         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Clayton,                        :
                   Petitioner         :
                                      :
            v.                        : No. 431 C.D. 2016
                                      : SUBMITTED: May 19, 2017
Pennsylvania Board of                 :
Probation and Parole,                 :
                  Respondent          :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                          FILED: August 31, 2017


            James Clayton petitions for review of the February 18, 2016
determination of the Pennsylvania Board of Probation and Parole (Board) denying
Clayton’s request for administrative review of the Board’s recommitment order.
Appointed counsel, James L. Best, Esquire (Counsel), has filed a petition for leave
to withdraw as counsel, asserting that Clayton’s petition for review is meritless.
We grant Counsel’s petition and affirm the Board’s determination.


            On February 25, 2011, Clayton was sentenced to serve 2½ to 5 years
in prison for drug-related offenses. On January 6, 2014, Clayton was paroled to
Liberty Management halfway house. On April 12, 2014, Clayton absconded from
the house and was arrested on new criminal charges on May 8, 2014. On May 16,
2014, a parole revocation hearing was held at which Clayton admitted being a
technical parole violator (TPV).             On June 19, 2014, the Board recommitted
Clayton as a TPV to serve 6 months of backtime.


                 On February 12, 2015, Clayton, after pleading guilty to the new
criminal charges, was sentenced to 11½ to 23 months imprisonment on the new
charges. At a Board hearing on March 27, 2015, Clayton admitted to being a
convicted parole violator (CPV) due to his criminal conviction on the new charges.
On September 23, 2015, the Board recommitted Clayton as a CPV to serve 24
months of backtime. Clayton requested administrative review, which was denied
by the Board. Subsequently, Clayton petitioned this Court for review.1 Thereafter,
Counsel filed an application for leave to withdraw and a no-merit letter, contending
that Clayton’s appeal is meritless.


                 When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if counsel: (1) notifies the
petitioner of the request to withdraw; (2) furnishes the petitioner with a copy of an
Anders2 brief or a no-merit letter satisfying the requirements of Turner;3 and (3)
advises the petitioner of his right to retain new counsel or submit a brief on his

       1
          Our review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

       2
           Anders v. State of California, 386 U.S. 738 (1967).

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


                                                  2
own behalf. Encarnacion v. Pennsylvania Board of Probation and Parole, 990
A.2d 123, 125 (Pa. Cmwlth. 2010). A no-merit letter must set forth: (1) the nature
and extent of the counsel’s review of the case; (2) the issues the petitioner wishes
to raise on appeal; and (3) counsel’s analysis as to why the appeal has no merit. Id.
at 126. Once these requirements are met, this Court will independently review
petitioner’s appeal to determine whether it is meritless. Id.


                 Here, Counsel mailed Clayton a letter informing Clayton of Counsel’s
request to withdraw. Counsel included a no-merit letter, which detailed the nature
and extent of Counsel’s review of Clayton’s case, set forth the issues raised, and
explained why Counsel concluded that Clayton’s appeal is meritless. Counsel also
provided Clayton with a copy of this Court’s order advising Clayton that he may
obtain substitute counsel at his own expense to file a brief in support of Clayton’s
petition or that he may file a brief on his own behalf. Because Counsel has
satisfied the elemental requirements of Turner, this Court will now independently
review the merits of Clayton’s appeal.


                 Clayton argues that the Board’s recommitment of him as a CPV and
the resulting new maximum sentence date is in error because it countermands,
reverses, and interferes with the finality of court orders. Specifically, Clayton
argues that the new maximum release date is the Board’s interpretation of Section
6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138(a)(2), and
that this interpretation encroaches on the exclusive province of the judicial branch
of government.4 Simply, Clayton argues that the Board violated the separation of

4
    Section 6138(a) of the Code provides:
(Footnote continued on next page…)
                                            3
powers doctrine by its notice of decision dated September 23, 2015, which
forfeited his street time upon his parole revocation for a new criminal offense; that
such forfeiture is unconstitutional because the Board is without power to alter a
judicial sentence.


              Clayton’s argument has been repeatedly rejected by our Courts. In
Young v. Pennsylvania Board of Probation and Parole, 409 A.2d 843, 848 (Pa.
1979), our Supreme Court determined that the “Board’s power to deny credit for
‘street time’ . . . is not an encroachment upon the judicial sentencing power.”
Further, in Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568,
570 (Pa. 1980), the Supreme Court stated that “when the Board refuses to credit a
[CPV] with time spent free on parole there is neither a usurpation of the judicial

(continued…)


              Convicted violators. –

                      (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, except as provided under paragraph (2.1), shall
              be given no credit for the time at liberty on parole.

61 Pa. C.S. §6138(a)(1) and (2).



                                              4
function of sentencing nor a denial of the procedural safeguards to which persons
are entitled.” In Davidson v. Pennsylvania Board of Probation and Parole, 33
A.3d 682, 686 (Pa. Cmwlth. 2011), this Court agreed with Young and determined
that “the Board did not violate the separation of powers doctrine by acting pursuant
to 61 Pa. C.S. § 6138 and recommitting [the p]etitioner as a [CPV] without credit
for time served at liberty on parole.” Thus here, as in Young, Gaito, and Davidson,
the Board in this case did not violate the separation of powers doctrine when it
recommitted Clayton as a CPV to serve 24 months of backtime, thereby forfeiting
his time at liberty on parole.


             Accordingly, we grant Counsel’s petition for leave to withdraw as
counsel for Clayton and affirm the Board’s determination.




                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge




                                         5
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Clayton,                        :
                    Petitioner        :
                                      :
               v.                     : No. 431 C.D. 2016
                                      :
Pennsylvania Board of                 :
Probation and Parole,                 :
                  Respondent          :


                                    ORDER


               AND NOW, this 31st day of August, 2017, the petition for leave to
withdraw as counsel filed by James L. Best, Esquire in the above-captioned matter
is hereby granted and the order of the Pennsylvania Board of Probation and Parole
is affirmed.



                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge
