              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Antoine Jamel Farlow,                         :
                             Petitioner       :
                                              :
                      v.                      :   No. 1253 C.D. 2018
                                              :   Submitted: March 8, 2019
Pennsylvania Board,                           :
of Probation and Parole,                      :
                             Respondent       :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                              FILED: August 12, 2019


      Antoine Jamel Farlow (Farlow) petitions for review of an August 13, 2018
Order of the Pennsylvania Board of Probation and Parole (Board) that affirmed the
Board’s action of February 2, 2018, recommitting Farlow as a convicted parole
violator (CPV). Farlow is represented by appointed counsel, Kent D. Watkins,
Esquire (Counsel). Counsel has filed a Petition for Leave to Withdraw as Counsel
(Application to Withdraw) and a Turner1 Letter in support thereof. For the following
reasons, we grant Counsel’s Application to Withdraw and affirm the Board’s Order.
      On May 8, 2013, the Board paroled Farlow (Decision to Release on Parole,
Certified Record (C.R.) at 4), and he was released from custody on June 3, 2013


      1
          Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
(Technical Violation Arrest Report, C.R. at 19). At the time of his parole, Farlow
was serving a sentence on four counts of drug manufacture/sale/delivery. (C.R. at
1.) Farlow’s maximum sentence date was August 4, 2018. (Id.) On October 27,
2016, Farlow was declared delinquent by the Board, with an effective date of
delinquency of October 24, 2016, for relocating without authorization. (C.R. at 11,
19.) On November 8, 2016, the Philadelphia Police Department arrested Farlow for
burglary, criminal trespass, criminal mischief, terroristic threats, and recklessly
endangering another person (collectively referred to as new charges). (Philadelphia
Police Department Arrest Report, C.R. at 13.) Bail was set on the new charges on
November 9, 2016, in the amount of $10,000.00/10%, which was not posted by
Farlow. (C.R. at 60.) The Board was notified of Farlow’s arrest on November 8,
2016, and the Board issued a Warrant to Commit and Detain Farlow on the same
date. (C.R. at 12.)
      On November 15, 2016, Farlow received a Notice of Charges and Hearing,
which scheduled a preliminary hearing and detention hearing for November 22,
2016. (C.R. at 21.) On the same date, Farlow waived his right to counsel at the
preliminary/detention hearing, waived the preliminary/detention hearing, and
admitted to violating the terms of his parole. (C.R. at 23-24.) Thereafter, on
February 15, 2017, the Board issued a decision, which detained Farlow until
disposition of the new charges, and recommitted him for six months as a technical
parole violator (TPV) based upon Farlow’s admission of the technical parole
violation. (C.R. at 35-36.) Pursuant to the Board’s February 15, 2017 decision,
Farlow was to be automatically reparoled without further action by the Board on
May 8, 2017. (Id.). His parole violation maximum date was calculated as August
19, 2018, reflecting the 15 days he lost due to delinquency. (Id.).



                                          2
      On October 20, 2017, Farlow entered into a negotiated plea agreement for the
new charges whereby he pled guilty to simple assault, recklessly endangering
another person, and possessing an instrument of crime. (Negotiated Guilty Plea
Sentencing Order, C.R. at 57-58.) For the charge of simple assault, Farlow received
a sentence of 6 months to 23 months of confinement in a county prison. (Id.) Farlow
received a minimum of two years of probation on the charge of recklessly
endangering another person, and a minimum of four years of probation on the charge
of possessing an instrument of a crime. (Id.)
      On November 9, 2017, Farlow received a Notice of Charges and Hearing
scheduling a parole revocation hearing for November 15, 2017, at the State
Correctional Institution (SCI) at Graterford. (C.R. at 40.) On the same date, Farlow
waived the panel and revocation hearing and his right to counsel at said hearings, as
well as admitted to violating his parole. (C.R. at 52.) On February 2, 2018, the
Board, relying on Farlow’s guilty plea, issued a decision recommitting him to serve
18 months of back time, to be served concurrent to his sentence of 6 months as a
TPV. (C.R. at 68-69.) The Board indicated that it did not award Farlow credit for
time spent at liberty on parole because his “conviction involved possession of a
weapon.” (Id. at 69.) Farlow’s parole violation maximum date was recalculated to
December 20, 2022. (Order to Recommit, C.R. at 70.) He was given back time
credit of one day from November 8, 2016, to November 9, 2016. (Id.)
      Farlow filed a pro se Administrative Remedies Form on February 13, 2018,
alleging:

      There are no statutory provisions . . . that authorize the [Board] to
      change the maximum date of a sentence that was imposed by a court of
      law. This fact is extremely crucial to note because although the [Board]
      does lawfully possess the authority to grant parole on an imposed
      sentence after the sentence’s minimum term has expired, the [B]oard []


                                         3
      does not possess the lawful authority to change the maximum term
      (maximum date) that has already been imposed by the court.

(Administrative Remedies Form, C.R. at 72.) In his Petition for Administrative
Review, which accompanied his Administrative Remedies Form, Farlow alleged:

      [T]he [Board] does not have the power to alter, increase, decrease, or
      extend the judicially imposed sentence, a violation occurs when a
      parole violator receives their “Green Sheet” that specifies their
      maximum date has been pushed back to a later time. This violation
      occurs whenever the [] [B]oard exercises [its] authority to revoke a
      parole violator’s “street time,” either after a new criminal conviction
      (for convicted violators), or after the [] [Board] has determined that the
      parolee served a certain amount of delinquent time while on parole (for
      technical violators).

(Id.) Additionally, Farlow filed a second Petition for Administrative Review on
February 16, 2018, in which he alleged the Board “failed to give [him] credit for all
time served exclusively pursuant to the [B]oard’s warrant.” (C.R. at 74.)
      The Board responded to Farlow’s administrative appeals by letter on August
13, 2018, which stated “[t]he decision to recommit [Farlow] as a [CPV] gave the
Board statutory authority to recalculate his sentence to reflect that he received no
credit for the period he was at liberty on parole.” (C.R. at 75.) The Board noted that
it advised Farlow of his potential penalty and that Farlow had constructive notice of
his potential penalty via statute. (Id.) The Board concluded that it properly
recalculated Farlow’s maximum date to December 20, 2022, explaining it gave
Farlow only one day credit from November 8, 2016, to November 9, 2016, because
this was the only day in which Farlow was held solely on the Board’s warrant. (Id.
at 76.) The Board further explained that it did not award Farlow credit for the period
from November 9, 2016, to October 20, 2017, because he was being held on both
the Board’s warrant and the new charges. (Id.)


                                          4
      Farlow, through Counsel, now petitions for review of the August 13, 2018
Order of the Board. Farlow presents a single issue for review, that the Board “failed
to give [Farlow] credit for all time served exclusively to its warrant.” (Petition for
Review ¶ 5.) On November 23, 2018, Counsel filed the Application to Withdraw,
along with the Turner Letter, explaining why he believed Farlow’s arguments were
frivolous. In his Letter, Counsel avers that he reviewed the record certified by the
Board, as well as applicable case law, and that based upon his review he concludes
Farlow’s Petition for Review “has no basis in law or in fact and is, therefore,
frivolous.” (Turner Letter at 9.) Counsel’s Application to Withdraw, as well as the
Turner Letter, were mailed to Farlow on July 2, 2018.
      On November 27, 2018, this Court issued an Order directing that Counsel’s
Application to Withdraw be considered along with the merits of Farlow’s Petition
for Review. Further, the Order gave Farlow 30 days to either obtain substitute
counsel or file a brief on his own behalf. Thereafter, on January 29, 2019, the Board
filed a praecipe to dismiss Farlow’s Petition for Review. In its praecipe, the Board
argued that since Farlow had not filed a brief within 30 days of this Court’s
November 27, 2018 Order, this matter should be dismissed. This Court entered an
Order on February 6, 2019, denying the Board’s praecipe to dismiss.
      Preliminary, before addressing the merits of Farlow’s Petition for Review, we
must first determine whether Counsel should be permitted to withdraw. Pursuant to
Section 6(a)(10) of the Public Defender Act, “public defender[s] shall be responsible
for furnishing legal counsel . . . to any person who, for lack of sufficient funds, is
unable to obtain legal counsel [for] . . . [p]robation and parole proceedings and
revocation thereof.” Act of December 2, 1968, P.L. 144, as amended, 16 P.S.
§ 9960.6(a)(10). However, while an indigent parolee has the right to assistance of



                                          5
counsel in parole revocation proceedings, including appeals, a parolee is not entitled
to representation by appointed counsel to pursue a frivolous appeal. Adams v. Pa.
Bd. of Prob. & Parole, 885 A.2d 1121, 1123 (Pa. Cmwlth. 2005). If court-appointed
counsel “concludes, after a thorough review of the record, the appeal is wholly
frivolous,” counsel may move to withdraw as counsel of record. Id. “An appeal is
‘wholly frivolous’ when it completely lacks factual or legal reasons that might
arguably support the appeal.” Id. Before counsel can withdraw, counsel must
complete the technical requirements for withdraw.            The specific technical
requirements for withdrawal are dependent on whether the parolee has a
constitutional or statutory right to counsel. A constitutional right to counsel arises
when a parolee raises 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. & Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth. 2009)
(quoting, Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). Counsel seeking to
withdraw from a case in which a parolee has a constitutional right to counsel must
file an Anders2 brief. However, in cases where a parolee’s right to counsel does not
derive from the constitution, but rather from the Public Defender Act, counsel
seeking to withdraw is excused from filing an Anders brief but must instead file a
no-merit letter pursuant to Turner. Hughes, 977 A.2d at 25-26.


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


                                                6
      Pursuant to Turner, a no-merit letter must “detail[] the nature and extent of
the [counsel’s] review and list[] each issue the [parolee] wished to have raised, with
counsel’s explanation of why those issues are meritless.” Turner, 544 A.2d at 928.
Counsel seeking to withdraw must provide the parolee: “(1) a copy of the ‘no merit’
letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising
[the parolee] of the right to proceed pro se or by new counsel.” Zerby v. Shanon,
964 A.2d 956, 960 (Pa. Cmwlth. 2009). If counsel has complied with the above-
mentioned technical requirements, this Court “will conduct its own independent
review to determine whether the petition for review is, in fact, without merit.”
Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 44 (Pa. Cmwlth. 2010).
      Here, Farlow does not have a constitutional right to counsel because he does
not attack the underlying parole violation; therefore, Farlow’s right to counsel is
derived from the Public Defender Act. As such, Counsel filed a Turner Letter. A
review of Counsel’s Turner Letter shows that it meets the requirements set forth in
Turner. The letter provides citations to the record certified by the Board, as well as
a summary of the procedural history and facts. Counsel discussed the issue raised
in Farlow’s Petition for Review and provided a thorough discussion of why this
matter is frivolous and meritless. Counsel’s Turner Letter reflects that he thoroughly
reviewed the record and the applicable law. Additionally, upon review of the
Application to Withdraw, it is clear Counsel has met the technical requirements to
withdraw. Counsel has provided certificates of service demonstrating he mailed the
Turner Letter and the Application to Withdraw to Farlow on November 23, 2018.
Counsel’s Turner Letter advised Farlow of his right to retain substitute counsel or
proceed pro se. Therefore, because Counsel has met the technical requirements to




                                           7
withdraw, we now turn to Farlow’s Petition for Review to independently determine
whether it is indeed frivolous.3
       As stated above, Farlow presents one issue for review, that the Board did not
give him “credit for all time served exclusively to its warrant.” (Petition for Review
¶ 5.) The Board issued its Warrant to Commit and Detain Farlow on November 8,
2016. The Board gave Farlow credit for one day, November 8, 2016 to November
9, 2016, the time between when the Board issued its warrant and when bail was set
on the new charges by the Court of Common Pleas of Philadelphia County. To the
extent that Farlow argues he should have been credited for the time between the
Board’s warrant and when he entered into the plea agreement on the new charges,
this argument is not persuasive.
       In Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571
(Pa. 1980), the Supreme Court held that:

       [I]f a [parolee] is being held in custody solely because of a detainer
       lodged by the Board and has otherwise met the requirements for bail on
       the new criminal charges, the time which he spent in custody shall be
       credited against his original sentence. If a [parolee], however, remains
       incarcerated prior to trial because he has failed to satisfy bail
       requirements on the new criminal charges, then the time spent in
       custody shall be credited to his new sentence.


Similarly, when a parolee “[i]s detained under both the Board’s warrant and the new
criminal charges, this time is properly allocated to his new criminal sentence.”
Hammonds v. Pa. Bd. of Prob. & Parole, 143 A.3d 994, 999 (Pa. Cmwlth. 2016).


       3
        Our standard of review in parole revocation cases “is limited to determining whether the
Board committed a constitutional violation or an error of law and whether the findings of fact are
supported by substantial evidence.” Lee v. Pa. Bd. of Prob. & Parole, 885 A.2d 634, 637 (Pa.
Cmwlth. 2005.)


                                                8
Only where “it is not possible to award all of the credit on the new sentence because
the period of pre-sentence incarceration exceeds the maximum term of the new
sentence” may the excess time be applied to the parolee’s original sentence.
Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 355 (Pa. Cmwlth. 2007).
      Here, Farlow was being held on both the Board’s warrant and the new charges
because he did not post bail. Thus, pursuant to Gaito, Farlow is not entitled to credit
for the time he was being held on both the Board’s warrant and the new charges
because he did not post bail on the new charges. 412 A.2d at 571. As a result, only
the time between the issuance of the Board’s warrant and the setting of bail could be
credited. Thus, we cannot find the Board committed an error in only crediting
Farlow for one day. Therefore, based upon the foregoing, Farlow’s Petition for
Review is “wholly frivolous” as it “lacks factual or legal reasons that might arguably
support the appeal.” Adams, 885 A.2d at 1123. Accordingly, we grant Counsel’s
Application to Withdraw and affirm the Board’s August 13, 2018 Order.



                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Antoine Jamel Farlow,                      :
                           Petitioner      :
                                           :
                   v.                      :   No. 1253 C.D. 2018
                                           :
Pennsylvania Board,                        :
of Probation and Parole,                   :
                           Respondent      :



                                        ORDER


      NOW, August 12, 2019, the Petition for Leave to Withdraw as Counsel filed
by Kent D. Watkins, Esquire, is GRANTED, and the Order of the Pennsylvania
Board of Probation and Parole, entered in the above-captioned matter, is
AFFIRMED.



                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge
