          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlos Smith,                               :
                           Petitioner       :
                                            :
             v.                             :   No. 992 C.D. 2015
                                            :   Submitted: May 12, 2017
The Pennsylvania Department of              :
Corrections and The Pennsylvania            :
Board of Probation and Parole,              :
                        Respondents         :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                            FILED: August 8, 2017

             Carlos Smith (Smith), an inmate housed in the Dauphin County
Prison,1 petitions for review of an order of the Pennsylvania Board of Probation
and Parole (Board) that affirmed the dismissal of his request for administrative
relief. Smith contends the Board and the Pennsylvania Department of Corrections
(DOC) erred and violated his constitutional rights by recalculating the maximum
date of his original sentence and by stripping away 390 days of credit for time
Smith spent at liberty on parole. Also before us is the petition of Richard B.
Henry, Esquire (Counsel) to withdraw as appointed counsel on the ground that
Smith’s petition for review is frivolous. In light of our Supreme Court’s recent
decision in Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466


      1
          As indicated by a change of address filed by Smith in April 2017, Smith recently
relocated from a state correctional institution to the Dauphin County Prison.
(Pa. 2017), we deny Counsel’s petition to withdraw as appointed counsel, vacate
the Board’s order and remand for further proceedings.


                                 I. Background
            When the Board initially paroled Smith on September 28, 2011, his
original sentence had a maximum date of May 10, 2014. This indicated a total of
955 days remaining on Smith’s original sentence at that time. On October 21,
2012, law enforcement authorities detained Smith on new criminal charges
docketed in the Court of Common Pleas of Dauphin County (trial court). Smith
failed to post bail on the new charges. On October 22, 2012, the Board lodged a
detainer against Smith. On May 10, 2014, the maximum date of Smith’s original
sentence, the Board lifted its detainer. However, Smith remained incarcerated on
the new criminal charges.


            On September 12, 2014, Smith pled guilty to fleeing or attempting to
elude police, a third degree felony. The trial court sentenced him to one to two
years in a state correctional institution (Dauphin 5781). The same day, the trial
court also revoked Smith’s probation on a separate theft by unlawful taking charge
(Dauphin 52) and re-sentenced him to one to two years in prison, to run
consecutively to the Dauphin 5781 sentence. The trial court also credited 275 days
of time served, running from July 22, 2013 through April 22, 2014, to the Dauphin
52 sentence. See Certified Record (C.R.) at 64.


            In December 2014, the Board voted to recommit Smith as a convicted
parole violator. The Board did not give Smith credit for time served from October



                                        2
22, 2012 (Board detainer lodged) until May 10, 2014 (maximum date of original
sentence), because he remained confined under both the Board detainer and the
new charges, Dauphin 5781, during that period. The Board also denied Smith
credit for the period from September 12, 2014 (conviction on new charges) through
December 5, 2014 (recommitment as convicted parole violator).            The Board
reasoned this time served should apply to Smith’s new criminal charges.


             Ultimately, the Board determined Smith owed 955 days on his
original sentence running from the date of his parole on September 28, 2011
through his original maximum date of May 10, 2014. Because Smith did not
become available to resume serving his original sentence until December 5, 2014,
the Board added 955 days to that date. Therefore, the Board recalculated the
maximum date of Smith’s original sentence as July 17, 2017.


             Thereafter, Smith filed a request for administrative remedy, which the
Board treated as a petition for administrative review.        See C.R. at 104-13.
Basically, Smith challenged the validity of the Board’s recalculation of his
maximum date and the denial of credit for time he spent at liberty on parole. On
May 15, 2015, the Board issued a decision denying Smith’s request for
administrative relief. C.R. at 114-15.


             In response, Smith, while incarcerated at the State Correctional
Institution at Waymart (SCI-Waymart), filed a petition for review of the Board’s
denial of his request for administrative relief. Smith styled his petition a “writ of
mandamus/appeal,” which this Court treated as a petition for review in its appellate



                                         3
jurisdiction. The Court also appointed the Public Defender of Wayne County to
represent Smith on appeal. See Carlos Smith v. The Pennsylvania Department of
Corrections and The Pennsylvania Board of Probation and Parole, (Pa. Cmwlth.,
No. 992 C.D. 2015, order filed July 13, 2015).


               In his petition, Smith raises several issues, including a number of
constitutional challenges to the Board’s recalculation of the maximum date of his
original sentence. In September 2015, Counsel filed an Anders2 brief asserting the
issues in Smith’s petition for review were frivolous and lacked merit. Thereafter,
Smith filed an uncounseled brief in support of his petition for review. Smith’s
brief sets forth 18 numbered issues raising the same legal and constitutional
challenges included in his petition for review.               DOC and the Board, jointly
represented, filed a brief in response to Smith’s brief. In addition, DOC requests
that Smith’s claims against it be dismissed because it is not a proper party to
Smith’s appeal of the Board’s decision.


               In July 2016, this Court filed a memorandum opinion and order that
denied Counsel’s request to withdraw as Smith’s counsel, but also permitted him

       2
         In Anders v. California, 386 U.S. 738 (1967), the U.S. Supreme Court held that in order
for a criminal defendant’s counsel to withdraw from representing his client in an appeal, the
counsel must assert the case is completely frivolous, as compared to presenting an absence of
merit. An appeal is completely frivolous when there are no factual or legal justifications
supporting it. Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). However,
in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), our Supreme Court held that in matters
that are collateral to an underlying criminal proceeding, such as parole matters, a counsel
seeking to withdraw from 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.



                                                4
an opportunity to submit an amended request for leave to withdraw. See Carlos
Smith v. The Pennsylvania Department of Corrections and The Pennsylvania
Board of Probation and Parole (Smith I) (Pa. Cmwlth., No. 992 C.D. 2015, filed
July 11, 2016) (unreported), slip op. at 1-2.


               In Smith I, we noted that Smith did not challenge his new criminal
conviction precipitating his recommitment as a convicted parole violator. As such,
he had only a statutory right to counsel under Section 6(a)(10) of the Public
Defender Act.3 Therefore, Counsel, pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), needed only to file a no-merit letter.


               To satisfy the procedural requirements of a no-merit letter, counsel
must (1) notify the parolee of his request to the court to withdraw; (2) provide the
parolee with a copy of his 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. Smith I (citing Reavis v. Pa.
Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006)). In order to withdraw,
this Court also requires an attorney to include the following descriptive
information in a no-merit letter: (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 his conclusion that the issues are meritless. Smith I (citing Zerby v.
Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009)).




      3
          Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. §9960.6(a)(10).



                                               5
             Counsel’s letter included a brief summary of Smith’s parole and his
history of convictions following the grant of parole. Smith I. However, we noted
that Smith asserted in his petition for review that the Board’s controlling statutory
and regulatory provisions, as applied, violated his constitutional rights and
improperly altered the sentences imposed upon him. Id.


             Although Counsel asserted the governing statutory provisions
supported the Board’s decision, Counsel did not address the constitutional issues
Smith raised. Id. Even assuming Smith’s constitutional claims lacked any merit,
we recognized that in order to comply with Zerby, Counsel must explain to Smith
why his arguments fail. See Smith I, slip op. at 3-4. Accordingly, we gave
Counsel 30 days to file an amended no-merit letter that addresses and analyzes all
of the issues Smith raised, “including the constitutional issues.” Smith I, slip op. at
4 (emphasis added).


             In August 2016, recognizing that Counsel was not served with this
Court’s July 11, 2016 opinion and order, we directed Counsel to submit either an
amended no-merit letter or a brief on the merits of Smith’s petition for review
within 30 days of the order. See Carlos Smith v. The Pennsylvania Department of
Corrections and The Pennsylvania Board of Probation and Parole) (Pa. Cmwlth.,
No. 992 C.D. 2015, order filed August 17, 2016). In particular, we stated (with
emphasis added):

             If Counsel submits an amended no-merit letter, the Court
             will again address that request along with the merits of
             the Petition for Review. If Counsel submits a brief on
             the merits, Petitioner’s pro se brief shall be deemed


                                          6
              stricken and Respondents may submit a revised brief, at
              their discretion, but must do so within 30 days of the date
              Counsel files a brief on the merits.

Id.    In September 2017, Counsel submitted an amended no-merit letter and
renewed his petition to withdraw as Smith’s counsel.


                                        II. Discussion
                               A. Compliance with Smith I
              In Smith I, this Court clearly informed Counsel that he needed to
address the constitutional issues Smith raised. Unfortunately, Counsel’s amended
no-merit letter again fails to even mention the constitutional issues Smith raised in
his petition for review and brief. See Counsel’s Am. No-Merit Letter, 9/16/16, at
4-7.


              In short, neither Counsel’s amended no-merit letter nor his Anders
Brief attempts to address and resolve the numerous constitutional challenges Smith
raises to the Board’s actions and the applicable statutory provisions. As discussed
above, Smith is entitled to a substantive explanation as to why his claims will fail.
Zerby.


                           B. Constitutional Claims; Pittman
              Nonetheless, our review of Smith’s petition for review and brief
indicates that most of his arguments raise issues previously addressed and rejected
on numerous occasions by Pennsylvania courts.4 Regardless, we would ordinarily

       4
         The vast majority of constitutional issues raised by Smith have been rejected. See Gaito
v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980); Bellamy v. Pa. Bd. of Prob. & Parole (Pa.
(Footnote continued on next page…)

                                               7
require Counsel to properly examine all issues raised by Smith and explain to him
why they lacked merit. Seilhammer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40 (Pa.
Cmwlth. 2010). However, given the circumstances here, where more than two
years have passed since the Board’s May 15, 2015 decision, the maximum date of
Smith’s original sentence expired on July 17, 2017, and it appears that Smith is
entitled to a remand under the Supreme Court’s recent decision in Pittman, we will
not delay the remand by requiring Counsel to address a series of constitutional
claims that we note were previously rejected by the courts.


               Raising an issue of merit, Smith challenges the constitutionality of 61
Pa. C.S. §6138(a)(2.1), which grants the Board discretion to award a recommitted
convicted parole violator credit for time spent at liberty on parole under certain
circumstances. In particular, Smith stated the following issue:

               12. Is the discretion granted to the [Board] by the
               Pennsylvania Legislature[,] [t]o withdraw credit for time
               spent at liberty on parole from convicted parole violators,
               a violation of the Equal Protection Doctrine. Being that
               there is no fundamental difference between one convicted
               parole violator from another convicted parole violator,
               making the use of said discretion patently arbitrary and



(continued…)

Cmwlth., No. 439 C.D. 2014, filed May 5, 2015) 2015 WL 5413883 (unreported) (citing Young
v. Pa. Bd. of Prob. & Parole, 409 A.2d 843 (Pa. 1979)) (Board’s recalculation of parolee’s
maximum expiration date under 61 Pa. C.S. §6138(a)(2), which denies credit for time spent at
liberty on parole, represents a reasonable exercise of the penological responsibility and 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).




                                                8
             lacking rational justification[,] [r]endering 61 Pa. C.S.
             [§]6138(2.1) unconstitutional.

Smith’s Pet. for Review at 4, 33-35 (emphasis added).


             Despite his specious claim that there are no differences between
convicted parole violators, Smith does challenge the arbitrary nature of the Board’s
discretion to award credit for time spent at liberty on parole under 61 Pa. C.S.
§6138(a)(2.1).    In Pittman our Supreme Court recently held that Section
6138(a)(2.1) requires that the Board articulate a basis for its decision to deny a
convicted parole violator credit for time spent at liberty on parole. To that end, the
Pittman Court stated:

             Initially, we recognize that the Board has the broadest of
             discretion over many decisions regarding parolees and
             that the Board’s description of the statute is accurate in
             so far as there is no explicit requirement that the Board
             must provide a contemporaneous statement explaining its
             decision in Subsection 6138(a)(2.1). However, Article
             V, Section 9 of the Pennsylvania Constitution grants all
             persons the right to appeal from an administrative agency
             to a court of record. … This is consistent with inherent
             notions of due process. To the extent [the a]ppellant has
             a right to appeal, an appellate court hearing the matter
             must have method to assess the Board’s exercise of
             discretion. Accordingly, we hold that the Board must
             articulate the basis for its decision to grant or deny a
             [convicted parole violator] credit for time spent at liberty
             on parole.

Pittman, 159 A.3d at 474 (emphasis added).


             Here, as in Pittman, the Board, in denying Smith credit for time spent
at liberty on parole, checked the “No” box. C.R. at 92. Typed above the “No” box


                                          9
are the words “Aggravated Range.” Id. However, without any further explanation,
it is unclear what the term “aggravated range” means or whether it even refers to
the Board’s decision not to award credit.


             We also note that the Board, as a reason for its decision to recommit
Smith, indicated that it considered Smith “a threat to the safety of the community.”
C.R. at 93. Nonetheless, in light of Pittman, we believe Smith is entitled to a
specific and comprehensible explanation as to why the Board denied him credit for
the 390 days he spent at liberty on parole. Therefore, we believe a remand is
required in order for the Board to adequately explain to Smith its reason for
denying him credit for time spent at liberty on parole. Pittman.


             For the above reasons, we deny Counsel’s motion to withdraw as
Smith’s appointed counsel. Further, in accord with Pittman, we vacate the Board’s
final order and remand to the Board with instructions to provide Smith a written
statement reasonably articulating its basis for denying Smith credit under 61 Pa.
C.S. §6138(a)(2.1).


                            C. Board’s Recalculation
             Otherwise, we discern no error in the Board’s decision. When a
parolee is recommitted as a convicted parole violator, the maximum date of his
sentence may be extended to include the period of time he spent at liberty on
parole. Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596 (Pa. Cmwlth. 2011).
The Board’s authority to extend the maximum date of a parolee’s sentence does




                                        10
not usurp the court’s sentencing function. Gaito v. Pa. Bd. of Prob. & Parole, 412
A.2d 568 (Pa. 1980).
             When the Board paroled Smith on September 28, 2011, the maximum
date of his original sentence was May 10, 2014. As a result, Smith owed 955 days
backtime. See C.R. at 100. On October 22, 2012, following Smith’s arrest on new
criminal charges, the Board lodged a detainer against Smith. On May 10, 2014,
the maximum date of Smith’s original sentence, the Board lifted its detainer.
During that period of time, Smith failed to make bail and thus remained confined
on both the new charges and the Board’s detainer. As such, Smith was not entitled
to credit toward his original sentence for that period. Armbruster v. Pa. Bd. of
Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007).


             In fact, Smith was never held solely on a Board warrant until
December 5, 2014, when the Board voted to recommit him as a convicted parole
violator. Therefore, the Board added the 955 days remaining on Smith’s original
sentence to the December 5, 2014 date and properly recalculated Smith’s
maximum date as July 17, 2017. Id.


             At first glance, it would appear that Smith spent more time in pre-
sentence confinement (October 12, 2012-December 5, 2014) than the new one to
two year sentence for fleeing or attempting to elude police, Dauphin 5781, the
conviction which led to his recommitment. This would appear to implicate the
Supreme Court’s decision in Martin v. Pennsylvania Board of Probation and
Parole, 840 A.2d 299 (Pa. 2003) (where parolee is held on both a Board warrant
and new criminal charges and it is not possible to award all of the credit on the new



                                         11
sentence because the presentence incarceration exceeds the new sentence, the
credit must be applied to the parolee’s original sentence).
                A closer examination of the record, however, reveals Smith was also
re-sentenced on the same day to a term of one to two years on a separate theft by
unlawful taking charge, Dauphin 52, to run consecutively to the one to two year
sentence on the Dauphin 5781 fleeing or attempting to elude police charge. See
C.R. at 59, 64. The trial court credited Smith with time served on the Dauphin 52
sentence from July 23, 2013 through April 22, 2014, a period of approximately 275
days. Id. Thus, Smith’s new one to two year Dauphin 5781 sentence exceeded his
remaining pre-sentence time served on that charge.            As such, Martin is
inapplicable.     Therefore, we see no error or abuse of discretion in Board’s
recalculation of Smith’s original sentence maximum date.


                                       D. DOC
                In addition, we agree with DOC’s contention that it is not a proper
party to Smith’s appeal of a Board recommitment decision. DOC is responsible
for calculating the minimum and maximum terms of prisoners committed to their
jurisdiction. Gillespie v. Dep’t of Corr., 527 A.2d 1061 (Pa. Cmwlth. 1987).
DOC, however, is not involved in the Board’s recommitment decisions, including
the recalculation of a parolee’s original sentence maximum date. Therefore, we
dismiss DOC from this appeal.


                                   III. Conclusion
                For the above reasons, we deny Counsel’s petition to withdraw as
appointed counsel, vacate the Board’s order and remand this matter for further



                                          12
proceedings consistent with this opinion. In addition, we dismiss DOC from the
case as an improper party to Smith’s appeal of the Board’s order.




                                      ROBERT SIMPSON, Judge




                                        13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlos Smith,                            :
                          Petitioner     :
                                         :
             v.                          :      No. 992 C.D. 2015
                                         :
The Pennsylvania Department of           :
Corrections and The Pennsylvania         :
Board of Probation and Parole,           :
                        Respondents      :


                                       ORDER

             AND NOW, this 8th day of August, 2017, the order of the
Pennsylvania Board of Probation and Parole is VACATED and this case is
REMANDED for further proceedings consistent with the foregoing opinion. The
Petition to Withdraw as Appointed Counsel is DENIED.                Further, the
Pennsylvania Department of Corrections is DISMISSED from the case as an
improper party. Jurisdiction is relinquished.




                                        ROBERT SIMPSON, Judge
