           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexander Davis,                                :
                              Petitioner        :
                                                :
               v.                               :    No. 1060 C.D. 2017
                                                :    Submitted: February 2, 2018
Pennsylvania Board of                           :
Probation and Parole,                           :
                              Respondent        :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: June 4, 2018

               Petitioner Alexander Davis (Davis) petitions for review of an order of
the Pennsylvania Board of Probation and Parole (Board). The Board denied Davis’s
petition for administrative relief, in which he sought to challenge the Board’s
calculation of backtime Davis owed as a convicted parole violator. Davis’s counsel,
Richard C. Shiptoski, Esquire (Counsel), filed a petition for leave to withdraw as
counsel.1 Counsel asserts, as expressed in his Anders2 brief, that the issues Davis

       1
        After Counsel submitted his brief pursuant to Anders v. California, 386 U.S. 738 (1967),
Davis submitted a pro se brief in support of his petition for review.
       2
          In Anders, the Supreme Court of the United States held that in order for a criminal
defendant’s counsel to withdraw from representing his client in an appeal, the counsel must assert
that the case is completely frivolous, as compared to presenting an absence of merit. An appeal is
completely or “wholly” frivolous when there are no factual or legal justifications that support the
raises in his petition for review are without merit. We now grant Counsel’s petition
for leave to withdraw and affirm the order of the Board.
               In 2003, Davis was convicted of robbery and sentenced to serve a
five-to-ten year prison term with a minimum release date of March 23, 2007, and a
maximum release date of March 23, 2012. (Certified Record (C.R.) at 1.) On
March 29, 2007, the Board released Davis on parole. (Id. at 9.) In 2013, Davis was
arrested and charged with Murder of the First Degree and Murder of the Third
Degree, along with other charges. (Id. at 19.) These charges stemmed from a
February 13, 2011 incident that occurred while Davis was still under the Board’s
supervision. (Id. at 32.) After Davis’s trial on these charges, a hung jury resulted in
a mistrial. (Id. at 28.) Prior to a new trial on the same charges, Davis entered a plea
of nolo contendere to Murder in the Third Degree. (Id.) Accordingly, the Court of
Common Pleas of Philadelphia County sentenced Davis to a five-to-ten year term of
imprisonment. (Id. at 29.) Thereafter, the Board scheduled a revocation hearing.
(Id. at 37.)
               At the hearing, Davis’s appointed counsel motioned to dismiss the
proceeding because Davis’s arrest date, July 22, 2013, occurred after his maximum
parole date of March 23, 2012. (Id. at 53-54.) Therefore, Davis’s appointed counsel
argued that because Davis’s arrest occurred after Davis maxed out his sentence, the


appeal. Craig v. Pa. Bd. of Prob. and Parole, 502 A.2d 758, 761 (Pa. Cmwlth. 1985). In seeking
to withdraw, counsel must submit a petition to withdraw and a brief “referring to anything in the
record that might arguably support the appeal.” Cmwlth. v. Baker, 239 A.2d 201, 202 (Pa. 1968)
(citing Anders, 386 U.S. at 744). The Supreme Court of Pennsylvania, however, has held that in
matters that are collateral to an underlying criminal proceeding, such as parole matters, a counsel
seeking to withdraw from his representation of a client may file a “no-merit” letter that includes
information describing the extent and nature of the counsel’s review, listing the issues the client
wants to raise, and informing the court of the reasons why counsel believes the issues have no
merit. Cmwlth. v. Turner, 544 A.2d 927, 928-29 (Pa. 1988).

                                                2
Board did not have the authority to recommit Davis. (Id.) The hearing examiner
denied the motion. (Id. at 54.)
               By notice mailed on May 5, 2016, the Board recommitted Davis as a
convicted parole violator to serve the remainder of his unexpired term, resulting
in 4 years, 11 months, and 23 days of backtime. (Id. at 61.) The Board calculated
Davis’s new maximum sentence date as March 20, 2021. (Id.)
               Thereafter, Davis filed a petition for administrative relief with the
Board. (Id. at 66.) In the petition, Davis argued that the Board had no authority to
recommit Davis as a convicted parole violator. (Id. at 68.) Specifically, Davis
argued that because his maximum sentence date preceded the date of his arrest, the
Board lacked jurisdiction over Davis. (Id. at 67.) Accordingly, Davis alleged
constitutional violations. The Board denied Davis’s petition for administrative relief
and affirmed its decision. (Id. at 71-72.) In so doing, the Board explained:
               The Board recalculated your maximum sentence date to
               March 20, 2021 based on your recommitment as a
               convicted parole violator. The decision to recommit you
               as a convicted parole violator gave the Board statutory
               authority to recalculate your sentence to reflect that you be
               given no credit for the period you were at liberty on parole.
               The Board advised you of this potential penalty on the
               parole conditions you signed on March 29, 2007. You also
               had constructive notice of this potential penalty via the
               statute. In your correspondence, you allege the Board did
               not have jurisdiction to recommit you as a convicted
               parole violator because you were not arrested until
               July 22, 2013[,] which occurred after your maximum
               expiration date of March 23, 2012. According to the
               Prisons and Parole Code [(Code)],[3] the Board has the
               authority to recommit a parolee who, during the period of
               parole commits a crime punishable by imprisonment and
               is further found guilty by a judge, jury or pleads guilty or

      3
          61 Pa. C.S. §§ 101-6309.

                                            3
             nolo contendere in a court of record. In this case, the crime
             in question occurred on February 13, 2011, before your
             maximum expiration dated [sic] of March 23, 2012, to
             which you entered a plea of no contest on
             January 11, 2016. Additionally, the ability to challenge
             the recalculation decision after it is imposed satisfies your
             due process rights. Therefore, the Board’s recalculation
             of your maximum sentence date did not violate any
             constitutional provisions, including double jeopardy.
             Finally, the Board properly recalculated your max date.
             You were released on parole on March 29, 2007 with a
             maximum expiration date of March 23, 2012. This means
             you had 1821 days left to serve on your sentence at the
             time you were paroled. Again, the Board’s decision to
             recommit you as a convicted parole violator authorized the
             Board to recalculate your sentence to reflect that you
             receive no credit for the period you were at liberty on
             parole. The offense of which you were convicted prohibits
             the Board from awarding you credit for time at liberty on
             parole, leaving you with 1821 days remaining on your
             original sentence.

(Id. (internal citations omitted).) Davis then filed the instant petition for review with
this Court, arguing that (1) the Board no longer had jurisdiction over Davis after the
expiration of his maximum sentence date, (2) the Board improperly imposed
backtime that exceeded Davis’s remaining sentence, (3) the Board erred in
recalculating his maximum sentence date without adequate explanation, and (4) the
Board did not have the authority to extend his maximum sentence date.
             We begin by addressing Counsel’s request to withdraw from his
representation of Davis. When no constitutional right to counsel is involved in a
probation and parole case, an attorney seeking to withdraw from representing a
prisoner may file a no-merit letter, as compared to an Anders brief. In Hughes v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this



                                           4
Court held that a constitutional right to counsel in a probation and parole matter
arises only when the prisoner’s case includes:
               [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, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).
The record in this matter contains no suggestion by Davis that he did not commit the
crimes for which he received a new criminal conviction, nor does Davis suggest any
reasons to justify or mitigate the parole violation—i.e., his new criminal conviction.
Thus, Davis has only a statutory right to counsel under Section 6(a)(10) of the Public
Defender Act.4 This case, therefore, is one in which a no-merit letter would have
satisfied Counsel’s responsibilities in seeking to withdraw from his representation
of Davis.
               When an attorney files an Anders brief “when a no-merit letter would
suffice, the Anders brief must at least contain the same information that is required
to be included in a no-merit letter.” Seilhamer v. Pa. Bd. of Prob. and Parole,
996 A.2d 40, 42-43 (Pa. Cmwlth. 2010).                In order to satisfy the procedural
requirements associated with no-merit letters, counsel must: (1) notify the parolee
that he has submitted to the Court a request to withdraw; (2) provide the parolee with
a copy of counsel’s no-merit letter; and (3) advise the parolee that he has the right to
obtain new counsel or to submit to the Court a brief of his own raising any arguments



      4
          Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).


                                               5
that he may believe are meritorious.5 Reavis v. Pa. Bd. of Prob. and Parole,
909 A.2d 28, 33 (Pa. Cmwlth. 2006). In seeking to withdraw, an attorney must
include the following descriptive information in the no-merit letter: (1) the nature
and extent of counsel’s review of the case; (2) the issues the parolee wants to raise;
and (3) the analysis counsel used in reaching his conclusion that the issues are
meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009).
               Counsel’s Anders brief includes a thorough recitation of the pertinent
factual and procedural history of the case, identifies the issues raised in the petition
for review, discusses the key factual elements that are pertinent to the issues, and
applies the holding of relevant decisions of this Court to the facts. Thus, we conclude
that Counsel’s Anders brief demonstrates adequate compliance with the
requirements for a no-merit letter, and we may proceed to consider whether Counsel
is correct in asserting that Davis’s appeal has no merit. As previously mentioned,
the issues Davis sought to raise on review are that (1) the Board no longer had
jurisdiction over Davis after the expiration of his maximum sentence date, (2) the
Board       improperly    imposed      backtime      that    exceeded      Davis’s     remaining
sentence, (3) the Board erred in recalculating his maximum sentence date without
adequate explanation, and (4) the Board did not have the authority to extend his
maximum sentence date.
               In addressing Davis’s first issue, we begin by noting that it is
well-settled that the Board has jurisdiction to recommit a parolee after his maximum
sentence date for crimes committed while he was still on parole, even if he was not


        5
          Counsel served Davis with his petition for leave to withdraw and his Anders brief. By
order dated November 29, 2017, this Court explained that Davis could obtain substitute counsel to
file a brief in support of his petition for review or file a brief on his own behalf. Counsel served
Davis with this Court’s order. Counsel has, therefore, complied with these requirements.

                                                 6
charged with and convicted of those crimes until after his maximum sentence
expired.   61 Pa. C.S. § 6138(a)(1); Adams v. Pa. Bd. of Prob. and Parole,
885 A.2d 1121, 1124 (Pa. Cmwlth. 2005), appeal denied, 902 A.2d 1242 (Pa. 2006).
Section 6138(a)(1) of the Code, 61 Pa. C.S. § 6138(a)(1), permits the Board to
recommit as a convicted parole violator any parolee
            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 . . . .

(Emphasis added.) The critical issue is not when the parolee was charged with the
crime or convicted of a crime, or when parole was revoked and the parolee was
recommitted, but whether he committed the crime for which he was ultimately
convicted before his parole ended. Adams, 885 A.2d at 1124. Here, the crime to
which Davis pleaded nolo contendere occurred on February 13, 2011, approximately
thirteen months prior to the March 23, 2012 expiration of his maximum sentence
date. Because the crimes to which Davis pleaded nolo contendere occurred prior to
the expiration of his maximum sentence date, the fact that the Board determined to
recommit him when it did is irrelevant, as the Board had the jurisdiction to do so.
See id. Accordingly, Davis’s argument is without merit.
            We now turn to Davis’s next issue on appeal, wherein he argues that
the Board improperly imposed backtime that exceeded Davis’s remaining sentence.
Davis argues that the Board may not impose backtime that exceeds the remaining
balance of a parolee’s term.         Section 6138(a)(5) of the Code, 61 Pa.
C.S. § 6138(a)(5), provides that convicted parole violators who are paroled from a
state correctional institution and subsequently receive a new sentence to be served
in a state correctional institution must serve the original sentence first.   This

                                          7
provision takes effect when the parolee is recommitted as a convicted parole
violator. Here, the Board granted Davis parole on March 29, 2007, with a maximum
sentence date of March 23, 2012. (C.R. at 7.) At that time, the difference between
Davis’s original release date (March 29, 2007) and his maximum sentence date
(March 23, 2012) totaled 4 years, 11 months, and 23 days. Due to Davis’s new
charges, the Board voted to recommit Davis on March 25, 2016. (Id. at 47.) When
the Board recommitted Davis, it ordered him to serve that unexpired term.
(Id. at 61.) Adding the previously unserved 4 years, 11 months, and 23 days to the
date in which the Board voted to recommit Davis yields a new maximum sentence
date of March 20, 2021. The Board, therefore, did not impose backtime in excess of
Davis’s maximum sentence date. Rather, the Board ordered Davis to serve the
remainder of his original term for which he had been released on parole, as required
by 61 Pa. C.S. § 6138(a)(5). Accordingly, Davis’s argument on this issue is also
meritless.6
               Davis next argues that the Board erred in recalculating his maximum
sentence date without adequate explanation. In so arguing, Davis does not specify
any deficiencies with the Board’s explanation aside from merely stating that it was
inadequate. The Board, in recalculating Davis’s maximum sentence date, explained
in its correspondence to Davis that it released him on parole on March 29, 2007.
(Id. at 71.)    As Davis’s maximum sentence date was March 23, 2012, Davis
had 1,821 days (4 years, 11 months, and 23 days) left to serve on his sentence at the
time the Board paroled him. (Id.) The Board further explained that its decision to
recommit Davis as a convicted parole violator authorized the Board to recalculate

       6
         We also note that, as pointed out by Counsel, Davis failed to raise this issue at his
revocation hearing or in his administrative appeal. Accordingly, this issue is waived. See Chesson
v. Pa. Bd. of Prob. and Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012).

                                                8
his sentence to reflect that Davis receive no credit for the period in which Davis was
at liberty on parole. (Id.) The Board has the express authority to do so, as
Section 6138(a)(2) of the Code, 61 Pa. C.S. § 6138(a)(2), provides that parolees
“shall be given no credit for the time at liberty on parole” in such a situation. The
Board voted to recommit Davis on March 25, 2016, and added his unserved 1,821
days to that date, thus rendering a new maximum sentence date of March 20, 2021.
(Id. at 47, 61.)   As the Board explained this all to Davis, we determine the
explanation to be adequate.
              Davis’s final argument is that the Board did not have the authority to
extend his maximum sentence date. Specifically, Davis argues that imposing and
extending sentences is exclusively a judicial function in which the Board may not
partake.   Davis’s argument has been repeatedly rejected by our Courts.            As
previously mentioned, the Board revoked any credit Davis had amassed while on
liberty from parole due to his status as a convicted parole violator. 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 (Pa. 1980), the
Supreme Court stated that “when the Board refuses to credit a convicted parole
violator with time spent free on parole there is neither a usurpation of the judicial
function of sentencing nor a denial of the procedural safeguards to which persons
are entitled.” Gaito, 412 A.2d at 570. Here, just as in Young and Gaito, the Board
did not engage in a judicial function when it recommitted Davis as a convicted parole
violator to serve his maximum sentence, thereby forfeiting his time at liberty on
parole.


                                          9
                Based on the foregoing, we agree with Counsel that Davis’s petition for
review lacks merit, and, therefore, we grant Counsel’s petition for leave to withdraw
as counsel. Moreover, because we have concluded that Davis’s appeal lacks merit,7
we affirm the order of the Board denying his administrative appeal.




                                                 P. KEVIN BROBSON, Judge




      7
          In reaching this conclusion, the Court considered the pro se brief filed by Davis.

                                                 10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexander Davis,                       :
                        Petitioner     :
                                       :
           v.                          :   No. 1060 C.D. 2017
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                        Respondent     :


                                     ORDER


           AND NOW, this 4th day of June, 2018, the petition for leave to
withdraw as counsel filed by Richard C. Shiptoski, Esquire, is hereby GRANTED,
and the order of the Pennsylvania Board of Probation and Parole (Board) is
AFFIRMED.




                                       P. KEVIN BROBSON, Judge
