*1 (1) thе sues, explained that: and Claimant because, supervision special needed
client wheelchair, was in
when the client around and was able to move
client was others; towards
aggressive supervision before not need such
client did for work at 7:00 a.m. arrived
Claimant bed, in a the client was
because (N.T. 8.) Inasmuch as the
wheelchair. supervision when he required special
client require and did not in a wheelchair bed, supervision when he was
special go he could reasonably believed
Claimant a.m., the client kitchen at 8:00 while
to the bed, to breakfast for the client.3 get
was in majority, I would
Accordingly, like
reverse. Clayton HUGHES, Petitioner
Connel BOARD
PENNSYLVANIA AND
OF PROBATION
PAROLE, Respondent. Pennsylvania. Court of 6,May on Briefs 2009.
Submitted
Decided June 2009. day of the rather than the client's cir- I also submit to the extent the work hours ignores requiring special cumstances, rule the reasons for the work is unreasonable. rule client, focusing solely on supervision of a *2 Watkins, Clam, peti-
Kent D. Saint for tioner. Thomas,
Arthur R. and Asst. Counsel Madden, Counsel, S. Victoria Chief Harris- burg, respondent. for LEADBETTER, BEFORE: Prеsident McGINLEY, Judge, Judge, and and PELLEGRINI, Judge, and COHN JUBELIRER, SIMPSON, Judge, and LEAVITT, Judge, Judge, BUTLER, Judge. Judge
OPINION BY COHN JUBELIRER. Application
Before this Court is the for (Applica- Leave to Withdraw as Counsel tion) (Counsel) of Kent D. Watkins Clayton Connel Hughes (Hughes). Hughes filed a Petition (Petition) for Review of the determinations of the Board of Probation (Board) revoking Hughes’ pa- and Parole role and recalculating his sentence. August On Hughes was sen- following tenced to the five concurrent (1) years sentences: “six to five months deliver”; possession ... for with intent to (2) years eight possession two to for (3) deliver; years intent to one to two for (4) crime; possession of an instrument of year pos- six months to one for unlawful (5) drug paraphernalia; session of (Letter days possession marijuana. Clerk, alleged: Office of Chief that his maximum date from Counsel to calculated; correctly Commonwealth Court there had Letter) 2008) (No-Merit (October 6, at 1- not been a detention on the feder- *3 2.) 22, 1999, the Board issued an July On al charges prior of which he was convicted paroling Hughes ordеr as of November to his recommitment as a parole convicted 1999. violator, but on his state charges, (3) dismissed; which were and that the 4, 2000, the Board issued
On December hearing recommitment wherein he was de- declaring Hughes delinquent an order to a parole termined be convicted violator February of November 2000. On held until 10 months after his 2001, the Board issued an order recommit- was, guilty plea federal court and there- Hughes parole as a technical violator ting fore, untimely. Hughes brоadly also al- to serve 12 months of backtime for two leged ineffective assistance of counsel and per- the without “leaving counts of district process rights. denial of his due mission,” report,” two counts of “failure to comply and one count of “failure to with all 14, 2008, April On the Board issued (Board Order, 28, 2001, R. at laws.” Feb. modifying prior new order order of 11.) 17, 2002, On December the Board 31, 2008, January and recalculated recommitting Hughes issued an order as a Hughes’ August maximum date to be parole convictеd violator to serve 24 13, 2008, 2014. May On mailed backtime, available, months of when based response to Hughes’ Request for Admin- using on his conviction on two counts of “a Review, stating istrative that argu- his facility communication to distribute crack regarding ments defects in the Board’s (Board Order, 17, 2002, cocaine.” Dec. R. Hughes recommitment of aas convicted 12.) untimely, violator were and that 24, 2005, February On the Board re- such claims could not be revived Hughes, ceived a letter from which the subsequent Board’s recаlculation orders. petition Board construed as a for adminis- Regarding Hughes’ arguments as to the review, inquiring trative on the status of defects the Board’s recalculation order Hughes’ parole requesting and 31, 2008, January mailed the Board stated By from the Board. letter mailed March arguments that these were rendered moot 15, 2005, responded the Board that be- by the Board’s recalculation Hughes serving cause was still a federal April decision issued 2008. sentence he was not considered аvailable 12, 2008, On June Hughes, represented and, therefore, to serve his backtime Counsel, Hughes’ filed Petition in this yet Board had not recalculated his maxi- (1) arguing that: the Board’s order mum date. April improperly issued revoked 81, 2008, By January order issued Hughes’ parole; the Board failed to Board, referring to its December give Hughes solely credit for time served order recommitting Hughes as a technical warrant; under the Board’s and convicted violator to serve timely Board failed to hold a revocation backtime, months of recalculated hearing. 2, May maximum date as July February Hughes On On the Board fried a Mo- mailed to Application tion to Limit the Issue and Request the Board a for Administrative (Motion Limit). Stay In the Motion to challenging January Review the Board’s Limit, request, Hughes requested 2008 order. In this the Board that this Court designed protect indigent appeal to Re- crimi- “limit the issue on whether nal to effective correctly [Hughes’] defendant’s assistance spondent dismissed Sixth of a of counsel undеr the Amendment of pro se combined petition for admin- United States Constitution and to en- revocation decision separate attorney distinct sure istrative review of client, argue against re- is not untimely order as with forced recalculation presents reviewing court in- spect revocation and as but to the decision determining formation aid it in respect to the recalculation or- that will moot with *4 1.) (Motion By Limit at order whether the defendant’s is frivo- der.” Anders, 744-45, at granted this Court the lous. 386 U.S. 87 S.Ct. July dated 8, 2008, 1396. On October Motion to Limit. Application with this
Counsel filed his
applied
This Court first
in
McClendon
Court,
his No-Merit Letter.
along with
petition
the context of a
for
from a
review
determination of the Board
Scott v. Ja
addressing
merits of
Before
the
cobs,
100,
76
463
Pa.Cmwlth.
A.2d 110
we
review the
Application,
Counsel’s
first
(1983), but
so without much explana-
did
steps
appointed
represent peti
counsel
Pennsylvania
tion.
In
v.
Craig
Board of
seeking review of determinations of
tioners
586,
Probation &
93 Pa.Cmwlth.
the
take to
from
Bоard must
withdraw
(1985),
explained
758
representation.
ap
The
for an
standards
applying
rationale
the An-
plication
from representation
to withdraw
requirements
to counsel
ders/McClendon
in an
a decision
appeal from
of the
seeking
representation
to withdraw from
grew
of the standards for withdrawal
out
petitioners seeking
of
review of
rev-
from
col
appointed counsel
direct and
determinations, stating
ocation
doing
appeals
lateral
of criminal сonvictions. In
indigent peti-
so balanced the interest of
terpreting
began
a line of cases which
tioners in effective assistance of counsel
the
Supreme
deci
United States
Court’s
against
duty
attorneys
press
the
788,
California,
sion in Anders v.
386 U.S.
cases, recognized
frivolous
in case law and
1396,
(1967),
the
S.Ct.
with a
revocation
Morrissey
aware of the
decision but only
held that
Supreme
United States
Pomeroy
Eagen
Justices
noted that
requires “appoint-
the Sixth Amendment
cast a
Morrissey
grave doubt on the
... at
indigent
ment of counsel for an
continuing validity
resting
parol-
every
of a criminal
stage
proceeding where
Mempa Rhay.
ee’s
to counsel on
rights
substantial
criminal accused
Pomeroy,
Justice
concurring opin-
may
affected.” Id. at
be
S.Ct.
ion,
holding giv-
noted that the Tinson
Tinson,
ing parolees
an absolute
to counsel
(a)
re-
public
The
defender shall be
by
parole
lation of a maximum date
legal
sponsible
furnishing
parole
to a
revocation.
board
cases,
following types
any per-
of
Turner,
who,
funds,
v.
518 Pa.
for lack of sufficient
is
son
491,
(1988),
Supreme
adopted
stringent
Court
less
appointed
standard for the withdrawal of
proceed-
Probation and
counsel from cases in which the
ings
thereof.
and revocation
from the
counsel does not derive
United
Coades,
9960.6(a)(10);
§
Constitution,
16 P.S.
480 A.2d
ap-
as collateral
States
such
that,
Supreme
States
1305. The United
The
held
rather than an
peals.
Court
brief,
regarding
may
Gagnon,
provide
stated
Anders
counsel
instead
letter2
na-
a “no-merit”
which details “the
parolees
of
to counsel:
"
1144,
(referring to such a letter as a
‘no merit’
1. Act of December
P.L.
amended,
9960.6(a)(10).
§
noting
16 P.S.
letter” and
that such a letter is also
letter,”
commonly
“Finley
referred to as a
2. Such letters are referred to
vаrious
Superior
referring
Court case Common
See,
names
courts of this Commonwealth.
313,
Finley,
Pa.Super.
479 A.2d
wealth v.
Porter,
e.g., Commonwealth v.
Shanon,
(1984)); Zerby v.
A.2d
& n.
728 A.2d
893 & n.
Parole, 707
Probation and
A.2d
attorney’s] review Board
extent of [the
ture and
of
(Pa.Cmwlth.1998),
petitioner wished
each issue the
1215-16
and list[s]
raised,
explanation
with counsel’s
letter
to have
held that a no-merit
must
meritless,” at
are
those issues
why
of
substantively
petition-
each of the
address
its own
must conduct
point
which
the court
baldly
arguments,
stating
rather than
er’s
the claim is meritless.
review of whether
merit.
that the claims are without
This Court
Board
there is a consti
In a case where
355, 356
this
614 A.2d
Cmwlth.
seeking
tutional
with-
that counsel
Court held
peti
of a
to withdraw
with the technical re-
comply
draw must
tioner in an
of a determinatiоn
Craig before this
quirements of Turner or
the Board should file an Anders brief.
independently assess the merits
Court will
a:
petitioner
arises where the
raises
In Hill v.
This
of the case.
letter”);
("Turner
(Pa.Cmwlth.2009)
the stan-
While the Court often describes
frivolous, we have
Blackwell,
as whether the case is
dard
A.2d
locate
case in which this
not been able to
("Tumer/Finley let-
(Pa.Super.Ct.2007)
permission to withdraw on
Court has denied
ter”).
refer to such
opinion,
In
we shall
this
case, although
petitioner's
the basis that
meritless,
as no-merit letters.
letters
not frivolous.
above,
(i)
under
Tur
not com-
As discussed
claim that he has
colorable
standard,
letter must detail
ner
Counsel’s
of the condi-
alleged
mitted the
violation
re
[Counsel’s]
“the nature and extent
(ii)
liberty;
he is at
or
upon
tions
which
view and
each issue
list[ ]
if
is a matter of
even
the violation
raised, with counsel’s ex
wished to have
uncontested,
there
public record or is
why
issues are merit-
planation of
those
justified
which
are substantial reasons
Turner,
Pa.
less.”
make rev-
mitigated
or
the violation and
Here,
No-Merit Letter
at 928.
Counsel’s
and that the rea-
inappropriate,
ocation
case,
history of the
procedural
out the
sets
are
or otherwise difficult
sons
in
review of the record
reflecting Counsel’s
develop
present.
this matter. While Counsel’s No-Merit
January 2008 recalculation order order ex- by subsequent moot rendered Judge DISSENTING OPINION BY date three tending his maximum McGINLEY. months. Jefferson majority’s I dissent to the respectfully 513, 514 of (Pa.Cmwlth.1998). provide failed to conclusion Counsel It is true that subse- for that the concluding substantial reasons Hughes’ Request Administra- quent order January recalculation January 2008 recal- tive Review of the moot order rendered order, issued a second culation the Board Hughes’s maximum date which extended However, the second recalculation order. *9 by three months. stated in his Counsel approximately three months order added letter, “Additionally, although addition, Hughes’ maximum date. to the recalculated maximum sentence was cite, May either in its the Board did timely, decision mailed 2008 denial of 14, 2008, a new calculation. Limit, April presented au- appeal its Motion 28, 2008, Therefore, February his adminis- thority support argument as moot. Pe- trative was dismissed was rendered moot January 2008 order April Similarly, [Hughes] appealed titioner never 2008 order. April Letter Counsel, recalculation order.” although he addressed the moot- Watkins, from Kent D. October Pennsylvania, COMMONWEALTH calculation of the maxi- 4. Once the new By Attorney Acting General Thomas Board, mum announced date was CORBETT, W. Jr. Hughes’s this new calculation rendered January recalcu- challenge to the Wesley SNYDER, Sydney Snyder, Alvin lation order moot. Counsel was terse Jacqueline Hepford-Rennie, Julie Ann explanation but he did set forth Musser, Hunt, Louise Kenneth Susan reason the for administrative relief Roger Bennetch, Cheryl Bennetch and grant petition I would was moot. Alyssha Mary Waid affirm on the merits. Appeal of: Kenneth Bennetch. Pennsylvania, Commonwealth of LEADBETTER Judge President Attorney Acting by General Judge join in this dissent. LEAVITT Corbett, Thоmas Jr. W. Wesley Snyder, Sydney Snyder, Alvin Jacqueline Hepford-Rennie, Julie Ann Musser, Hunt, Louise Kenneth Susan Roger Bennetch, Cheryl Ann Ben netch, Amy Styer Mary Lou and Alicia Waid Appeal of: Julie Ann Musser. Pennsylvania, Commonwealth of by Attorney Acting General Corbett, Thomas W. Jr. Wesley Snyder, Sydney Snyder, Alvin Jacquelyn Hepford-Rennie, Julie Ann Musser, Hunt, Louise Kenneth Susan Roger Bennetch, Cheryl Ann Ben netch, Amy Styer, Lou and Alicia Mary Waid Appeal Jacquelyne Hepford-Rennie. of: Pennsylvania, Commonwealth of by Attorney Acting General Corbett, Thomas W. Jr. Wesley Snyder, Sydney Snyder, Alvin Jacqueline Hepford-Rennie, Julie Ann Musser, Hunt, Susan Louise Kenneth Bennetch, Cheryl Roger Ann Ben netch, Amy Styer, Lou and Alicia Mary Waid
