               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Faircloth,                         :
                     Petitioner            :
                                           :    No. 796 C.D. 2019
             v.                            :
                                           :    Submitted: November 22, 2019
Pennsylvania Board of                      :
Probation and Parole,                      :
                  Respondent               :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                           FILED: January 27, 2020


             Before the court is the petition for review of the May 29, 2019 order of
the Pennsylvania Board of Probation and Parole (Board), which denied the request for
administrative relief from the Board’s April 23, 2019 order recalculating the maximum
sentence date of Stephen Faircloth (Petitioner). Also before the court is the Application
for Leave to Withdraw filed by court-appointed counsel, Nicholas E. Newfield, Esquire
(Counsel), on the basis that there are no grounds for appeal and the petition is frivolous.
We grant Counsel’s Application to Withdraw and affirm the Board’s order.
             The facts of this case are as follows. As a result of his guilty pleas to theft-
related offenses in 2014 and 2016, the courts of common pleas in Dauphin and York
counties sentenced Petitioner to one to five years’ imprisonment and nine months to
two years’ imprisonment, respectively. For the Dauphin County Sentence, Petitioner’s
original maximum sentence date was February 28, 2019, and, for the York County
Sentence, his original maximum sentence date was July 26, 2020. (Certified Record
(C.R.) at 1-3.)
             On July 28, 2017, the Board paroled Petitioner on the Dauphin County
Sentence to a state detainer to commence service on the York County Sentence. On
October 31, 2017, the Board paroled Petitioner on the York County Sentence, and he
was transferred from incarceration to the Madison House West. At the time he was
paroled to Madison House West, Petitioner had 1,094 days, or approximately 3 years,
remaining on his York County Sentence (original maximum sentence date of July 26,
2020, minus the July 28, 2017 parole date, equals 1,094 days). (C.R. at 4-11, 15-24;
Board’s decision at 1.)
             While Petitioner was at liberty on parole during his time at Madison House
West, he allegedly committed new criminal violations and violations of the conditions
of his parole. The Board lodged a detainer on September 6, 2018, and Petitioner was
arrested and incarcerated in the Cumberland County Prison on that same date. On
September 10, 2018, the prosecuting authorities filed new criminal charges against
Petitioner in Cumberland County. Petitioner did not post bail, and the Board awarded
him four days of backtime credit for the time he spent in custody solely on the Board’s
detainer, from September 6, 2018, to September 10, 2018. Including this deduction,
Petitioner owed 1,090 days on the York County Sentence, his original sentence. (C.R.
at 42, 62-73, 101; Board’s decision at 2.)
             On January 9, 2019, in connection with the new criminal charges,
Petitioner tendered a guilty plea in the Cumberland County Court of Common Pleas to
one count of retail theft. Thereafter, on February 12, 2019, a trial judge sentenced him
to 6 to 12 months’ imprisonment at the Cumberland County Prison. In so doing, the



                                             2
trial judge awarded Petitioner credit on this sentence from September 10, 2018, and
immediately paroled him to his state detainer. On February 12, 2019, Petitioner was
released to the Board’s custody. (C.R. at 99-103, 130-32.)
              On April 3, 2019, the Board filed a notice of hearing and charges based
upon Petitioner’s most recent guilty plea to retail theft. On that same date, Petitioner
executed a Waiver of Revocation Hearing and Counsel/Admission Form and admitted
the new criminal conviction. (C.R. at 108-123.) By decision mailed April 23, 2019,
the Board recommitted Petitioner as a Convicted Parole Violator (CPV) to serve six
months’ backtime and declined to award him credit for time spent at liberty on parole.
(C.R. at 134-37.) In so deciding, the Board offered the following reason(s): “New
conviction same/similar to the original offense,” (C.R. at 114), and “poor adjustment
under supervision.” (C.R. at 134.) The Board also extended Petitioner’s maximum
sentence date on the York County Sentence to February 6, 2022 (calculated as the date
Petitioner was released to the Board’s custody, February 12, 2019, with no credit for
time spent at liberty on parole, plus 1,090 days owed on the sentence). (C.R. at 136.)
              Subsequently, Petitioner filed an administrative appeal and supplemental
correspondence, asserting that the Board erred in recalculating his maximum sentence
date. In a decision dated May 29, 2019, the Board affirmed its April 23, 2019 decision.
(C.R. at 142-49.)
               Petitioner then filed a petition for review with this Court,1 and Counsel
filed an Application for Leave to Withdraw and a “no-merit” letter pursuant to




       1
         Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether necessary findings of fact are supported by
substantial evidence. McCloud v. Pennsylvania Board of Probation and Parole, 834 A.2d 1210, 1212
n.6 (Pa. Cmwlth. 2003).


                                                3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), contending that the appeal is
meritless.
             Where, as here, counsel concludes that a petitioner’s appeal is meritless,
counsel may be permitted to withdraw from representation if counsel: (1) notifies the
petitioner of the request to withdraw; (2) furnishes the petitioner with a copy of a no-
merit letter satisfying the requirements of Turner; and (3) advises the petitioner of his
right to retain new counsel or submit a brief on his own behalf. Miskovitch v.
Pennsylvania Board of Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013).
When counsel seeks to withdraw under Turner, our Supreme Court has held that
counsel may fulfill his/her responsibilities by providing a no-merit letter that details
the nature and extent of the counsel’s review, identifies each issue the petitioner wishes
to raise, and explains why counsel concludes those issues are meritless. 544 A.2d at
928. Once counsel has fully complied with the technical requirements for withdrawal,
the Court will independently review the merits of the petitioner's claims. Miskovitch,
77 A.3d at 70.
             Here, the record reflects that, in his Turner no-merit letter, Counsel
informed Petitioner of Counsel’s request to withdraw, provided Petitioner with a copy
of the Turner letter that details Counsel’s review of the issues and the reasons why
Counsel concluded those issues are meritless, and advised Petitioner of his right to
retain new counsel or raise any new points he might deem worthy of consideration.
(Application For Leave to Withdraw, 10/9/2019; Turner Letter, 9/5/2019). Because
Counsel has satisfied the procedural requirements to withdraw, the Court will
independently review the issues raised to determine whether the appeal is, in fact,
without merit. An appeal is without merit when it lacks any basis in law or fact.
Commonwealth v. Santiago, 978 A.2d 349, 356 (Pa. 2009).



                                            4
             First, Petitioner argues that the Board erred in failing to provide him with
credit on his original sentence, i.e., the Dauphin County Sentence, from July 28, 2017,
which was the date he was paroled on the Dauphin County Sentence to a state detainer
to commence service on the York County Sentence. In other words, Petitioner
contends that he is entitled to credit on his first sentence while he was “constructively
paroled” from that sentence and, while still incarcerated, began serving time on his
second sentence.
             We disagree. The legal term “constructive parole” describes the situation
that occurs where a petitioner is released on parole from one sentence, usually after
completing the minimum term, but is not released from confinement, and then
commences serving a second unrelated sentence. Hines v. Pennsylvania Board of
Probation and Parole, 420 A.2d 381, 383 (Pa. 1980); Spruill v. Pennsylvania Board of
Probation and Parole, 158 A.3d 727, 730 (Pa. Cmwlth. 2017). Under prevailing case
law, the petitioner is considered to be “at liberty” from that first sentence despite being
held in custody as a result of a separate and unrelated sentence. Spruill, 158 A.3d at
730.   Our Supreme Court has explained that although a petitioner “who is on
constructive parole is at liberty on parole on that particular sentence,” the petitioner “is
not entitled to credit against his original sentence for his time spent on constructive
parole.” Merritt v. Pennsylvania Board of Probation and Parole, 574 A.2d 597, 598
(Pa. 1990); see Cox v. Pennslyvania Board of Probation and Parole, 493 A.2d 680,
683 (Pa. 1985). Instead, time spent in custody serving the second sentence may only
be credited against that sentence.      Spruill, 158 A.3d at 731 (citations omitted).
             Applying these legal principles, we conclude that the Board did not err in
failing to provide Petitioner with credit on the original, Dauphin County Sentence for




                                             5
the days he spent in confinement while on constructive parole and serving the York
County Sentence. Petitioner’s argument to the contrary lacks merit.
             Next, Petitioner asserts that the Board erred in extending his maximum
sentence date and failing to provide him with any credit for days he spent at liberty on
parole because he was recommitted as a CPV.
             In 2012, our General Assembly amended the Prisons and Parole Code
(Parole Code) and added section 6138(a)(2.1), 61 Pa.C.S. §6138(a)(2.1), which vests
the Board with discretion to grant a CPV with credit for time spent at liberty on parole.
See Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 469 (Pa.
2017). This provision states, in relevant part: “The [B]oard may, in its discretion,
award credit to a parolee recommitted [as a CPV] for the time spent at liberty on
parole,” unless the parolee commits a crime enumerated in the statute. 61 Pa.C.S.
§6138(a)(2.1). In Pittman, our Supreme Court concluded that if the Board exercises
its discretion pursuant to section 6138(a)(2.1) and denies credit, it “must provide a
contemporaneous statement explaining its reason for denying a CPV credit for time
spent at liberty on parole.” Id. at 475. The Supreme Court observed that the Board’s
statement need not “be extensive and a single sentence explanation is likely sufficient
in most instances.” Id. at 475 n.12.
             In Smoak v. Talaber, 193 A.3d 1160 (Pa. Cmwlth. 2018), this Court
determined that the Board's five-word reason for denying credit for street time—
“unresolved drug and alcohol issues”—was “just barely sufficient” to satisfy Pittman’s
contemporaneous statement requirement. Id. at 1164-65. In other cases, we have
concluded that the following reasons provided by the Board were adequate and
complied with Pittman: “conviction involved possession of a weapon”; “prior history
of supervision failures” and “unresolved drug and alcohol issues”; “third firearm



                                           6
conviction”; and “extensive history of illegal drug involvement” and “new drug-related
conviction.” Marshall v. Pennsylvania Board of Probation and Parole, 200 A.3d 643,
650-51 (Pa. Cmwlth. 2018).
             Here, the Board decided not to award Petitioner credit as a CPV for time
spent at liberty on parole because Petitioner sustained a “New conviction same/similar
to the original offense,” i.e., retail theft, (C.R. at 114), and displayed “poor adjustment
under supervision.” (C.R. at 134.) Consistent with our case law, we conclude that the
Board articulated sufficient reasons for denying Petitioner credit.           Petitioner’s
argument is therefore meritless.
             Finally, in conducting our independent review, we note that the Board
properly awarded Petitioner four days of credit on his original sentence for time he
spent incarcerated in the Cumberland County Prison solely on the Board’s detainer,
from September 6, 2018, to September 10, 2018, until the prosecuting authorities filed
new criminal charges. See Martin v. Pennsylvania Board of Probation and Parole,
840 A.2d 299, 307 (Pa. 2003). After Petitioner did not post bail on new criminal
charges, the trial judge correctly credited Petitioner for the time he spent incarcerated
on the new criminal charges awaiting trial to the date he was sentenced to the
Cumberland County Prison. See Hall v. Pennsylvania Board of Probation and Parole,
733 A.2d 19, 21-22 (Pa. Cmwlth. 1999). Moreover, when the trial judge in the
Cumberland County case paroled Petitioner to his state detainer on February 12, 2019,
Petitioner became available to serve his original sentence on that date. See section
6138(a)(5)(iii) of the Parole Code, 61 Pa.C.S. §6138(a)(5)(iii). Because the Board did
not award Petitioner with credit for time spent at liberty on parole, and Petitioner owed
1,090 days on his original sentence as of the date of his availability, the Board did not
err in adding this amount to February 12, 2019, and correctly calculated Petitioner’s



                                            7
new maximum sentence date as February 6, 2022. See Armbruster v. Pennsylvania
Board of Probation and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). Therefore,
we conclude, based upon our independent review, that there are no legal issues that are
potentially meritorious.
             Having determined that the issues raised and implicated in this appeal lack
any basis in law and/or fact, we affirm the Board’s order and grant Counsel’s and the
Application for Leave to Withdraw.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Faircloth,                    :
                     Petitioner       :
                                      :    No. 796 C.D. 2019
            v.                        :
                                      :
Pennsylvania Board of                 :
Probation and Parole,                 :
                  Respondent          :


                                  ORDER


            AND NOW, this 27th day of January, 2020, the May 29, 2019 order of
the Pennsylvania Board of Probation and Parole is hereby affirmed, and the
Application for Leave to Withdraw filed by Nicholas E. Newfield, Esquire, is
granted.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
