--

                   (1) A parolee under the jurisdiction of the board who
            violates the terms and conditions of his parole, other than
            by the commission of a new crime of which the parolee is
            convicted or found guilty by a judge or jury or to which the
            parolee pleads guilty or nolo contendere in a court of
            record, may be detained pending a hearing before the board
            or waiver of the hearing or recommitted after a hearing
            before the board or a waiver of the hearing….

                  (2) If the parolee is recommitted under this
            subsection, the parolee shall be given credit for the time
            served on parole in good standing but with no credit for
            delinquent time and may be reentered to serve the
            remainder of the original sentence or sentences.


61 Pa. C.S. §6138 (emphasis added).


            As we described in Richards v. Pennsylvania Board of Probation and
Parole, pursuant to Section 6138 of the Prison and Parole Code, 61 Pa. C.S. §6138,



                                         12
technical parole violators are entitled to credit for time served while on parole in good
standing and may be recommitted only for the remainder of their original sentences
while CPVs are not entitled to credit for street time. 20 A.3d 596, 59899 (Pa.
Cmwlth.) (en banc), appeal denied, 29 A.3d 374 (Pa. 2011). Further, we have made
clear that:

              time spent in good standing prior to recommitment for
              technical violations is not shielded from forfeiture where the
              parolee subsequently commits a new crime and is
              recommitted as a convicted parole violator. Thus, upon
              recommitment as a convicted parole violator, in addition to
              losing all time spent at liberty during the current parole, a
              parolee will also forfeit all credit received for time spent in
              good standing while on parole prior to his previous
              recommitment as a technical parole violator.


Id. at 599 (quoting Armbruster v. Pennsylvania Board of Probation and Parole, 919
A.2d 348, 351 (Pa. Cmwlth. 2007)).


              Initially, Petitioner should have been credited for the period from August
29, 2008, through March 19, 2010, with regard to his original sentence, as his parole
was revoked only for technical violations. See 61 Pa. C.S. §6138(c)(2). His July 24,
2011 re-arrest by the Pennsylvania State Police following his February 2011 parole
does not alter this fact as those charges were ultimately dismissed.            However,
Petitioner’s August 29, 2012 arrest by the Scranton Police Department for the
offenses of manufacture, delivery or possession with intent to manufacture or deliver
heroin and promoting prostitution, with regard to which he pled guilty and was
subsequently recommitted, do serve as a basis for causing Petitioner to forfeit his
time spent in good standing from August 29, 2008, through March 19, 2010. Because


                                            13
Petitioner was subsequently recommitted as a CPV, he forfeits credit for the time he
spent in good standing while on parole prior to his March 2010 recommitment as a
technical parole violator. Richards, 20 A.3d at 599. As such, we agree that this
contention is without merit.


                                           3.
             Finally, with respect to the argument that the Board erred in failing to
credit Petitioner for the period he was confined at the Keystone Community
Corrections Center commencing in September 2011, we find this issue waived.


             As we make clear in our recent case of Medina v. Pennsylvania Board of
Probation and Parole, “parolees are not entitled to credit for periods in which they
reside in community corrections centers (CCCs), CCFs, or inpatient treatment
programs where the Board determines the parolees did not meet their burden of
proving the restrictions on their liberty were the equivalent of incarceration.” ___
A.3d ___, ___ (Pa. Cmwlth., No. 116 C.D. 2014, filed July 16, 2015) (en banc), slip
op. at 7, 2015 WL 4291193 at *4. A legal conclusion that a parolee was not “at
liberty on parole” because he was confined at a community correctional center or the
like, without factual support in the record, must fail. Cox v. Pennsylvania Board of
Probation and Parole, 493 A.2d 680, 683 (Pa. 1985). Indeed, “[a]ll forms of parole
involve some restraint on the parolee’s liberty.” Id.


             The most critical factors in making such a determination are whether the
resident is locked in and whether he may leave without being physically restrained.
Medina, ___ A.3d at ___, slip op. at 10, 2015 WL 4291193 at *5. The mere fact that



                                          14
a parolee resided at a community corrections center, by itself, is insufficient to prove
that he is entitled to credit for time. See id. at ___ A.3d at ___, slip op. at 7, 2015 WL
421193 at *6-7. Rather, this is a factual inquiry that must be determined based upon
the record, and it is a petitioner’s burden to demonstrate “the specific characteristics
of [a correctional] program that constituted restrictions on his liberty sufficient to
warrant credit on his recomputed backtime.” Cox, 493 A.2d at 683.


             In the instant case, Counsel emphasizes that there exists no record to
establish the length or conditions of confinement and argues that Petitioner will be
unable to satisfy his burden in this regard. However, we need not address the merits
of this issue because Petitioner failed to assert it in his administrative appeal and
waived it. See Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d 28,
34 (Pa. Cmwlth. 2006) (“Failure to raise an issue before the Board results in a waiver
and precludes this Court’s review.”). Indeed, had the issue been asserted before the
Board, it would have been required to hold a “Cox hearing,” and evidence regarding
the conditions of Petitioner’s confinement would have been established in the record.
See Medina, ___ A.3d at _, slip op. at 17, 2015 WL 4291193 at *78; Reavis, 909
A.2d at 36. Because Petitioner asserted only that he was not credited for “all of the
time to which he was entitled,” he failed to set forth a claim for credit in his request
for administrative relief since he “failed to mention the facility or the period in which
he alleges confinement.” Reavis, 909 A.2d at 36.




                                           15
            Accordingly, having found Petitioner’s appeal meritless, we affirm the
Board’s order and grant Counsel leave to withdraw.




                                             DAN PELLEGRINI, President Judge




                                        16
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Horace Harriott, Jr,                :
                    Petitioner      :
                                    :
            v.                      :
                                    :
Pennsylvania Board of Probation and :
Parole,                             :
                 Respondent         : No. 48 C.D. 2015




                                   ORDER


             AND NOW, this 10th day of September, 2015, the order of the
Pennsylvania Board of Probation and Parole bearing a mailing date of January 5,
2015, is affirmed, and David Crowley, Esq.’s application to withdraw appearance is
granted.




                                           DAN PELLEGRINI, President Judge
