Johnson v. Commonwealth

Kevin J. Johnson, Petitioner v. Commonwealth of Pennsylvania, Department of Corrections,Pennsylvania Board of Probation and Parole, Respondents

No. 707 M.D. 2012

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: October 18, 2013

November 7, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI

Northumberland County Independent Defense Counsel James L. Best, Esq. (Counsel) has filed an Application for Leave to Withdraw as Counsel from his representation of Kevin J. Johnson (Johnson) in his petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) because Johnson's claim for credit against his sentence for time spent in an in-inpatient drug facility and time spent in a county jail on a board detainer is frivolous and without merit.

Johnson, who is currently an inmate at the State Correctional Institution-Coal Township (SCI-Coal Township) was originally convicted of robbery, theft by unlawful taking and conspiracy to commit robbery and was sentenced to two to ten years' imprisonment on April 27, 2001, with his maximum release date being January 16, 2011. Johnson had previously been released on parole in 2006, 2007 and 2008, and was placed in Conewago Place (Conewago),¹ a residential drug and treatment facility, rather than returning to state prison on those occasions. On December 7, 2009, he was paroled to an approved plan, but was again detained by his parole agent on March 26, 2010. This time, he was taken to SCI-Camp Hill for violating the terms of his parole by using drugs.

While incarcerated, Johnson was arrested on April 15, 2010, for retail theft; the Board recommitted him as a technical parole violator on May 5, 2010,² and ordered that he serve out the remainder of his original sentence. Johnson pleaded guilty and was convicted on the new charges and was sentenced to nine months to two years' imprisonment, and he was paroled from those new charges on September 4, 2011, but remained incarcerated on the prior charges and violation sentence.³ The Board issued a decision on December 7, 2011, indicating that he was not eligible for reparole until June 5, 2012.

Johnson filed a pro se Petition for Administrative Review arguing that he was owed backtime credit toward his original sentence for the periods he spent at Conewago when he was recommitted as a parole violator and for the period from April 15, 2010, through January 19, 2011.⁴ Counsel was appointed and an evidentiary hearing was held, after which the hearing examiner opined that Conewago was "restrictive at most," (Evidentiary Hearing Report dated July 26, 2012, at 2), and concluded that Johnson failed to fulfill his burden of demonstrating restrictions upon his liberty sufficient to warrant a credit for backtime because he could have left the facility at any time. The Board adopted the hearing examiner's decision.

Petitioner then filed a Petition for Administrative Appeal with the Board arguing that he was entitled to credit for his time at Conewago, as well as the April 2010 through January 2011 period. The Board affirmed the determination that Johnson was not eligible for credit for his time at Conewago. It further stated that Johnson did not post bail for the new charges and pleaded guilty to those charges, for which he was sentenced to imprisonment on the same day. It, therefore, concluded that because Johnson was "incarcerated on both the new criminal charges and the Board detainer during the period of April 15, 2010 to January 19, 2011 ... credit for that time must be applied to [his] new sentence." (Letter from Board to Johnson dated November 21, 2012, at 1.) Johnson then fileda Petition for Review with this Court against both the Board and the Department of Corrections (Department) seeking mandamus relief to obtain credit for this period of time.⁵

After the record was filed, Counsel requested permission to withdraw as Johnson's counsel contending that he "has carefully considered this matter and ... believes this appeal is frivolous and that there is no basis in law or fact for the appeal." (Motion for Leave to Withdraw as Counsel dated June 21, 2013, at 1.) Counsel's petition was accompanied by a letter in support of his application to withdraw and he sent Johnson a copy of both documents to notify him of his right to retain substitute counsel or raise any issues that he might deem worthy of consideration in a pro se brief to this Court.⁶

When court-appointed counsel seeks to withdraw because he believes in the exercise of his professional judgment that the issues raised by the parolee are frivolous, he must satisfy a number of requirements: he must notify the parolee of his request to withdraw; he must provide the parolee with an Anders brief⁷ or a no-merit letter that satisfies the requirements of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);⁸ and he must advise the parolee of his right to retain new counsel or raise any new points that the parolee deems worthy of consideration by submitting a brief pro se.

Counsel in this case served Johnson with a copy of his application and no-merit letter on March 22, 2012. In the letter, he made his intention to withdraw as counsel clear and advised Johnson that he has the option of retaining other counsel or filing a pro se brief with this Court. Counsel states that the instant case is similar to Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 698 (Pa. Cmwlth. 2009), in which we held:

[f]acilities are not prison-like if they lack fences or have fences with gates that open from the inside; have doors and windows locked from the outside, not the inside, to prevent entry not exit; lack guards stationed to prevent residents from leaving; and do not attempt to use physical force by staff members to stop an inpatient from leaving.

Counsel notes that Johnson testified that he was free to leave Conewago if he wanted to, and there were no staff or door locks to prevent him from doing so.

Johnson has filed a pro se brief addressing Counsel's Motion and the reasons that he seeks credit. In opposition to the Motion to Withdraw, Johnson alleges that Counsel has not reviewed the record fully to ascertain whether he has sustainable appeal because Counsel states that he was incarcerated in Lancaster County Prison from April 15, 2010, through January 19, 2011, while the record reflects that Johnson was at both SCI-Coal Township and Lancaster County Prison during that time period. However, where Johnson was incarcerated has no bearing on the Board's decision as to whether he should receive credit for the time spent while awaiting trial. As to the merits, those matters will be necessarily addressed as part of the Motion to Withdraw and in disposing of the Department's preliminary objections.

Section 6138(a)(2) of the Prisons and Parole Code (Code) provides that a parolee who is recommitted as a convicted parole violator "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)(2). While "at liberty on parole" is not defined in the Code, our Supreme Court has held that "at liberty" does not mean freedom from all types of confinement. Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 619, 493 A.2d 680, 683 (1985). A convicted parole violator who seeks credit on his original sentence for time spent in a halfway house bears the burden of showing that the specific characteristics of the program constitute restriction of liberty sufficient to warrant credit on the original sentence. Id. Two factors are considered in determining whether a halfway house or group home is sufficiently restrictive so as to be equivalent to incarceration: (1) whether the facility is locked or secured; and (2) whether a resident is able to leave the facility without being restrained or escorted. Meleski v. Pennsylvania Board of Probation and Parole, 931 A.2d 68 (Pa. Cmwlth. 2007), appeal denied, 596 Pa. 736, 945 A.2d 173 (2008).

We agree with Counsel that Johnson failed to establish that the time he spent at Conewago was so restrictive that he was not at liberty on parole. The fact that he was free to leave the facility without anyone or anything stopping him evinces the lack of a prison-like environment making him "at liberty on parole," 61 Pa. C.S. §6138(a)(2), making him ineligible for credit for those periods of time.

Counsel also seeks to withdraw because he contends that Johnson's claim that he is entitled to credit for his incarceration period from April 15, 2010, through January 19, 2011, while he was on the Board's detainer as a suspected parole violator and did not post bail, is similarly frivolous. Counsel cites Bowman v. Board of Probation and Parole, 930 A.2d 599, 601 (Pa. Cmwlth. 2007), appeal denied, 596 Pa. 735, 945 A.2d 172 (2008), which provides that "time spent in custody pursuant to a detainer warrant shall be credited to a convicted parole violator's original term ... only when the parolee was eligible for and had satisfied bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant lodged against him." Id. at 601 (citation omitted). Bowman further provides that "once a parolee is sentenced on a new criminal offense, the period of time...