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

196 A.3d 667

Johnnie X. STROUD, Petitioner

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent

No. 1241 C.D. 2017

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 20, 2018

Decided October 22, 2018

Johnnie X. Stroud, pro se.

Morgan Davis, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE COVEY

Johnnie X. Stroud (Stroud) petitions this Court for review of the Pennsylvania Board of Probation and Parole's (Board) August 8, 2017 order denying his request for administrative relief. Stroud is represented in this matter by Northumberland County Public Defender James L. Best, Esquire (Counsel), who has filed a Motion for Leave to Withdraw as Counsel (Motion) and submitted an amended no-merit letter in support thereof. After review, we grant Counsel's Motion and affirm the Board's order.

Stroud is an inmate at the State Correctional Institution (SCI) at Coal Township. On March 6, 2011, Stroud was reparoled from his 4½ to 15-year sentence for robbery, manslaughter and probation violations (Original Sentence). See Certified Record (C.R.) at 1-3, 40-45. At that time, his maximum sentence release date was August 7, 2015. As a condition of his reparole, Stroud consented to the following special condition:

If you are convicted of a crime committed while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were serving when paroled/reparoled, with no credit for time at liberty on parole.

C.R. at 44. Stroud did not object to the above-quoted parole condition.

On February 9, 2012, Stroud was arrested and charged by the United States Marshals Service for manufacturing counterfeit currency, possession of counterfeit currency with intent to defraud, and dealing in counterfeit currency (Federal Charges). See C.R. at 48; see also Supplemental Certified Record (S.C.R.) at 9A-15A. Stroud was held in a federal detention center. See C.R. at 48. On February 23, 2012, the Board issued a warrant to commit and detain Stroud. See C.R. at 47. Stroud did not post bail and remained in federal custody. See C.R. at 48. On March 8, 2012, Stroud pled guilty to the Federal Charges. See S.C.R. at 9A. On July 10, 2012, Stroud was sentenced to serve 41 months in federal prison. See C.R. at 51; see also S.C.R. at 10A.

On August 15, 2012, the Board issued a warrant for Stroud's arrest as a convicted parole violator (CPV), which declared: "It is hereby ordered that [Stroud] be retaken and returned forthwith to the actual custody within the Pennsylvania enclosure, and we hereby require an officer of the [Board], to so retain and return [Stroud] ...." C.R. at 46. The warrant further represented: "Although [Stroud's] original maximum sentence [release date] was [August 7, 2015], the maximum sentence is being extended due to a new conviction. The new maximum sentence will be computed upon recording of the Board's final action. [Stroud] owes approximately 4 years, 5 months and 1 day." C.R. at 46. Stroud remained in federal custody until he was returned to Pennsylvania's Department of Corrections on October 28, 2016. See C.R. at 51, 65; see also S.C.R. at 9A-10A.

On November 9, 2016, the Board issued to Stroud a notice of charges based upon his federal conviction and a hearing date. See S.C.R. at 16A. On November 14, 2016, Stroud signed a Waiver of Revocation Hearing and Counsel/Admission Form (Form), thereby admitting he committed and was convicted of the Federal Charges while on parole, and waiving his right to a parole revocation hearing "[w]ith full knowledge and understanding" of his rights. S.C.R. at 19A. The Form reflects Stroud's understanding that his admission could be withdrawn within 10 calendar days, and he did not withdraw it. See S.C.R. at 19A; see also Board Br. at 7-8.

On December 21, 2016, the second Board member voted to accept Stroud's admissions and recommit him as a CPV. See C.R. at 53-60.

By February 17, 2017 decision (mailed March 8, 2017), the Board recommitted Stroud "as a [CPV] to serve 24 months backtime," without credit for time spent at liberty on parole, making his new maximum sentence release date November 13, 2020. C.R. at 61; see also C.R. at 53-60. On March 17, 2017, Stroud filed an Administrative Remedies Form with the Board, claiming the Board erred by allowing him to serve his federal sentence before serving his recommitment backtime. See C.R. at 66-69. On June 12, 2017, Stroud requested the status of his appeal and stated that he was "challenging the [ ] decision of the Board [ ] recalculating [his] maximum date and the (24) months back[time] and the revocation of [his] street time[.]" C.R. at 70; see also C.R. at 71. By decision mailed August 8, 2017, the Board denied Stroud's appeal. See C.R. at 73. Stroud timely appealed from the Board's decision to this Court, which ordered the Northumberland County Public Defender to defend him.¹

On February 26, 2018,² Counsel filed a withdrawal motion and a no-merit letter. On March 1, 2018, this Court denied Counsel's withdrawal motion based on Counsel's failure to properly address Stroud's issues and directed Counsel to file either an amended motion and no-merit letter that adequately addressed Stroud's legal issues, or to submit a brief on the merits. On March 5, 2018, Counsel filed the Motion and an amended no-merit letter.³ On July 13, 2018, this Court ordered Counsel's Motion to be considered along with the merits of Stroud's appeal.

This Court has held that in order to withdraw, "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 , 518 Pa. 491, 544 A.2d 927, 928 (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.

In reviewing Counsel's no-merit letter herein, this Court notes that the letter contains the procedural history of Stroud's case, as well as Counsel's review of the record and relevant statutes and case law. Counsel served Stroud with a copy of the no-merit letter and his Motion, and notified Stroud that he may either obtain substitute counsel or file a brief on his own behalf.⁴ Counsel further stated therein that Stroud is challenging whether "[Section 6138(a)(5.1) of the Prisons and Parole Code⁵ (Parole Code) ] require[s] that the Board credit a [CPV] for time served in federal prison on a new conviction if the Board did not require the [CPV] to serve his state term first[.]"⁶ Counsel No-Merit Letter at 2. In his no-merit letter to this Court, Counsel provides sufficient reasons why Stroud's issues are without merit. Accordingly, this Court concludes that Counsel complied with Turner's technical requirements and will now independently review the merits of Stroud's appeal to determine whether to grant or deny Counsel's Motion.

Initially, Section 6138(a) of the Parole Code provides, in relevant part:

(1) A parolee under the jurisdiction of the [B]oard released from a correctional facility 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 [B]oard be recommitted as a parole violator.

....

(5) If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed by a Pennsylvania court shall precede the commencement of the new term imposed in the following cases:

(i) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution.

(ii) If a person is paroled from a county prison and the new sentence imposed upon him is to be served in the same county prison.

(iii) In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed.

(5.1) If the parolee is sentenced to serve a new term of total confinement by a [f]ederal court or by a court of another jurisdiction because of a verdict or plea under paragraph (1), the parolee shall serve the balance of the original term before serving the new term.

61 Pa. C.S. § 6138(a).⁷

Stroud first contends that since Section 6138(a)(5.1) of the Parole Code required him to serve his Original Sentence before his federal sentence, the Board should have removed him from federal custody and returned him to Pennsylvania for his revocation hearing and service of his Original Sentence.

Section 71.4(1)(i) of the Board's Regulations specifies that "[i]f a parolee is confined outside the jurisdiction of the Department of Corrections, such as ... confinement in a [f]ederal correctional institution ..., a revocation hearing shall be held within 120 days of the official verification of the return of the...