          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Timothy A. Crawford, Jr.,                 :
                 Petitioner               :
                                          :
             v.                           :
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :   No. 433 C.D. 2019
                  Respondent              :   Submitted: October 11, 2019


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                       FILED: April 20, 2020


             Timothy A. Crawford, Jr. (Crawford) petitions for review from the
March 25, 2019 order of the Pennsylvania Board of Probation and Parole (Board)
denying Crawford’s appeal challenging the Board’s recalculation of his parole
violation maximum sentence date. Crawford is represented by Joshua M. Yohe,
Esquire (Counsel), who asserts that the appeal is without merit and seeks permission
to withdraw as counsel. For the foregoing reasons, we grant Counsel’s motion to
withdraw and affirm the order of the Board.
             On January 17, 2016, the Board released Crawford on parole from a
state correctional institution where he was serving a sentence of one year, six months
to five years for his robbery conviction and, at the time, his maximum sentence date
was November 16, 2017. Certified Record (C.R.) at 1-2 & 7. On April 15, 2017,
Crawford was arrested on new criminal charges and the Board detained him. Id. at
12, 15-21, 25 & 66. On April 17, 2017, the City of Sharon Police Department
charged Crawford with several drug-related crimes and bail was set at $5,000. Id.
at 119. By order dated August 31, 2017, the Court of Common Pleas of Mercer
County (trial court) lowered bail to “ROR” (release on his own recognizance). Id.
On November 16, 2017, the Board issued an order to cancel its detainer because
Crawford’s initial maximum date lapsed. Id. at 78-81. Three days later, on
November 19, 2017, the Board declared Crawford delinquent for control purposes
effective the date of his arrest on his new criminal charges (April 15, 2017). Id. at
82. On November 22, 2017, Crawford was released from a state correctional
institution. Id. at 132.1
               On June 18, 2018, Crawford pleaded no contest to one count of
possession with intent to deliver a controlled substance arising from the April 17,
2017 criminal complaint. C.R. at 87. On the same day, the trial court sentenced
Crawford to a period of incarceration of not less than 180 days nor more than 18
months concurrent to any outstanding sentence with credit for time served from
April 15, 2017 through November 21, 2017. Id. at 87-90. On June 25, 2018, the
Board detained Crawford and, in its detainer, the Board noted that his maximum
sentence was November 16, 2017, but that the maximum sentence date was being
extended due to a new conviction, and indicated that Crawford owes about 15
months. Id. at 86. Additionally, on the same day, the Board issued a notice of


       1
         After Crawford was released, three criminal complaints were filed against him. Two of
those complaints, filed on April 30, 2018 and May 20, 2018, resulted in convictions that did not
require Crawford to serve additional time incarcerated. C.R. at 83-85 & 146-53. The third
complaint was filed on August 31, 2018 relating to an incident that allegedly occurred on May 8,
2018. Id. at 154-59. The certified record does not provide information regarding the resolution of
the August 31, 2018 complaint. Id.
                                                2
charges to schedule a revocation hearing, but Crawford waived his right to counsel
and to a hearing. Id. at 91 & 100-01.
              The Board, by decision mailed August 15, 2018, notified Crawford of
its decision to recommit him as a convicted parole violator. C.R. at 133-34. The
Board ordered Crawford to serve his unexpired term of 590 days, refused to grant
him credit for time spent at liberty on parole,2 and recomputed his maximum
sentence date to February 5, 2020.3 Id. Crawford challenged the Board’s August
15, 2018 decision through documents entitled “Legal Argument in Support (Reasons
for Appeal)” and “Request for Administrative Remedy.”4 Id. at 135-43. The Board,
by decision mailed March 19, 2019, modified its August 15, 2018 decision to correct
the “unexpired term.” Id. at 170. The Board lowered Crawford’s unexpired term of




       2
          The Board indicated in its hearing report form that Crawford had a poor supervision
history given that he received two convictions while delinquent. C.R. at 94 & 99. Notably, the
third criminal complaint, see supra note 1 and infra note 8, was filed against Crawford after the
Board rendered its August 15, 2018 decision to recommit him as a convicted parole violator. Id.
at 154-59.
       3
          In its Order to Recommit, the Board indicated that Crawford’s original maximum
sentence date was November 16, 2017, and he was paroled on January 17, 2016, leaving him with
669 days owed on his original sentence. C.R. at 109. The Board credited Crawford with 79 days
of backtime when he was held only on the Board’s detainer. Id. Specifically, the Board credited
Crawford with 2 days for time served from April 15, 2017 (date of arrest) to April 17, 2017 (date
of criminal complaint), and 77 days from August 31, 2017 (day bail reduced to ROR) to November
16, 2017 (day Crawford was ordered released). Id. Crawford owed 590 days on his original
sentence. Id. Crawford’s custody for return date was June 25, 2018, and adding 590 days to this
date results in a new maximum date of February 5, 2020. Id.
       4
         The Board received Crawford’s appeal on August 27, 2018. C.R. at 135. Additionally,
Crawford filed correspondence received by the Board on February 21, 2019, March 13, 2019,
March 14, 2019, and March 18, 2019. Id. at 160, 162, 164, 166 & 172. The Board regulations
provide that “[s]econd or subsequent petitions for administrative review and petitions for
administrative review which are out of time under this part will not be received.” 37 Pa. Code §
73.1(b)(2).
                                               3
backtime by 6 days to 584 days and changed Crawford’s parole violation maximum
date to January 30, 2020. Id.5
              Next, the Board responded to Crawford’s appeal by decision mailed
March 25, 2019, wherein it affirmed in part and reversed in part its August 15, 2018
decision. C.R. at 173-75. The Board affirmed that it has the authority to recalculate
Crawford’s maximum sentence date and explained that the Board did not violate any
constitutional provisions, including double jeopardy. Id. at 174-75. Additionally,
the Board reversed its decision to the extent that Crawford’s maximum sentence date
had a calculation error and notified Crawford that he could appeal the Board’s March
19, 2019 decision modifying his maximum sentence date to January 30, 2020. Id.
Crawford petitioned this Court for review of the Board’s March 25, 2019 decision.
              In his petition for review, Crawford argues that the Board erred by
recalculating his maximum sentence date because the Board does not have the power
to alter a judicially imposed sentence. Petition for Review ¶¶ 5-8. In support of his
assertion, Crawford contends that the Board entered into an “illegal contract” with
him concerning a judicially imposed sentence and has “unlawfully punished” him
pursuant to such “illegal contract.” Id. ¶ 9. Crawford asserts that “the judicially[]
imposed sentence is exclusively governed by the court whom [sic] imposed such
judgment and sentence” and that “only the sentencing court possesses the authority
and jurisdiction necessary to enter into an agreement” with the Board concerning the
“increase or decrease of the maximum date of the imposed sentence.” Id. ¶ 10.


       5
         Additionally, the Board modified its Order to Recommit and indicated that Crawford only
owed 584 days of backtime to reach the new maximum sentence date of January 30, 2020. C.R.
at 168. The Board credited Crawford with time he served for six days from November 16, 2017
(the day Crawford’s maximum sentence lapsed) to November 22, 2017 (the day of Crawford’s
release). Id. at 2 & 132.

                                               4
Further, Crawford states that “any written agreement/contract . . . is void . . . and . .
. unenforceable.” Id. ¶ 11.6 This Court, by order dated April 29, 2019, appointed
Counsel to represent Crawford in this matter. On August 8, 2019, Counsel filed two
motions with this Court: a motion to withdraw, to which he attached as an exhibit a
no-merit letter directed to Crawford, and a no-merit motion. In his no-merit motion,
Counsel provided that the issue before this Court is whether the Board “lacked
authority to recalculate [Crawford’s] max date as a result of his status as a convicted
parole violator.” No-Merit Motion ¶ 13. After review of the issue, Counsel
determined that it is “wholly frivolous and meritless” and there is no legal basis to
challenge the Board’s determination. Motion to Withdraw ¶ 1; No-Merit Letter
dated 8/8/19 at 1 (No-Merit Letter) & No-Merit Motion ¶¶ 13-17.
              When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if counsel satisfies the following
requirements: (i) he must notify the petitioner of the request to withdraw; (ii) he
must furnish the petitioner with a copy of a no-merit letter; and (iii) he must advise
the petitioner of his right to retain new counsel and to raise any new points he might
deem worthy of consideration. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d
66, 69 (Pa. Cmwlth. 2013) (citing Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d
19, 22 (Pa. Cmwlth. 2009)). The no-merit letter must detail: (i) the nature and extent
of the counsel’s review; (ii) each issue the petitioner wished to have raised; and (iii)
counsel’s explanation as to why those issues are meritless. Miskovitch, 77 A.3d at
69 (citing Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), & Hughes, 977 A.2d
at 26); see also Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). A no-merit
letter must include “substantial reasons for concluding that” a petitioner’s arguments

       6
         Crawford’s pro se petition for review contains 11 paragraphs. The remaining paragraphs
of the petition for review contain background information. Petition for Review ¶¶ 1-4.
                                              5
are without merit. Zerby, 964 A.2d at 962. Once appointed counsel fully complies
with these requirements to withdraw, the Court independently reviews the merits of
the petitioner’s claims. Id. at 960.
               Here, Counsel met the technical requirements to withdraw. On August
8, 2019, Counsel filed a Proof of Service with this Court certifying that he served
Crawford, by First-Class Mail, with a copy of the motion to withdraw (to which the
no-merit letter was attached) and the no-merit motion. Proof of Service filed and
dated 8/8/19. In the no-merit letter,7 Counsel advised Crawford that he has a right
to retain new counsel if he wishes or to raise any new points that he may deem
worthy of consideration on his own. Id. at 2. On August 19, 2019, Counsel filed a
Proof of Service with this Court certifying that he served Crawford with a copy of
this Court’s August 12, 2019 order by First-Class Mail, which gave Crawford 30
days to obtain substitute counsel, at his own expense, and to have new counsel enter
an appearance and file a brief, or to file a brief on his own behalf in light of Counsel’s
request to withdraw. See Cmwlth. Ct. Order dated 8/12/19 & Proof of Service dated
8/19/19.
               Turning to the substance of the no-merit letter, Counsel provided a
summary of the facts based on the certified record. No-Merit Letter at 1-2. Counsel
adequately addressed the issue of whether the Board lacks the authority to change
the maximum date of a judicially imposed sentence and provided his analysis as
follows:

       7
         Counsel seeking to withdraw may file an “Anders Brief” or a no-merit letter. See Anders
v. California, 386 U.S. 738 (1967). If petitioner has a constitutional right to counsel, then counsel
should file an Anders Brief. Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 (Pa. Cmwlth.
2009). In cases where there is no constitutional right to counsel, i.e., an appeal from the Board’s
decision to recalculate a parolee’s maximum sentence, this Court only requires a no-merit letter
explaining why the claim is meritless to support the petition to withdraw. Id. at 25-26. The
standard applied in this case is whether Crawford’s claims are without merit. Id. at 26 n.4.
                                                 6
             In Young v. [Pennsylvania Board] of Probation and
             Parole, 409 A.2d 843 (Pa. 1979), our Supreme Court
             addressed this issue, finding that “[t]he fallacy of
             appellant’s position is the attempt to equate time served on
             parole with time served in an institution.” Young, 409
             A.2d at 846. In Ruffin v. Pennsylvania Board of Probation
             and Parole [(Pa. Cmwlth., No. 2038 C.D. 2016, filed July
             13, 2017), 2017 WL 2979404], this Court summarized
             Young as follows: “in exercising its power to recommit a
             parolee beyond the maximum date set by a sentencing
             court without allowing for credit for time spent at liberty
             on parole, the Board is not engaging in an unconstitutional
             usurpation of judicial power but rather is operating under
             the express authority granted to it by the General
             Assembly.” Ruffin, [slip op. at 8-9].
Id. at 2 (emphasis added) (underlining in original omitted). As explained by
Counsel, it is well-settled that the Board, when recalculating the sentence of a
convicted parole violator, is not encroaching upon judicial powers but merely
requiring the parole violator to serve his entire sentence under the authority granted
by the General Assembly. Young, 409 A.2d at 848 (explaining that the Board’s
recalculation of sentence of convicted parole violator is “not an encroachment upon
the judicial sentencing power”). The Board cannot extend the “duration of the
sentence” because fixing the sentence is a judicial function. Id. at 846.
             However, when recalculating a convicted parole violator’s maximum
sentence date, the Board cannot impose backtime that exceeds the remaining balance
of his unexpired term.      See 61 Pa. C.S. § 6138(a)(2) (directing that when
recommitted as a convicted parole violator, “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 . . . ”). It is the duration of the maximum sentence
that controls, not the actual maximum sentence date. Commonwealth ex rel. Banks
v. Cain, 28 A.2d 897, 901 (Pa. 1942). Here, the Board ascertained that Crawford

                                          7
had 584 days remaining on his original sentence. C.R. at 168 & 170; see supra note
5. The Board imposed 584 days when it recommitted Crawford as a convicted parole
violator, and, therefore, the Board did not exceed its authority, or impose backtime
in excess of the duration Crawford owed, when it recalculated his maximum
sentence date to January 30, 2020.8 C.R. at 174. Therefore, Crawford’s argument
lacks merit.
               Accordingly, we grant Counsel’s motion to withdraw and affirm the
Board’s order recalculating Crawford’s maximum sentence date.



                                            __________________________________
                                            CHRISTINE FIZZANO CANNON, Judge




       8
         Additionally, it appears that the maximum sentence date Crawford challenges has lapsed,
and, therefore, this appeal may be moot. See Taylor v. Pa. Bd. of Prob. & Parole, 746 A.2d 671,
674 (Pa. Cmwlth. 2000) (“the expiration of a parolee’s maximum term renders an appeal of a
Board revocation order moot” and “[i]t is well settled that an appeal will be dismissed when the
occurrence of an event renders it impossible for the court to grant the requested relief”). We
cannot, however, ascertain whether the resolution of the third criminal complaint filed on August
31, 2018, see supra note 1, had any bearing on Crawford’s maximum sentence date. Therefore,
our review is limited to the Board’s March 25, 2019 order recalculating Crawford’s maximum
sentence date to January 30, 2020, based on the certified record before us.

                                               8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy A. Crawford, Jr.,             :
                 Petitioner           :
                                      :
            v.                        :
                                      :
Pennsylvania Board of                 :
Probation and Parole,                 :   No. 433 C.D. 2019
                  Respondent          :

                                 ORDER


            AND NOW, this 20th day of April, 2020, the Motion to Withdraw as
Counsel filed by Joshua M. Yohe, Esquire, is GRANTED, and the March 25, 2019
order of the Pennsylvania Board of Probation and Parole is AFFIRMED.



                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
