J.J. McHenry v. PA BPP
J.J. McHenry v. PA BPP - 531 C.D. 2016
Pa. Commw. Ct.Feb 14, 2017Background
- McHenry was sentenced in 2009 to 2 to 7 years for multiple offenses; original max date March 14, 2016.
- Paroled June 28, 2011 with standard parole conditions prohibiting unlawful drug/alcohol use.
- Arrested Sept. 18, 2014 on DUI-related charges; Board issued a warrant Dec. 5, 2014 and detained him.
- Board first recommitted him as a technical parole violator (six months backtime) and reparoled him pending criminal disposition; later, after McHenry’s July 22, 2015 DUI conviction, the Board rescinded reparole and recommitted him as a convicted parole violator, forfeiting street time and recalculating his max date to Aug. 22, 2019.
- McHenry administratively appealed arguing the Board improperly forfeited credited street time; Board affirmed. McHenry petitioned this Court; appointed counsel filed a Turner no-merit letter and sought to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board erred in recalculating McHenry’s maximum sentence date by forfeiting street time after convicting him of a new crime | McHenry: Board could not revoke street-time credit previously awarded when he was recommitted as a technical violator | Board: Convicted parole violators receive no credit for time at liberty on parole under 61 Pa. C.S. §6138(a)(2); prior technical-violation credit may be forfeited upon convicted recommitment | Court held Board acted correctly: convicted parole violator forfeits street time; recalculation lawful |
| Whether counsel satisfied Turner requirements to withdraw | McHenry (implicitly): claim merit exists and counsel should not withdraw | Counsel: filed a Turner no-merit letter explaining review, issues raised, and why they lack merit; notified client of right to new counsel or pro se | Court granted counsel leave to withdraw after finding Turner compliance |
Key Cases Cited
- Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596 (Pa. Cmwlth. 2011) (convicted parole violators forfeit street time, including time previously credited for good-standing parole)
- Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980) (parolee detained solely on Board warrant is entitled to credit for time served on the warrant)
- Zerby v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009) (no-merit/Turner letter requirements for counsel withdrawing in parole appeal)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (standards for counsel seeking withdrawal via no-merit letter)