T. Johnson v. PBPP

           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tobias Johnson,                                :
                      Petitioner               :
                                               :
              v.                               :
                                               :
Pennsylvania Board of                          :
Probation and Parole,                          :   No. 1702 C.D. 2019
                  Respondent                   :   Submitted: August 21, 2020


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                            FILED: October 27, 2020

               Tobias Johnson (Johnson) petitions for review from a decision of the
Pennsylvania Board of Probation and Parole (Board)1 denying his request for
administrative relief.      Johnson is represented by Susan Ritz Harper, 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 application to
withdraw and affirm the order of the Board.
              On May 27, 2014, the Board released Johnson on parole after he served
time at a state correctional institution (SCI) on his original sentence of two years


       1
        Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa.C.S. §§ 6101, 6111(a).
three months to six years of incarceration resulting from his conviction for the
manufacture, sale, delivery, or possession with intent to manufacture or deliver a
controlled substance. Certified Record (C.R.) at 1-2 & 7. When released, Johnson
had an original maximum sentence date of February 21, 2018.

Id. at 7.

              On December 21, 2017, the Board detained Johnson after his arrest on
new drug charges and bail was set at $25,000.

Id. at 28-30.

The Board scheduled a
detention hearing and, on January 16, 2018, a public defender entered her
appearance on Johnson’s behalf.

Id. at 39-41.

Johnson’s counsel requested a
continuance of the hearing to await the outcome of the criminal preliminary hearing,
and the continuance was granted.2

Id. at 42.

On February 21, 2018, the Board
cancelled its detainer against Johnson because his maximum sentence date on his
initial drug conviction had lapsed.

Id. at 43.

On March 6, 2018, Johnson posted bail
on his new drug charges.

Id. at 47.

The Board issued an administrative action on
May 17, 2018, declaring Johnson delinquent for control purposes effective
December 20, 2017.

Id. at 48.

              On October 22, 2018, the Board detained Johnson upon his guilty plea
to one count of manufacture, delivery, or possession with intent to manufacture or
deliver a controlled substance. C.R. at 50, 60. On January 16, 2019, the Court of
Common Pleas of Allegheny County (trial court) sentenced Johnson to 4 months 15
days to 9 months of incarceration plus 3 years of probation for his new drug
conviction.

Id. at 52-53.

Johnson subsequently waived his right to counsel and to a
revocation hearing and admitted to his new criminal conviction.

Id. at 54-55.

On
March 22, 2019, the Board notified Johnson of its decision to recommit him to an


      Johnson’s counsel, at the time, specifically noted on the request for continuation that his
       2

maximum sentence date was February 21, 2018 (i.e., soon). Certified Record (C.R.) at 42.

                                               2
SCI as a convicted parole violator (CPV) to serve 24 months’ backtime 3 “when
available, pending receipt of additional information,” and informed him that his
maximum sentence date was subject to change.

Id. at 89-90.

By order dated April
2, 2019, the trial court paroled Johnson from county jail.

Id. at 92.

               On April 16, 2019, the Board notified Johnson that it decided, in its
discretion, not to award him credit for the time he spent at liberty on parole (i.e., his
“street time”)4 because he received a “new conviction same/similar to [his] original
offense.”    C.R. at 95-96.        The Board’s decision further noted that Johnson’s
recalculated maximum sentence date was June 18, 2022.

Id. at 95.

Subsequently,
the Board notified Johnson that it had to modify its April 16, 2019 decision “due to
technician error,” and that his maximum sentence date was actually October 3,
2022.5

Id. at 99-100.

               On May 13, 2019, Johnson filed a request for administrative relief
contending that the Board erred when it recalculated his maximum sentence date



       3
        Backtime is “[t]he unserved part of a prison sentence which a convict would have been
compelled to serve if the convict had not been paroled.” 37 Pa. Code § 61.1.
       4
         We note that “street time” is a term commonly used for the period of time a parolee spends
in good standing while at liberty on parole. Penjuke v. Pa. Bd. of Prob. & Parole, 

203 A.3d 401

,
403 (Pa. Cmwlth. 2019), appeal denied, 

228 A.3d 254

(Pa. 2020).
       5
          In its modified order to recommit dated April 22, 2019, the Board explained that when
Johnson was paroled on May 27, 2014, he had 1366 days remaining on his original sentence
(original maximum sentence date of February 21, 2018 - May 27, 2014 = 1366 days). C.R. at 97.
The Board gave Johnson backtime credit of 86 days from October 22, 2018 (the date he pleaded
guilty to the new crime), to January 16, 2019 (the date of his sentencing on the new crime), as he
remained incarcerated during that time solely on the Board’s detainer.

Id. Therefore, Johnson owed

1280 days of backtime on his original sentence (1366 days – 86 days = 1280 days).

Id. The Board’s custody

for return date was April 2, 2019 (the day Johnson was released from the new
sentence), and adding 1280 days to this date yielded a new maximum sentence date of October 3,
2022.

Id. 3

because he was entitled to “credit for street time.”

Id. at 101-02.

On May 31, 2019,
the Board denied Johnson’s request for relief and explained:

                    First, the Board recalculated your maximum
             sentence date to October 3, 2022, based on your
             recommitment as a [CPV]. The decision to recommit you
             as a [CPV] gave the Board statutory authority to
             recalculate your sentence to reflect that you received no
             credit for the period you were at liberty on parole. . . .

                    Next, the decision on whether to grant or deny a
             [CPV] credit for time at liberty on parole is purely a matter
             of discretion. The Prisons and Parole Code authorizes the
             Board to grant or deny credit for time at liberty on parole
             for certain criminal offenses. . . .

                    [T]he Board must articulate the basis for its decision
             to grant or deny a [CPV] credit for time spent at liberty on
             parole. On April 16, 2019[,] you were mailed a [B]oard
             decision articulating that the reason you were denied credit
             for your street time was because your new conviction was
             the same/similar to the original offense. This is sufficient
             reason for denying credit for time spent at liberty on
             parole. . . . Therefore, the Board did not abuse its
             discretion by failing to award you credit for the time spent
             at liberty on parole.

C.R. at 104-05 (citations omitted).
             It appears from the record that Johnson did not timely appeal the
Board’s May 31, 2019 decision to this Court. See generally C.R. Rather, on June
27, 2019, Johnson submitted another administrative remedies form purporting to
challenge the Board’s decision to deny him credit for the time he spent at liberty on
parole.

Id. at 107.

This second administrative remedies form specifically indicated
that it was challenging the Board’s May 31, 2019 decision.

Id. 4

               On November 4, 2019, the Board sent correspondence to Johnson
indicating it was resending its October 7, 2019 decision, which had been returned to
the Board as “undeliverable,” due to using Johnson’s parole number rather than his
Department of Corrections number. C.R. at 109. Given its address error, the Board
informed Johnson that he could consider November 4, 2019 as “the official mailing
date if [he chose] to appeal the enclosed, October 7, 2019, decision by filing an
appellate petition for review” with this Court.

Id. Notably, the Board’s

October 7,
2019 decision explained that Johnson’s June 27, 2019 request for administrative
relief was dismissed as an unauthorized second or subsequent request, and stated
that the Board had already addressed Johnson’s claims in its May 31, 2019 decision.

Id. at 110.

On December 3, 2019, Johnson petitioned this Court for review.6
               By order dated January 8, 2020, we granted Johnson’s application to
proceed in forma pauperis and appointed the Public Defender of Fayette County to
represent him. Cmwlth. Ct. Order dated 1/8/20. After conducting her review of the
matter, on May 5, 2020, Counsel filed an Application for Leave to Withdraw
Appearance (Application), indicating that she filed “contemporaneously” a no-merit
letter7 and that the letter had been served on Johnson. Application ¶ 9. Counsel

       6
         Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed or constitutional rights have been violated. Fisher v. Pa. Bd. of Prob. &
Parole, 

62 A.3d 1073

, 1075 n.1 (Pa. Cmwlth. 2013); see also Section 704 of the Administrative
Agency Law, 2 Pa.C.S. § 704.
       7
          Counsel seeking to withdraw may file an “Anders Brief” or a no-merit letter. See Anders
v. California, 

386 U.S. 738

(1967); Commonwealth v. Turner, 

544 A.2d 927

, 928 (Pa. 1988). 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 as herein, this Court only requires a no-merit letter explaining why the claim
is meritless to support counsel’s motion to withdraw.

Id. at 25-26.

The standard applied in this
case is whether Johnson’s claims are without merit.

Id. at 26

n.4.
                                                 5
represented that she has conducted a “full and conscientious examination of the
[certified] record” and “has concluded that there is no factual or legal basis for . . .
Johnson’s appeal.”

Id. ¶ 5.

             When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if she satisfies the following
requirements: (i) she must notify the petitioner of the request to withdraw; (ii) she
must furnish the petitioner with a copy of a no-merit letter; and (iii) she 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); 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
counsel’s review; (ii) each issue the petitioner wished to have raised; and (iii)
counsel’s explanation as to why those issues are meritless. Commonwealth v.
Turner, 

544 A.2d 927

, 928 (Pa. 1988); 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 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 May
12, 2020, Counsel served Johnson with a copy of the Application and the no-merit
letter by First-Class Mail as evidenced by the proof of service submitted to this
Court. See Application Exhibit A, Proof of Service dated 5/12/20. In the no-merit
letter, Counsel advised Johnson of his “right to retain substitute counsel,” and of his
“right to raise any points that [he] may deem worthy of merit in a pro se brief” filed
with this Court. Application Exhibit A, No-Merit Letter at 2 (emphasis added). On


                                           6
May 26, 2020, the Court issued an order giving Johnson 30 days to obtain substitute
counsel, at his own expense, or to file a brief on his own behalf in light of Counsel’s
request to withdraw. Cmwlth. Ct. Order dated 5/26/20. On June 19, 2020, Counsel
filed a proof of service stating that she served Johnson with a copy of the May 26,
2020 Order by First-Class Mail. Proof of Service filed 6/19/20. Upon review of the
substance of the no-merit letter, Counsel analyzed Johnson’s issues and explained
why each lacks merit, citing law to support her conclusion. We now independently
review the merits of Johnson’s claims.8
                First, we note that it is difficult to decipher exactly which decision of
the Board Johnson is attempting to appeal as his petition references several
determinations, and Johnson attaches numerous documents from the Board to his
petition. However, Johnson did not file his petition with this Court until December
3, 2019, meaning that his appeal would only be timely from the Board’s October 7,
2019 decision dismissing his second request for administrative relief as
unauthorized, and would not be timely from the Board’s May 31, 2019 decision
denying him credit for time spent at liberty on parole. See Pa.R.A.P. 1512(a)(1)
(petition for review shall be filed within 30 days after entry of the order). As
indicated above, the Board resent its October 7, 2019 decision (dismissing Johnson’s
second request for administrative relief) to Johnson with an official mailing date, for
appeal purposes, of November 4, 2019. C.R. at 109-10. The Board’s regulations
specifically provide that “[s]econd or subsequent petitions for administrative review
. . . will not be received.” 37 Pa. Code § 73.1(b)(3). Accordingly, Johnson’s petition
for review of the October 7, 2019 decision lacks merit.



      8
          Johnson did not obtain new counsel or file a brief on his own behalf.

                                                 7
             Even if Johnson had timely appealed the Board’s May 31, 2019
decision to deny him credit against his maximum sentence for the time he spent at
liberty on parole, we would come to the same conclusion. Section 6138(a)(1)-(2) of
the Prisons and Parole Code provides that if the Board orders a parolee to be
recommitted as a CPV, “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” and “shall be given no credit for the time at liberty on parole.” 61 Pa.C.S.
§ 6138(a)(1)-(2). However, the Board may, in its discretion, award credit to a CPV
for time spent at liberty on parole, unless the offender is convicted of certain violent
offenses not applicable in this case. 61 Pa.C.S. § 6138(a)(2.1).
             Here, the Board decided not to award Johnson credit for time spent at
liberty on parole, providing the following explanation: “new conviction
same/similar to original offense.” C.R. at 95. This is a sufficient reason for denying
Johnson credit for street time. See Pittman v. Pa. Bd. of Prob. & Parole, 

159 A.3d 466

, 474-75 n.12 (Pa. 2017) (providing that the Board must articulate the basis for
its decision to grant or deny a CPV credit for time spent at liberty on parole and even
a single-sentence explanation is likely sufficient in most instances); Barnes v. Pa.
Bd. of Prob. & Parole, 

203 A.3d 382

, 391 (Pa. Cmwlth. 2019) (holding that Board’s
decision stating credit for time spent at liberty on parole was denied because new
conviction was the “same/similar to the original offense” and parole resulted in an
“early failure” after only eight months provided sufficient reason pursuant to
Pittman); Williams v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1243 C.D. 2018,
filed Aug. 21, 2019), slip. op. at 6, 

2019 WL 3943982

(holding that “new conviction
same/similar to original offense” is a sufficient reason for denying street time
pursuant to Pittman where the facts of record support the reason showing that the


                                           8
Board performed an individual assessment rather than simply restating facts).9 Here,
Johnson was initially convicted of the manufacture, sale, delivery, or possession with
intent to manufacture or deliver a controlled substance. C.R. at 1-2. While on
parole, Johnson was arrested and subsequently pleaded guilty to the same crime,
both violations of Section 13(a)(30) of The Controlled Substance, Drug, Device and
Cosmetic Act, 35 P.S. § 780-113(a)(30). C.R. at 1-2, 60. The Board’s reason reflects
the record in this case and shows that it performed an assessment of the facts
surrounding Johnson’s parole revocation. Therefore, Johnson’s argument that the
Board erred by refusing to grant him credit for street time when recalculating his
maximum sentence date lacks merit.
              Accordingly, we grant Counsel’s Application and affirm the Board’s
October 7, 2019 order.


                                          __________________________________
                                          CHRISTINE FIZZANO CANNON, Judge




       9
        Pursuant to Section 414(a) of the Commonwealth Court Internal Operating Procedures,
210 Pa. Code § 69.414(a), an unreported opinion of this Court may be cited for its persuasive
value.

                                             9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tobias Johnson,                        :
                  Petitioner           :
                                       :
            v.                         :
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :   No. 1702 C.D. 2019
                  Respondent           :


                                   ORDER


            AND NOW, this 27th day of October, 2020, the Application for Leave
to Withdraw Appearance filed by Susan Ritz Harper, Esquire, is GRANTED, and
the October 7, 2019 order of the Pennsylvania Board of Probation and Parole, with
mailing date November 4, 2019, is AFFIRMED.



                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
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