        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Antwan M. Cooke,                         :
                         Petitioner      :
                                         :
            v.                           :   No. 1248 C.D. 2017
                                         :   Submitted: March 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 Antwan Cooke (Cooke) petitions for review of an order of
the Pennsylvania Board of Probation and Parole (Board). The Board denied Cooke’s
petition for administrative relief, in which he sought to challenge the Board’s
recalculation of Cooke’s maximum sentence date. Cooke’s counsel, James L. Best,
Esquire (Counsel), filed a motion to withdraw as counsel. Counsel asserts, as
expressed in his “no-merit” letter, that the issues Cooke raises in his petition for
review are without merit. We deny Counsel’s motion, but we will provide Counsel
with an opportunity to submit an amended request for leave to withdraw.
            Cooke had been incarcerated at a State Correctional Institution when
the Board granted him parole on April 26, 2012. (Certified Record (C.R.) at 7.) At
the time of his parole, Cooke had a maximum sentence date of April 12, 2020. (Id.)
On December 8, 2014, Steelton Borough Police arrested Cooke and charged him
with aggravated assault. (Id. at 58.) The Board detained Cooke as an alleged parole
violator. (Id. at 11.) Cooke later pleaded guilty to simple assault. (Id. at 51.)
               Because of Cooke’s guilty plea and subsequent conviction, the Board
charged Cooke as a convicted parole violator. (Id. at 63.) Cooke waived his right
to a revocation hearing. (Id.) By decision with a mailing date of April 13, 2016, the
Board forfeited Cooke’s street time and recommitted him as a convicted parole
violator to serve 9 months backtime. (Id. at 68-69.) Further, the Board recalculated
Cooke’s maximum sentence date to February 11, 2023. (Id.)
               Cooke filed an administrative appeal from the Board’s decision.
(Id. at 77-79.)     In his administrative appeal, Cooke challenged the Board’s
revocation of his street time in recalculating his new maximum sentence date. (Id.)
In so doing, Cooke argued that (1) the Board does not have the authority to alter his
judicially-imposed sentence, and (2) the Board’s action violated the Double
Jeopardy Clause of the United States Constitution.1 (Id.) The Board rejected
Cooke’s administrative appeal, reasoning:
               The Board has the authority to establish a parole violation
               maximum date in cases of convicted parole violators. See
               Armbruster v. Pa. Bd. of Prob. and Parole,
               919 A.2d 348 (Pa. Cmwlth. 2007). Because you were a
               convicted parole violator, you are not entitled to receive
               credit for any periods you were at liberty on parole.
               61 Pa. C.S. § 6138(a)(2).




       1
         The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
provides, in relevant part: “nor shall any person be subject for the same offen[s]e to be twice put
in jeopardy of life or limb[.]” U.S. Const. amend V.

                                                2
(Id. at 80.) Cooke then filed a petition for review in this Court, maintaining the same
arguments raised in his administrative appeal.
               We begin by addressing Counsel’s request to withdraw from his
representation of Cooke. 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.2 In Hughes v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this
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 (1973)). The
record in this matter contains no suggestion by Cooke that he did not commit the
crime for which he received a new criminal conviction, nor does Cooke suggest any
reasons constituting justification or mitigation for his new criminal conviction.


       2
          In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court 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 appeal. Craig v. Pa. Bd. of Prob. and Parole, 502 A.2d 758, 761
(Pa. Cmwlth. 1985). In Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), however, our
Supreme Court 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.

                                                 3
Thus, Cooke only has a statutory right to counsel under Section 6(a)(10) of the
Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended,
16 P.S. § 9960.6(a)(10).
               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 and to submit
to the Court a brief of his own, raising any arguments that he may believe are
meritorious.3      Reavis v. Pa. Bd. of Prob. and Parole, 909 A.2d 28, 33
(Pa. Cmwlth. 2006). In seeking to withdraw, this Court has consistently required an
attorney to include the following descriptive information in a 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).
               Consequently, before making an independent review of the merits of
the appeal to determine whether Cooke’s appeal has no merit, we must first evaluate
Counsel’s no-merit letter to determine whether it complies with the requirements for
withdrawal applications. Counsel’s brief includes a summary of Cooke’s parole and
conviction history, reflecting an understanding of the certified record. In presenting
the issues Cooke seeks to raise on appeal, Counsel’s letter provides:
               [Cooke] then filed a Petition for Review on
               August 31, 2017[,] and an Amended Petition [on]
               September 8, 2017. As this Honorable Court noted in its
               January 4, 2017 Memorandum Opinion, Mr. Cooke
               admits he violated parole but challenges the legality of the
       3
        Counsel served Cooke with his motion for leave to withdraw and his brief. In a letter
addressed to Cooke, Counsel advised Cooke of his right to retain counsel and to file a brief on his
own behalf. Thus, Counsel has complied with these requirements.

                                                4
               revocation for the following reasons: (1) that the Board
               does not have the authority to alter his judicially-imposed
               sentence beyond his original maximum term; (2) that the
               Board “unilaterally breached” Mr. Cooke’s “contract”
               with the Court of Common Pleas of Bucks County, as his
               initial sentence was entered into pursuant to a plea
               agreement; and (3) that his sentence was increased in
               violation of the Cruel and [U]nusual Punishment and
               Double Jeopardy Clauses of the United States and
               Pennsylvania Constitutions.

(No-Merit Letter, filed January 2, 2018 (emphasis added).) Counsel’s no-merit letter
adequately discusses the key factual elements that are pertinent to issue
number 1 and the portion of issue number 3 pertaining to the Double Jeopardy
Clause and applies the holding of relevant decisions of this Court to the facts. Thus,
we conclude that Counsel’s no-merit letter demonstrates adequate compliance as to
those issues, and we may proceed to consider whether Counsel is correct in asserting
that Cooke’s appeal has no merit as to those issues.
               Counsel’s no-merit letter, however, provides no discussion or
elaboration whatsoever regarding issue number 2—that the Board unilaterally
breached Cooke’s contract with the Court of Common Pleas of Bucks County—or
the portion of issue number 3 pertaining to the Cruel and Unusual Punishment
Clause of the Eighth Amendment to the United States Constitution.4 Both of these
issues were identified by Counsel in his no-merit letter as additional potential issues
on appeal. With the absence of any substantive discussion on the law governing
these issues, it is unlikely that Counsel’s no-merit letter would aid Cooke in




      4
          U.S. Const. amend. VIII.


                                           5
understanding why Counsel believes that Cooke’s claim is meritless.                          Thus,
Counsel’s no-merit letter is deficient as to these issues.5
               Accordingly, we deny Counsel’s motion for leave to withdraw as
counsel, but we will provide Counsel with an opportunity to submit an amended
request for leave to withdraw.




                                                 P. KEVIN BROBSON, Judge




       5
         Counsel references a January 4, 2017 opinion of this Court when he states that Cooke
admitted to violating the terms of his parole but challenged the legality of the revocation on three
bases. The opinion to which Counsel refers, however, does not exist. With respect to Cooke, this
Court has issued no such opinion or order to that effect. Just as with the previously-discussed
deficiency, Counsel’s reference to a seemingly nonexistent opinion provides little aid in
understanding the merits (or lack thereof) of Cooke’s appeal. We impress upon Counsel that this
Court vigorously reviews requests for leave to withdraw as counsel and does not grant such
requests unless it is clear that Counsel has performed a sufficient review of the matter, understood
the matter assigned to him, and filed an appropriate and thorough no-merit letter.

                                                 6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Antwan M. Cooke,                          :
                           Petitioner     :
                                          :
             v.                           :   No. 1248 C.D. 2017
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :
                           Respondent     :



                                        ORDER


             AND NOW, this 4th day of June, 2018, the motion to withdraw as
counsel, filed by James L. Best, Esquire (Counsel), is DENIED. Counsel shall
submit either an amended no-merit letter or a brief on the merits of the petition for
review filed by Petitioner Antwan Cooke within thirty days of the date of this order.
If Counsel submits an amended no-merit letter, the Court will again address that
request along with the merits of the petition for review. If Counsel submits a brief
on the merits, Respondent may submit a brief within thirty days of the date Counsel
files and serves a brief on the merits.




                                          P. KEVIN BROBSON, Judge
