          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Naylor,                           :
                          Petitioner      :
                                          :
                   v.                     :   No. 557 C.D. 2015
                                          :   SUBMITTED: April 15, 2016
Pennsylvania Board of Probation           :
and Parole,                               :
                        Respondent        :



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                       FILED: June 3, 2016


             Petitioner, Michael Naylor, petitions for review of the order of the
Pennsylvania Board of Probation and Parole (Board) denying his petition for
administrative review of the most recent change to his parole violation maximum
sentence date. In addition, Petitioner’s counsel, Tina M. Fryling, Esquire, petitions
for leave to withdraw her representation, asserting that Petitioner’s appeal is
meritless. After review, we grant counsel’s March 2016 petition and affirm the
Board’s recommitment order.
             The pertinent procedural background of this matter is as follows:
             [B]y notice mailed on February 13, 2015, which
             referenced a Board decision recorded on February 2,
             2015, the Board informed Petitioner of his
               “recommit[ment] to a state correctional institution as a
               technical parole violator to serve 6 months, and as a
               convicted parole violator to serve 6 months, concurrently,
               for a total of 6 months [backtime].” Certified Record,
               Notice of Board Decision, mailed February 13, 2015, at
               1. Petitioner’s new parole violation maximum date was
               listed as August 14, 2018. Petitioner, representing
               himself, promptly filed a request for administrative
               review with the Board, arguing the Board miscalculated
               his parole violation maximum date and requesting the
               Board to re-issue an official action providing for a parole
               violation maximum date of September 23, 2016. The
               Board denied Petitioner’s review request, determining
               that the August 14, 2018, parole violation maximum date
               was correct.
Naylor v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 557 C.D. 2015, filed
February 9, 2016), slip op. at 2. Subsequently, counsel filed a petition for review
with this Court on Petitioner’s behalf, asserting the Board’s imposition of an
incorrect parole violation maximum date. Counsel also filed a petition for leave to
withdraw as counsel, which this Court denied without prejudice.1 In the instant
petition for leave to withdraw as counsel and Turner letter2 in support thereof,

    1
       This Court denied Ms. Fryling’s July 2015 petition to withdraw as counsel, without
prejudice, due to her lack of knowledge regarding Petitioner’s actual parole violation maximum
date. Naylor v. Pa. Bd. of Prob. & Parole, (Pa. Cmwlth., No. 557 C.D. 2015, filed February 9,
2016). In addition, we directed her to refile her petition to withdraw or file a brief in support of
Petitioner’s petition for review within thirty days of our order.
     2
       Pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), counsel aiming to
withdraw from the representation of a petitioner who seeks review of a Board determination
must proffer a “no-merit” letter detailing the nature and extent of counsel’s review and listing the
discrete issues that the petitioner wishes to raise, with counsel’s reasons why those issues lack
merit. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (relying on Turner, 544 A.2d at
928). If counsel fails to satisfy the technical requisites of a no-merit letter, this Court will deny
the attorney’s request to withdraw representation, and we will direct counsel either to file a new
request with supporting documents complying with the technical requisites of a no-merit letter or
a brief advocating on the petitioner’s behalf. Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d
40, 43-44 (Pa. Cmwlth. 2010); Zerby, 964 A.2d at 960. We are now satisfied that counsel has
met her obligations pursuant to Turner.



                                                 2
counsel now maintains that the Board’s parole violation maximum date was
calculated correctly because Petitioner forfeited credit for all of the time that he
spent on parole. We agree.
             Pursuant to Section 6138(a)(2) of the Prisons and Parole Code (Code),
as amended, 61 Pa. C.S. § 6138(a)(2), the convicted parole violator “shall be given
no credit for the time at liberty on parole.” Petitioner was incarcerated in 2008 for
drug-related crimes and recommended for boot camp. Certified Record (C.R.),
Item No. 1 at 1-2. In a March 2011 decision, the Board recommitted him to serve
six months backtime as a technical parole violator and noted that his parole
violation maximum date of July 15, 2014, could change upon conviction of new
criminal charges. Id., Item No. 2 at 6. In an August 2011 decision, the Board
recommitted him as a convicted parole violator to serve fifteen months,
concurrently with the aforementioned six months. Id. at 8. In addition, his parole
maximum date was increased to February 5, 2016.
             Subsequently, the Board reparoled Petitioner in July 2012 based on
his participation in and completion of prescribed institutional programs, acceptance
of responsibility for his offenses and the existence of a state detainer filed against
him. Id. at 12-13. At that time, his parole maximum sentence date was February
5, 2016, and there were 1313 days remaining on his original sentence.              Id.
Effective July 12, 2013, however, Petitioner was declared delinquent, and was
ultimately convicted, for having illegal substances in his possession. Id., Item No.
3 at 24, 26-27; Item No. 4 at 33; and Item No. 5 at 37-38. He, therefore, forfeited
credit for the 294 days when he was previously released on parole: July 2, 2012, to
April 22, 2013. Accordingly, his parole maximum date was moved to September




                                          3
23, 2016, and the total of backtime owed was as follows: 294 + 1313 = 1607 days.
Id., Item No. 3 at 30.
             Following a reparole, Petitioner was arrested once again in February
2014 and placed in SCI-Pittsburgh on March 21, 2014. Following a conviction in
Westmoreland County on October 1, 2014, he was placed in SCI-Albion in “parole
violator pending” status. In a November 2014 decision, the Board recommitted
him as convicted parole violator. Id., Item No. 5 at 70. In a February 2015
decision, the Board recommitted him as both a technical and convicted parole
violator and directed him to serve the six-month time periods concurrently. His
new parole maximum date moved to August 14, 2018, the date now at issue. Id. at
74-75. The Board did not err in computing Petitioner’s new parole maximum date.
             Petitioner was not entitled to credit for backtime served because he
was never incarcerated solely on the Board’s warrant. See Gaito v. Pa. Bd. of
Prob., 412 A.2d 568, 571 (Pa. 1980).3 In addition, he received confinement time
credit of fifty-eight days for the period from April 22, 2013, to June 19, 2013.
Further, he was provided backtime credit of ninety-seven days for the period from
February 28, 2014, date of the Board’s detainer, to June 5, 2014, the date bail was
made secure on new criminal charges. He also received backtime credit of 111
days for the period from June 12, 2014, the date bail was posted/made unsecured,
to October 1, 2014, the date of conviction. Accordingly, he received a total of 266
days credit. Id., Item No. 5 at 72-73. As the Board stated in its March 2015
decision:


    3
      As this Court noted in Smith v. Pennsylvania Board of Probation and Parole, 133 A.3d
820 (Pa. Cmwlth. 2016), Gaito was limited by Martin v. Pennsylvania Board of Probation and
Parole, 840 A.2d 299, 308 (Pa. 2003). That limitation does not apply here.



                                            4
             Applying 266 days to 1,607 days yields a total of 1,341
             days (or 3 years, 7 months, 29 days) owed. [Petitioner]
             became available to begin serving [his] back time on
             December 12, 2014[,] when [he] was released by
             Westmoreland County and returned to Pennsylvania
             authorities. Adding 1,341 days to December 12, 2014[,]
             yields a parole violation maximum sentence date of
             August 14, 2018.
Id., Item No. 6 at 85-86.
             For the foregoing reasons, we agree that Petitioner’s appeal is
meritless.   Accordingly, we grant Attorney Fryling’s petition to withdraw as
counsel and affirm the Board’s order denying administrative relief.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge




                                         5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Naylor,                        :
                       Petitioner      :
                                       :
                  v.                   :   No. 557 C.D. 2015
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :


                                    ORDER


           AND NOW, this 3rd day of June, 2016, Tina M. Fryling’s petition to
withdraw as counsel is hereby GRANTED and the order of the Pennsylvania
Board of Probation and Parole is AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
