        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Merritt,                          :
                          Petitioner     :
                                         :
             v.                          :   No. 474 C.D. 2018
                                         :   Submitted: November 2, 2018
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: January 7, 2019

             Joseph Merritt (Merritt), an inmate at a state correctional institution,
petitions for review of an order of the Pennsylvania Board of Probation and Parole
(Board) that affirmed the dismissal of his administrative appeal as premature. Also
before us is the petition of David Crowley, Esquire, Chief Public Defender of Centre
County (Counsel), to withdraw as counsel on the ground that the petition for review
is frivolous. For the reasons that follow, we grant Counsel’s petition to withdraw,
and we affirm the Board’s order.


                                   I. Background
             Merritt was released on parole on September 15, 2014. At that time his
maximum release date was March 14, 2018 (original sentence). On January 20,
2016, the Board designated Merritt delinquent and charged him with two technical
parole violations.
              On April 15, 2016, Merritt was arrested. On that date and various dates
thereafter, Merritt was charged with a number of new criminal offenses committed
from January to April 2016 in multiple counties in southeastern Pennsylvania and
New Jersey. He was unable to post bail. By decision in May 2016, in light of his
period of delinquency from January 20 to April 15, 2016, the Board recalculated
Merritt’s maximum parole date as June 8, 2018. The Board also ordered Merritt to
serve six months of backtime as a technical parole violator (TPV), subject to change
upon conviction of the pending criminal charges.


              In a series of plea bargains in Chester, Delaware, and Montgomery
Counties, Merritt pleaded guilty to a number of felony and misdemeanor offenses
(New Convictions).1 In September 2016, following the plea bargain in Chester
County, the Board amended its May 2016 decision. The Board recommitted Merritt
for 30 months as a convicted parole violator (CPV) in relation to the New
Convictions in Chester County. In January 2017, following the plea bargain in
Delaware County, the Board recommitted Merritt for 24 months as a CPV in relation
to the New Convictions in Delaware County, to run concurrently with the backtime
imposed under the September 2016 decision. In September 2017, following the plea
bargain in Montgomery County, the Board recommitted Merritt for six months as a
CPV in relation to the New Convictions in Montgomery County, to run concurrently
with the backtime previously imposed under the September 2016 and January 2017
decisions. Thus, because the backtime imposed under all three decisions was to run



       1
         During the same time period, Merritt was also charged with criminal offenses in
Philadelphia County, and he was charged with and convicted of offenses in Mercer County, New
Jersey. The Board took no action concerning those additional charges and convictions.


                                             2
concurrently, the total backtime to be served in relation to the New Convictions was
30 months.


              In February 2017, after receiving the Board’s January 2017 decision
related to the New Convictions in Delaware County, Merritt filed a request with the
Board for administrative relief, raising three issues. First, Merritt alleged the Board
erred by imposing 30 months of backtime, in that it applied the 6 months of backtime
as a TPV consecutively with the 24 months imposed in January 2017, although the
January 2017 decision directed the time would run concurrently. Second, Merritt
asserted the Board deviated from the presumptive range in assessing backtime. His
third argument, although not clear, appeared to contend the Board should have
credited his time served in custody without bail against the backtime assessed.


              More than a year later, in a March 2018 decision, the Board observed
that its January 2017 decision did not establish Merritt’s recalculated maximum
sentence date. The Board therefore dismissed Merritt’s request for administrative
relief as premature. Counsel, court-appointed to represent Merritt,2 filed a petition
for review on Merritt’s behalf in this Court concerning the Board’s March 2018
decision.


              In May 2018, the Board issued an order referencing its prior decisions
imposing backtime, declining to award credit for time Merritt spent at liberty on
parole, stating a new minimum parole date of March 18, 2019, and stating a new



       Merritt’s right to counsel arose under Section 6(a)(10) of the Public Defender Act, Act of
       2

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


                                               3
maximum parole violation date of November 26, 2019. Merritt did not seek this
Court’s review of the May 2018 Board order.


                Counsel filed a no-merit letter in this Court in which he analyzed the
legal issues raised in the petition for review and explained his reasons for concluding
that the appeal lacked any legal basis. Treating the letter as a petition for leave to
withdraw, this Court issued an order indicating the petition to withdraw would be
disposed of together with the merits of the petition for review. The order also
allowed Merritt 30 days from service of the order to obtain new counsel and have
that counsel file a brief in support of the petition for review, or alternatively, to file
a brief on his own behalf. The record indicates Counsel promptly served a certified
copy of the order on Merritt. No new counsel entered an appearance for Merritt.
Neither new counsel nor Merritt filed a brief in support of the petition for review.3


                                               II. Issues
                Although he raised only three issues in his request for administrative
relief to the Board, Merritt raises five issues in his petition for review to this Court.
He asserts the Board:

                       (a) Failed to credit [Merritt’s] original sentence with
                all the time to which he is entitled.
                       (b) Assessed a period of backtime above the
                presumptive guideline range without listing aggravating
                circumstances.
                       (c) Ran the assessed periods of backtime for his
                technical violations and new conviction in consecutive order
                despite an order running them concurrently.


      3
          The Board likewise filed no brief.


                                                   4
                     (d) Failed to send [Merritt] a copy of the Order to
               Recommit so that he could determine if the Board accurately
               recalculated his max date.
                     (e) Contravened [Merritt’s] due process rights by
               waiting 13 months to dismiss his pro se administrative appeal
               as premature while rendering other decisions in the case and
               thereby deluding [Merritt] into a false belief that his
               objections to the calculation of his maximum date were
               preserved.

Pet. for Review, ¶6.


               In his petition to withdraw, Counsel analyzed and rejected each of
Merritt’s allegations as without factual or legal merit.


                                     III. Discussion
                                 A. Request to Withdraw
               Before reviewing the merits of Merritt’s appeal,4 we must decide
whether Counsel should be permitted to withdraw. We hold that an indigent
parolee’s right to assistance of counsel does not entitle the parolee to representation
by appointed counsel to prosecute a frivolous appeal. Presley v. Pa. Bd. of Prob. &
Parole, 737 A.2d 858 (Pa. Cmwlth. 1999). Consequently, court-appointed counsel
may seek to withdraw if, after a thorough review of the record, counsel concludes
the appeal is wholly frivolous. Id. An appeal is wholly frivolous when it completely
lacks factual or legal reasons that might arguably support the appeal. Id.




       4
         Our review is limited to determining whether constitutional rights were violated, whether
the adjudication was in accordance with law, and whether necessary findings were supported by
substantial evidence. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).


                                                5
             Under our Supreme Court’s holding in Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), court-appointed counsel seeking to withdraw adequately
protects a petitioner’s rights where he presents a no-merit letter detailing the nature
and extent of his review, listing each issue the petitioner wishes to have raised, and
explaining why those issues are meritless. If this Court, after its own independent
review, agrees with counsel that the petition is meritless, counsel will be permitted
to withdraw. Id.; Adams v. Pa. Bd. of Prob. & Parole, 885 A.2d 1121 (Pa. Cmwlth.
2005).


                   1. Technical Requirements for Withdrawal
             First, Counsel must satisfy the technical requirements set forth in Craig
v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985).
Pursuant to Craig, Counsel must notify the parolee of his request to withdraw,
furnish the parolee a copy of a no-merit letter in compliance with Turner, and advise
the parolee of his right to retain new counsel or raise any points he may deem worthy
of consideration. See Adams.


             Here, Counsel provided Merritt with a copy of his no-merit letter. Upon
Counsel’s filing of his no-merit letter, this Court issued an order notifying Merritt of
his right to retain new counsel or file a brief on his own behalf. Counsel promptly
served Merritt with a copy of the order. Accordingly, Counsel complied with the
technical requirements set forth in Craig. Smith v. Pa. Bd. of Prob. & Parole (Pa.
Cmwlth., No. 724 C.D. 2016, filed March 3, 2017), 2017 Pa. Commw. Unpub.




                                           6
LEXIS 143 (unreported)5 (by serving copy of court’s order, counsel notified
petitioner of right to seek new counsel or file brief on his own behalf); see Adams.


                         2. Sufficiency of Counsel’s Analysis
               Next, we consider whether Counsel engaged in a sufficient review,
addressed each issue Merritt wished to have raised, and explained why those issues
were meritless. In his no-merit letter, Counsel provided a thorough discussion
examining each of the issues raised by Merritt in his petition for review. Our review
of the record and Counsel’s analysis convinces us he engaged in a careful review of
the record and relevant authority.


               Counsel addressed Merritt’s first contention that the Board “[f]ailed to
credit [his] original sentence with all the time to which he is entitled.” Pet. for
Review, ¶6(a). Although Merritt’s articulation of this issue is vague, Counsel
determined from correspondence with Merritt that this assertion related to the period
from April 10, 2015 to July 30, 2015. During that period, Merritt was in custody in
lieu of bail, as well as under the Board’s detainer. However, the Board did not
recalculate Merritt’s new minimum and maximum parole dates until its May 2018
order. Counsel confirmed that Merritt did not petition for review of that order.
Moreover, Counsel stated the Board’s May 2018 recommitment order, which he
obtained and shared with Merritt, revealed that the Board did credit Merritt with the
time at issue. Therefore, Counsel concluded Merritt’s first issue lacked factual or
legal merit.



      5
        We cite this unreported decision as persuasive authority, pursuant to 210 Pa. Code
§69.414(a).


                                            7
             Addressing Merritt’s second issue alleging excessive backtime,
Counsel examined the Board’s order requiring Merritt to serve 30 months of
backtime related to the New Convictions in Chester County. Counsel determined
each offense had a presumptive range of 6-12 months. For five offenses, the
aggregate maximum backtime was 60 months. See 37 Pa. Code §§ 75.2, 75.3.
Counsel observed the 30-month backtime period was within the aggregate range.
Citing Bandy v. Pennsylvania Board of Probation and Parole, 530 A.2d 507 (Pa.
Cmwlth. 1987) and Corley v. Pennsylvania Board of Probation and Parole, 478 A.2d
146 (Pa. Cmwlth. 1984), he explained the Board is permitted to add together the
presumptive ranges for multiple convictions in assessing backtime. Further, citing
Smith v. Pennsylvania Board of Probation and Parole, 574 A.2d 558 (Pa. 1990), he
noted the Board’s assessment of backtime within the aggregate range is not
appealable as excessive. Therefore, Counsel concluded Merritt’s second issue had
no factual or legal merit.


             Concerning Merritt’s third issue contending the Board improperly
calculated his backtime consecutively rather than concurrently, Counsel examined
each of the three backtime assessments against Merritt. Those assessments were 30
months, 24 months, and 6 months, respectively. Because the Board calculated a total
backtime assessment of 30 months, Counsel concluded the Board was counting the
three assessments concurrently, not consecutively as asserted by Merritt.
Therefore, Counsel concluded Merritt’s third issue had no factual or legal merit.


             Regarding Merritt’s fourth issue, failure to provide him with a copy of
the Order to Recommit setting forth his recalculated maximum sentence date,



                                         8
Counsel observed that in the Board’s order for which Merritt is seeking review, the
Board did not recalculate Merritt’s maximum sentence date. Thus, there was no
recalculation for the Board to send to him at that time. Therefore, Counsel concluded
Merritt’s fourth issue had no factual or legal merit.


             Analyzing Merritt’s fifth issue, the Board’s delay in dismissing
Merritt’s request for administrative relief, Counsel determined the delay did not
prejudice Merritt. The Board did not recalculate the maximum sentence date until
after it dismissed Merritt’s request for administrative relief. Thus, Merritt was still
able to object to the maximum date once the Board calculated it. The Board’s order
dismissing Merritt’s request for administrative relief correctly stated the Board had
not yet calculated the maximum sentence date at that time.          Therefore, Counsel
concluded Merritt’s fifth and final issue had no factual or legal merit.


             In sum, Counsel’s analysis demonstrated that he carefully addressed
each issue Merritt raised, and explained why each issue was meritless. Further, our
review of the record and Counsel’s analysis in the no-merit letter provide this Court
with a sufficient basis to consider the issues Merritt raises in the petition for review.
See Commonwealth v. Harris, 553 A.2d 428 (Pa. Super. 1989) (by providing
adequate no-merit letter, counsel ensures meaningful independent review by the
court). Accordingly, we proceed to a separate consideration of Merritt’s arguments.


                               3. Independent Review
             We observe initially that Merritt failed to file any brief in support of his
petition for review, despite this Court’s explicit directive that he do so either through
new counsel or on his own behalf. Under Pa. R.A.P. 2188, where a petitioner fails

                                           9
to file a brief, the opposing party may seek dismissal of the appeal. Here, however,
the Board did not seek dismissal. See Commonwealth v. Kephart, 594 A.2d 358
(Pa. Super. 1991) (appellee waived defects in appellant’s compliance with appellate
rules, where appellee filed no brief). Moreover, the record and Counsel’s no-merit
letter provide sufficient information to allow meaningful review. Therefore, we
consider Merritt’s arguments. See In re AMA/Am. Mkt. Ass’n, 142 A.3d 923 (Pa.
Cmwlth. 2016) (denying motion to quash, where failure to comply with appellate
rules did not preclude effective review); Bell Tel. Co. v. Workmen’s Comp. Appeal
Bd. (Rothenbach), 511 A.2d 261 (Pa. Cmwlth. 1986) (disposing of merits of appeal,
despite noting appellant was precluded from filing brief for failure to comply with
court’s filing deadline); Hazzard v. Commonwealth (Pa. Cmwlth., Nos. 1996 & 1997
C.D. 2013, filed January 6, 2015), 2015 Pa. Commw. Unpub. LEXIS 10 (unreported)
(same).


             After careful review of the record, we agree with Counsel’s analysis.
We conclude Merritt’s petition for review lacks factual or legal reasons that might
arguably support the appeal.


             Notably, Merritt failed to preserve his first, second, and fourth issues
for review by this Court.


             Regarding his first issue concerning the Board’s failure to credit time
against Merritt’s sentence, that issue did not arise until the Board’s May 2018 order
recalculating his maximum sentence date. As Counsel correctly observed, Merritt
failed to file a petition for review of the May 2018 order. Therefore, he waived any



                                         10
objection to the recalculation date. Plummer v. Pa. Bd. of Prob. & Parole, 926 A.2d
561 (Pa. Cmwlth. 2007).6


               Merritt likewise failed to preserve his second issue, alleging excessive
backtime, and his fourth issue, asserting the Board failed to send him the order to
recommit so that he could review his recalculated maximum sentence date. Merritt
did not raise these issues in a request for administrative relief to the Board.
Accordingly, they are waived, precluding this Court’s review. McKenzie v. Pa. Bd.
of Prob. & Parole, 963 A.2d 616 (Pa. Cmwlth. 2009).


               As for Merritt’s third issue, he is simply wrong in asserting that the
Board imposed his backtime consecutively. Counsel’s analysis of this issue was
correct in all respects.


               Regarding Merritt’s fifth and final issue, we agree with Counsel that
because the Board issued its order recalculating the maximum sentence date after it
dismissed Merritt’s request for administrative relief, Merritt could have sought
review of that order. Therefore, Merritt was not prejudiced by the Board’s alleged
delay in recalculating his maximum sentence date.




       6
         Moreover, from our review of the documents in the record, the sentence dated July 14,
2016 for the first of the New Criminal Convictions indicates Merritt’s time in custody from April
15 to July 14, 2016 was properly credited against that sentence. Where an arrestee is detained by
the Board and also held for failure to post bail on pending new criminal charges, credit for that
period of dual custody is properly credited against the sentence, if any, ultimately imposed on the
new criminal charges. Smith v. Pa. Bd. of Prob. & Parole, 171 A.3d 759 (Pa. 2017).


                                                11
             Counsel complied with all technical and substantive requirements for
requesting withdrawal. After careful independent review, this Court agrees the
petition for review is frivolous. Accordingly, we grant the petition to withdraw.


                         B. Disposition of Petition for Review
             As discussed above, following our independent review of the record
and applicable law, we agree with Counsel that Merritt’s petition for review has no
merit. Because we conclude the petition for review completely lacks factual or legal
reasons that might arguably support an appeal, we hold the petition for review is
wholly frivolous. We therefore affirm the Board’s dismissal of Merritt’s request for
administrative relief.


                                   IV. Conclusion
             Based on the foregoing, we agree with Counsel that Merritt’s petition
for review has no merit. Concluding its complete lack of any merit renders the
petition for review frivolous, we grant Counsel’s request to withdraw. We also
affirm the order of the Board.




                                        ROBERT SIMPSON, Judge




                                          12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Merritt,                        :
                        Petitioner     :
                                       :
            v.                         :      No. 474 C.D. 2018
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :


                                     ORDER

            AND NOW, this 7th day of January, 2019, we GRANT David Crowley,
Esquire’s petition to withdraw as counsel.       We AFFIRM the order of the
Pennsylvania Board of Probation and Parole.




                                      ROBERT SIMPSON, Judge
