Miskovitch v. Pa. Bd. of Prob. & Parole

77 A.3d 66

Eric Michael MISKOVITCH, Petitioner

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 3, 2013.

Decided Sept. 6, 2013.

Eric M. Miskovitch, pro se.

Chad L. Allensworth, Assistant Counsel, Harrisburg, for respondent.

BEFORE: McGINLEY, Judge, and SIMPSON, Judge, and JAMES GARDNER COLINS, Senior Judge.

OPINION BY Senior Judge JAMES GARDNER COLINS.

Before this Court are (i) the petition of Eric Michael Miskovitch for review of the February 28, 2012 determination of the Pennsylvania Board of Probation and Parole (Board), which denied his administrative appeal of a Board order that recommitted him as a convicted parole violator to serve backtime; and (ii) the petition of Timothy Peter Wile, Esquire, Assistant Public Defender for Montgomery County (Counsel), for leave to withdraw as Miskovitch's attorney. Concluding that the issues raised in Miskovitch's appeal are meritless, we affirm the Board's determination and grant Counsel's petition for leave to withdraw.

On February 20, 2001, Miskovitch was released on parole from aggregated sentences with the original minimum and maximum dates of July 31, 2000 and August 28, 2008, respectively. (Record Item (R. Item) 2, Board Decision 12/20/00, Certified Record (C.R.) at 8–11; R. Item 2, Release Order 12/20/00, C.R. at 12–13.)

On August 5, 2004, Miskovitch was arrested by the Tarentum Police Department following a string of criminal acts he committed in Allegheny and Westmoreland Counties over the course of the preceding weeks. (R. Item 3, Board Decision 9/4/04, C.R. at 23.) On September 18, 2009, Miskovitch was found guilty of robbery and receiving stolen property following a trial in one of the cases related to his 2004 crime spree, and, on December 14, 2009, he was sentenced to a 5 to 10 year term of incarceration. Commonwealth v. Miskovitch, 64 A.3d 672, 676 (Pa.Super.2013). A number of the other cases relating to Miskovitch's 2004 crime spree were consolidated in the Court of Common Pleas of Allegheny County, and, on April 27, 2010, Miskovitch pleaded guilty but mentally ill to various offenses.¹See18 Pa.C.S. § 314. On May 10, 2010, Miskovitch was sentenced on these charges to a 2 year and 6 month to 5 year term of imprisonment and new terms of probation. (R. Item 6, Disposition Docket Entries, C.R. at 49–50, 81, 106, 139–40, 173, 203, 244, 270, 295, 320, 351–52, 387, 417, 446, 472, 500).

On April 14, 2010, the Board issued a decision relating to his September 18, 2009 conviction after trial, which recommitted Miskovitch as a technical parole violator to serve 9 months backtime and as a convicted parole violator to serve 48 months backtime. (R. Item 12, Board Decision 12/5/11, C.R. at 692.) The Board held a hearing on October 20, 2011 concerning the April 27, 2010 guilty but mentally ill pleas, and on December 5, 2011 issued a decision recommitting Miskovitch as a convicted parole violator to serve 21 months backtime for his April 27, 2010 convictions, which was to be served concurrently with the 48 months backtime from the April 14, 2010 decision. (R. Item 11, Hearing Transcript 10/20/11 (H.T.), C.R. at 547; R. Item 12, C.R. at 692.) The Board set Miskovitch's parole violation maximum date as September 24, 2015. (R. Item 12, C.R. at 692.) In the instant Petition for Review, Miskovitch challenges the Board's February 28, 2012 denial of Miskovitch's administrative appeal of the Board's December 5, 2011 decision.

When evaluating a petition for leave to withdraw as appointed counsel for a parolee challenging a revocation decision, our first task is to determine whether counsel satisfied the following procedural requirements: (i) he must notify the inmate of his request to withdraw; (ii) he must furnish the inmate with a copy of a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), or a no-merit letter; and (iii) he must advise the inmate of his right to retain new counsel or raise any new points he might deem worthy of consideration by submitting a brief on his own behalf. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22 (Pa.Cmwlth.2009) ( en banc ); Wesley v. Pennsylvania Board of Probation and Parole, 150 Pa.Cmwlth. 54, 614 A.2d 355, 356 (1992).

Here, Miskovitch has only a statutory, rather than a constitutional, right to counsel, and Counsel is only required to submit a no-merit letter in support of a petition to withdraw.²Hughes, 977 A.2d at 24–25. A no-merit letter must set forth: (i) the nature and extent of counsel's review of the case; (ii) each issue that the inmate wishes to raise on appeal; and (iii) counsel's explanation of why each of those issues is meritless. Commonwealth v. Turner, 518 Pa. 491, 494–95, 544 A.2d 927, 928 (1988); Hughes, 977 A.2d at 26. The principal distinction between a no-merit letter and an Anders brief is the standard of review applied to the issues on appeal: lack of merit in a no-merit letter and the slightly more rigorous frivolousness standard in an Anders brief, which requires “a determination that the appeal lacks any basis in law or fact.” Smith v. Pennsylvania Board of Probation and Parole, 524 Pa. 500, 507, 574 A.2d 558, 562 (1990) (quoting McCoy v. Court of Appeals, 486 U.S. 429, 438 n. 10, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988)). We will not deny a motion to withdraw in cases where a no-merit letter is sufficient but counsel has instead chosen to submit an Anders brief; we will instead judge the case by the lack of merit standard inherent in a no-merit letter. Hughes, 977 A.2d at 26 n. 4.

Counsel has satisfied the procedural requirements for withdrawal. Counsel sent Miskovitch a letter on September 5, 2012, attached as Exhibit A to the Petition for Leave of Court to Withdraw as Appellate Counsel, informing Miskovitch of his determination that there were no non-frivolous issues in the appeal and that Miskovitch could retain an attorney or submit his own brief, which Miskovitch has done. The Anders brief adequately summarizes the procedural history and relevant facts, discusses all of the issues raised by Miskovitch in the Petition for Review and explains his determination that any appeal of the Board's decision is frivolous. Specifically, Counsel addresses four arguments: (i) that the Board did not have jurisdiction to recommit Miskovitch after the expiration of his original term maximum expiration; (ii) that recommitment was not authorized for offenses to which Miskovitch pleaded guilty but mentally ill; (iii) that the recommitment for the new convictions was not supported by substantial evidence; and (iv) that the Board erred in re-computing Miskovitch's maximum term date by failing to take into account time spent on electronic home monitoring.³ Counsel addressed each of these arguments with citations to the relevant case law and a full and complete explanation supporting his conclusion that the arguments were without merit.

Because Counsel has satisfied the procedural requirements for withdrawal, we independently evaluate the proceedings before the Board to determine whether the appeal is meritless.⁴Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423, 426 (Pa.Cmwlth.1996); Frankhouser v. Pennsylvania Board of Probation and Parole, 143 Pa.Cmwlth. 80, 598 A.2d 607, 608–09 (1991). We first deal with the sole issue that Miskovitch raised in his pro se brief: whether a guilty but mentally ill plea can support a recommitment order.⁵

Section 6138(a)(1) of the Prisons and Parole Code authorizes 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, may at the discretion of the board be recommitted as a parole violator.

61 Pa.C.S. § 6138(a)(1). Miskovitch argues that the omission in Section 6138(a)(1) of a guilty but mentally ill plea—while guilty verdicts, guilty pleas and nolo contendere pleas are specifically mentioned—indicates that the General Assembly viewed guilty but mentally ill parolees as a distinct class and intentionally excluded guilty but mentally ill pleas as grounds for a Board recommitment order.

A criminal defendant may be found “guilty but mentally ill” where “the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.” 18 Pa.C.S. § 314(a). At trial, a guilty but mentally ill charge arises only as an alternative for the jury when a defendant seeks to raise an insanity defense. Id.; Commonwealth v. Sohmer, 519 Pa. 200, 212, 546 A.2d 601, 607 (1988). A defendant may enter a plea of guilty but mentally ill, but:

[n]o plea of guilty but mentally ill may be accepted by the trial judge until he has examined all reports prepared pursuant to the Rules of Criminal Procedure, has held a hearing on the sole issue of the defendant's mental illness at which either party may present evidence and is satisfied that the defendant was mentally ill at the time of the offense to which the plea is entered.

18 Pa.C.S. § 314(b).

An individual who is “mentally ill” is defined as “[o]ne who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.” 18 Pa.C.S. § 314(c)(1). The “mentally ill” standard is distinct from the higher standard of “legal insanity” derived from the common law M'Naghten test,⁶ which a defendant must establish in order to prevail on an insanity defense. 18 Pa.C.S. § 314(c)(2), (d).

The “guilt” of “guilty but mentally ill” is the same as that of a traditional guilty verdict or plea. The guilty but mentally ill statute has “no...