           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aaron Smith,                            :
                         Petitioner     :
                                        :
            v.                          :   No. 1703 C.D. 2015
                                        :   Submitted: June 3, 2016
Pennsylvania Board of Probation         :
and Parole,                             :
                        Respondent      :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: September 15, 2016



            Petitioner Aaron Smith (Smith) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board). The Board denied Smith’s
request for administrative relief (administrative appeal) of the Board’s
June 18, 2015 order, which recommitted Smith to serve 18 months backtime for
new criminal convictions. Smith’s counsel, James L. Best, Esquire (Counsel),
filed a motion for leave to withdraw as counsel. Counsel asserts that the issues
Smith raised in his petition for review are frivolous and lacking in any merit. We
deny counsel’s motion but provide Counsel with an opportunity to submit an
amended motion for leave to withdraw.
            Smith had been incarcerated at a State Correctional Institution when
he was released on parole on December 18, 2012. (Certified Record (C.R.) at 31).
On December 27, 2013, Smith was arrested and charged with Possession with
Intent to Deliver (a felony) and Intentional Possession of a Controlled Substance
by Person Not Registered (a misdemeanor). (C.R. 32-39). Smith was convicted of
those same charges on December 15, 2014, and was sentenced to a term of 1 year
and 6 months to 3 years on April 30, 2015. (C.R. 51-63). The Board conducted a
hearing on April 9, 2015, and determined that Smith was a convicted parole
violator. (C.R. 68-75). By decision mailed June 18, 2015, the Board forfeited
Smith’s street time and recommitted him as a convicted parole violator to serve 18
months backtime. (C.R. 95). By that same order, the Board recalculated Smith’s
maximum sentence date from December 18, 2015, to February 17, 2017, reflecting
the 1,095 days remaining on Smith’s sentence when he was paroled minus the 436
days of credit for the period he was incarcerated from February 18, 2014, to
April 30, 2015, while awaiting sentencing on his new charges. (C.R. 93).
             On July 20, 2015, the Board received Smith’s administrative appeal,
challenging the Board’s forfeiture of the period of time he was at liberty while on
parole, colloquially referred to as “street time”. (C.R. 97). In his administrative
appeal, Smith objected to the Board’s recalculation of his maximum sentence date.
(C.R. 97-100). Specifically, Smith asserted that the Board’s forfeiture of his street
time was unconstitutional because Section 6138(a)(2) of the Prisons and Parole
Code (Parole Code), 61 Pa. C.S. § 6138(a)(2), authorized the Board to perform a
judicial function and that the Board’s imposition of 18 months backtime was
excessive. The Board determined that, because Smith was a convicted parole
violator, the street time was correctly forfeited under Section 6138(a)(2) of the
Parole Code. (C.R. 101-102). By decision mailed July 29, 2015, the Board
rejected Smith’s administrative appeal, reasoning:


                                         2
                   [As] a convicted parole violator you automatically
            forfeited credit for all of the time that you spent on
            parole. See 61 [Pa. C.S.] § 6138(a)(2). You are not
            entitled to a back time served credit (i.e., time that you
            were held solely on the Board’s warrant prior to your
            recommitment order) because you were never
            incarcerated solely on the Board’s warrant. See Gaito v.
            Pa. Bd. of Prob. and Parole, 412 A.2d 568 (Pa. 1980).
            You received back time credit from February 18, 2014,
            (date bail posted/made unsecured) to April 30, 2015,
            (date of conviction) or 436 days. This is because the
            Board’s detainer was the sole source of your detention.
            Applying 436 days to 1,095 yields a total of 659 days
            owed (or 1 year, 9 months, 16 days). You became
            available to begin serving your back time on
            April 30, 2015, when you were convicted and released by
            Philadelphia County to Pennsylvania authorities.
            Adding 659 days to April 30, 2015, yields a new parole
            violation maximum date of February 17, 2017.
            Therefore, your parole violation maximum sentence date
            is correct.
                   To the extent you allege the Board lacks authority
            to extend the max date of your original sentence max
            date, you are incorrect. As a convicted parole violator
            you automatically forfeited credit for all of the time that
            you spent on parole. See 61 [Pa. C.S.] § 6138(a)(2). You
            are not entitled to a back time served credit (i.e. time that
            you were held solely on the Board’s warrant prior to your
            recommitment order) because you were never
            incarcerated solely on the Board’s warrant. See Gaito,
            412 A.2d 568. Furthermore, the Parole Act mandates
            that your parole time be added to your original maximum
            sentence date as a recommitted convicted parole violator.
            See Jackson v. Pa. Bd. of Prob. and Parole,
            781 A.2d 239 (Pa. Cmwlth. 2001).
(Board’s Response to Smith’s Petition for Administrative Review, 1-2.)
            Before we may consider the merit of Smith’s appeal, we must address
counsel’s motion for leave to withdraw from his representation of Smith. When no
constitutional right to counsel is involved in a probation and parole case, an

                                         3
attorney seeking to withdraw from representing a prisoner may file a no-merit
letter, as compared to an Anders brief.1 A constitutional right to counsel in a
probation and parole matter arises only when the prisoner’s case includes:
              [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.

Hughes v. Pa. Bd. of Prob. and Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth. 2009)
(quoting Gagnon v. Scarpelli, 411 U.S. 778 (1973)). Smith does not argue that he
did not commit the crimes for which he received new criminal convictions, nor
does Smith suggest any reasons constituting justification or mitigation for his new
criminal conviction. Thus, Smith only has a statutory right to counsel under
Section 6(a) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as
amended, 16 P.S. § 9960.6(a)(10).           Counsel filed a no-merit letter seeking to
withdraw his representation of Smith, and we consider his request to withdraw as



       1
          In Anders v. California, 386 U.S. 738 (1967), the United States 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 that the case is completely frivolous, as compared to presenting
an absence of merit. An appeal is completely or “wholly” frivolous when there are no factual or
legal justifications that support the appeal. Craig v. Pa. Bd. of Prob. and Parole, 502 A.2d 758,
761 (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 his 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
counsel based upon his evaluation of the merits of Smith’s appeal, as set forth in
his letter.

               In order to satisfy the procedural requirements associated with
no-merit letters, counsel must: (1) notify the parolee that he has submitted to the
Court a request to withdraw; (2) provide the parolee with a copy of counsel’s
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.2                   Reavis v. Pa. Bd. of Prob. and
Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006). In seeking to withdraw, this Court
has consistently required 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.                            Zerby v.
Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). Therefore, before considering
whether Smith’s appeal is without merit and proceeding to make an independent
review of the merits of the case, we must first evaluate counsel’s no-merit letter to
determine whether it complies with the requirements for withdrawal applications.
Counsel’s letter includes a summary of Smith’s parole and conviction history,
reflecting a thorough understanding of the certified record. It appears, however,
that Counsel did not address all of the issues Smith sought to raise in his appeal.
               Counsel does not address Petitioner’s assertion that he was so


       2
          Counsel served Smith with his petition for leave to withdraw and his no merit letter. In
a letter addressed to Smith, counsel advised him of his right to retain counsel or file a brief on his
own behalf. Thus, counsel has complied with these requirements.



                                                  5
confined during his time on parole that he was not truly at liberty. See Detar v. Pa.
Bd. of Prob. and Parole, 890 A.2d 27, 31 (Pa. Cmwlth. 2006).                           In his
administrative appeal, Smith states that he was subjected to searches by his parole
“agent” and was confined in his home while on probation. (C.R. 98). The Board
did not address this issue in its response to Smith’s administrative appeal, and
counsel did not address it in his no-merit letter. Smith, however, points to no
evidence in the record which would indicate that his time spent on parole was
“sufficiently custodial to be characterized as incarceration.” Id. Although this
argument may ultimately prove to be without merit, in order to satisfy the
requirements of Zerby, Counsel is required to address this issue.3
              Accordingly, we deny Counsel’s motion for leave to withdraw as
counsel.




                                    P. KEVIN BROBSON, Judge




       3
         We also note that after Counsel served Smith with notice that he was seeking leave to
withdraw as counsel, Smith filed a brief on the merits and the Board filed a brief in response.
Because we have concluded that Counsel did not satisfy the requirements for withdrawing as
counsel, we do not yet reach the merits of the matter.



                                              6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aaron Smith,                               :
                          Petitioner       :
                                           :
             v.                            :    No. 1703 C.D. 2015
                                           :
Pennsylvania Board of Probation            :
and Parole,                                :
                        Respondent         :


                                       ORDER


             AND NOW, this 15th day of September, 2016, the motion to
withdraw as counsel filed by James L. Best, Esquire, is DENIED. Counsel shall
submit either an amended no-merit letter or a brief on the merits of the petition for
review filed by Petitioner Aaron Smith within thirty days of the date of this order.
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 stricken and Respondent
may submit a revised brief, at its discretion, but must do so within thirty days of
the date Counsel files a brief on the merits.




                                 P. KEVIN BROBSON, Judge
