Flannery v. Commonwealth

Joseph Flannery, Petitioner v. Commonwealth of Pennsylvaniaand Pennsylvania Probation and Parole Board, Respondents

No. 470 C.D. 2019

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: November 15, 2019

February 7, 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY

Joseph Flannery (Flannery) petitions this Court for review of the Pennsylvania Board of Probation and Parole's (Board) March 6, 2019 order denying his request for administrative relief from the Board's August 15, 2017 order (mailed August 25, 2017) recommitting him (Recommitment Order) as a convicted parole violator (CPV). Flannery is represented in this matter by Schuylkill County Public Defender Kent D. Watkins, Esquire (Counsel), who has filed an Application to Withdraw as Counsel (Application) and submitted a no-merit letter in support thereof. After review, we grant Counsel's Application and affirm the Board's order.

Flannery is an inmate at the State Correctional Institution (SCI) at Mahanoy. On August 26, 2015, Flannery was paroled to a county detainer from his 3- to 10-year sentence for the charge of person not to possess, use firearms. (Original Sentence). See Certified Record (C.R.) at 1, 7. Flannery's Original Sentence maximum release date was February 27, 2022. Flannery's parole release date was September 20, 2015. See C.R. at 7.

On June 17, 2016, Flannery was arrested in Montgomery County for two counts of possession of a firearm, two counts of possession of a controlled substance by a person not registered, and use or possession of drug paraphernalia. On the same date, the Board issued a warrant to commit and detain Flannery. On June 30, 2016, Flannery waived representation of counsel and a detention hearing.

By Board decision recorded July 25, 2016 (July 25, 2016 Board Decision) and notice thereof issued on August 24, 2016, the Board detained Flannery pending disposition of the criminal charges. See C.R. at 32. On October 3, 2016, Flannery filed an administrative remedies form challenging the July 25, 2016 Board Decision. On December 8, 2016, Flannery filed a Petition for Administrative Appeal with the Board requesting that he be placed at liberty on parole during the pendency of the criminal proceedings (December 2016 Administrative Petition). On February 9, 2017, the Board issued a decision to continue to detain Flannery pending disposition of the criminal charges.

On June 6, 2017, following a jury trial, Flannery was found not guilty of possessing a firearm, but was found guilty of one count of possessing a controlled substance by a person not registered.¹ Flannery was sentenced to time served (365 days) to 23 months.

On August 15, 2017, the Board issued the Recommitment Order² directing that Flannery be recommitted as a CPV to serve 9 months of backtime forthe controlled substance conviction. The Recommitment Order advised Flannery that the Board, in its discretion, did not award him credit for time he spent at liberty on parole because he was "STILL USING DRUGS [AND] NOT ADJUSTING WELL TO PAROLE." C.R. at 70. The Recommitment Order stated:

IF YOU WISH TO APPEAL THIS DECISION, YOU MUST FILE A REQUEST FOR ADMINISTRATIVE RELIEF WITH THE BOARD WITHIN THIRTY (30) DAYS OF THE MAILING DATE OF THIS DECISION. THIS REQUEST SHALL SET FORTH SPECIFICALLY THE FACTUAL AND LEGAL BASES FOR THE ALLEGATIONS. YOU HAVE THE RIGHT TO AN ATTORNEY IN THIS APPEAL AND IN ANY SUBSEQUENT APPEAL TO THE COMMONWEALTH COURT.

C.R. at 71.

On January 17, 2019, the Board received Flannery's Administrative Appeal and Petition for Review (January 2019 Administrative Petition) in an envelope postmarked January 15, 2019.³ Therein, Flannery raised substantive and constitutional challenges to the Board's Recommitment Order.

On February 1, 2019, Flannery filed in this Court a "Petition for Writ of Mandamus for a Court Order Compelling the [] Board to Answer the Appeal and Re[-]parole [Flannery]" (February 2019 Petition).⁴ In the February 2019 Petition, Flannery alleged that he had filed administrative appeals from the Recommitment Order and that the Board had not ruled upon them. Specifically, Flannery averred, inter alia:

Thereafter, [Flannery] receiv[ed] the Board's decision, [Flannery] [filed] a Petition with the Board [] for, Administrative Appeal [(First Administrative Appeal)], . . . and within that [First] Administrative Appeal Flannery raised well (est)ablished law of: (1). That he had 'no' technical parole violations, (2). [T]hat he was gainfully employed full-time, and (3). [T]hat the 'alleged' criminalinfraction was based on pure conjuncture and speculation from a 'CONFIDENTIAL INFORMANT', in which [sic] happened to be a 'close relative', in which this relative would and did name anyone to get himself [ou]t of trouble.⁵

As this respected Court is aware [] there 'HAS' to be a [time-]stamped copy afforded to [Flannery] of that [First] Administrative Appeal, to [date] the Board of Parole 'HAS' 'denied' such to [Flannery], let alone an answer/reply to that appeal.

February 2019 Petition at 6, ¶ 14.

On March 6, 2019, the Board dismissed the January 2019 Administrative Petition, explaining:

[The January 2019 Administrative Petition] was received on January 17, 2019, in an envelope that was postmarked on January 15, 2019. The Board decision that established your parole violation maximum date was mailed to you on August 25, 2017. [Section 73.1(b)(1) of t]he Board's [R]egulations provide that a petition for administrative review must be received at the Board's Central Office within 30 days of the mailing date of the Board's determination. 37 Pa. Code. § 73.1(b)(1). Accordingly, the petition for administrative review is DISMISSED as untimely.

C.R. at 98. By March 11, 2019 order, this Court dismissed the February 2019 Petition on the basis that "[the Board] issued a decision mailed March 6, 2019 disposing of [Flannery's] request for administrative review, [Flannery] may file atimely appellate jurisdiction petition for review from that decision within 30 days from the exit date of this order." March 11, 2019 Order, No. 60 M.D. 2019.

On April 3, 2019, Flannery filed a petition for review with this Court (April 2019 Petition).⁶ On July 26, 2019, Counsel filed the Application and a no-merit letter. On July 30, 2019, this Court ordered Counsel's Application to be considered along with the merits of Flannery's appeal. On August 21, 2019, this Court granted Flannery's petition for an extension of time to file his brief. Notwithstanding, Flannery did not file a brief with this Court.

This Court has held that in order to withdraw from representation,

'counsel . . . must provide a 'no-merit' letter which details 'the nature and extent of [counsel's] review and list[s] each issue the petitioner wished to have raised, with counsel's explanation of why those issues are meritless.' ' Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (quoting Commonwealth v. Turner, . . . 544 A.2d 927, 928 ([Pa.] 1988)). '[C]ounsel must fully comply with the procedures outlined in Turner to ensure that each of the petitioner's claims has been considered and that counsel has [ ] substantive reason[s] for concluding that those claims are meritless.' Hont v. Pa. Bd. of Prob. & Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996). Counsel is also required to 'notify the parolee of his request to withdraw, furnish the parolee with [ ] a copy of . . . [the] no-merit letter satisfying the requirements of Turner, and inform the parolee of his right to retain new counsel or submit a brief on his own behalf.' Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006). This Court must then 'conduct its own independent review of the petition to withdraw and must concur in counsel's assessment before [it] may grant counsel leave to withdraw.' Hont, 680 A.2d at 48.

Stroud v. Pa. Bd. of Prob. & Parole, 196 A.3d 667, 670 (Pa. Cmwlth. 2018).

This Court observes that Counsel's no-merit letter contains the procedural history of Flannery's case, as well as Counsel's review of the record and relevant statutes and case law. Counsel served Flannery with a copy of the no-merit letter and his Application, and notified Flannery that he may either obtain substitute counsel or file a brief on his own behalf.⁷ Counsel represented therein that the sole issue before this Court is whether the Board properly dismissed Flannery's appeal as untimely. In his no-merit letter to this Court, Counsel provides sufficient reasons why Flannery's appeal is without merit. Accordingly, this Court concludes that Counsel complied with Turner's technical requirements and will now independently review the merits of Flannery's appeal to determine whether to grant or deny Counsel's Application.

According to the February 2019 Petition, Flannery contends in his April 2019 Petition that, at some point following the Recommitment Order, he filed his First Administrative Appeal with the Board, but the Board never issued a decision thereon. Although Flannery does not identify the date he allegedly filed the First Administrative Appeal with the Board, he asserts that the First Administrative Appeal "sat unanswered for [near]ly (2)-years[.]" April 2019 Petition at 3. Notwithstanding, other than the January 2019 Administrative Petition, the certified record does not contain an administrative appeal from the Recommitment Order.⁸

Flannery filed the January 2019 Administrative Petition (described by Flannery as a second administrative appeal) with the Board on January 15, 2019. OnMarch 6, 2019, the Board dismissed the January 2019 Administrative Petition as untimely.

Section 73.1(b) of the Board's Regulations provides, in pertinent part:

(1) A parolee, by counsel unless unrepresented, may petition for administrative review under this subsection of determinations relating to revocation decisions which are not otherwise appealable under subs

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