Commonwealth Court Cases - Commonwealth Court Case Law from PA - Pennsylvania Commonwealth Court

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Lee,

:

Petitioner

:

:
v.

:

:
Pennsylvania Board of
:
Probation and Parole,

: No. 1295 C.D. 2004

Respondent : Submitted: December 30, 2004
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE
DAN
PELLEGRINI, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McGINLEY

FILED: February 3, 2005

Before us is Kent D. Watkins's (Attorney Watkins) petition to
withdraw as counsel for Edward Lee (Lee) on Lee's petition for review from an
order of the Pennsylvania Board of Probation and Parole (Board) which
recommitted Lee as a convicted parole violator.

Lee was effectively sentenced1 on August 5, 1989, to a term of five to
ten years for delivery of cocaine and for violation of The Controlled Substance,
Drug, Device and Cosmetic Act.2 On September 23, 1994, Lee was paroled. On

1
As a result of this conviction and other conduct, the Board recommitted Lee to
serve fifteen months backtime as a convicted and technical parole violator when available on a
1979 sentence of two one-half to ten years for robbery, burglary, and theft of moveable property.
On May 21, 1990, Lee was paroled to a detainer sentence. Lee's parole violation maximum date
was recomputed to be June 29, 1994, on the 1979 sentence. His parole violation maximum date
was again corrected on April 22, 1994, to be February 29, 1994. By order dated May 10, 1994,
Lee was released to a detainer sentence.
2
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101--780-144.

January 23, 1995, the Board declared Lee delinquent effective December 21, 1994.
On September 26, 1995, the Board recommitted Lee to serve fifteen months
backtime for multiple technical violations and established his new maximum date
as January 27, 2000.

On November 5, 1996, Lee was reparoled to an approved plan. On
October 7, 1997, the Board declared Lee delinquent effective September 23, 1997.
On February 24, 1998, the Board recommitted Lee to serve twelve months
backtime as a technical parole violator and established his maximum date as March
12, 2000.

On January 7, 1999, Lee was reparoled. On May 4, 1999, the Board
issued an order to detain Lee pending disposition of criminal charges. The Board
action noted that Lee was arrested on March 10, 1999, by the Norristown Police
Department. In a decision recorded May 10, 2000, and mailed May 17, 2000, the
Board recommitted Lee to serve twenty-eight months backtime, when available, as
a convicted parole violator because of Lee's conviction for the federal offense of a
"felon in possession of a firearm."

On May 13, 2004, Lee3 filed a notice of intent to file judicial action
with the Board and alleged that the Board failed to respond to his letter of March
31, 2004.4

3
At the time, Lee was incarcerated in a federal prison.
4
The letter is not part of the record.
2

The Board treated the notice of intent to file judicial action as an
administrative appeal and dismissed it as untimely:
This determination answers what is being construed as an
administrative appeal referencing a letter by you of
March 31, 2004, that apparently objected to a revocation
decision mailed May 17, 2000.
In the absence of an allegation that the administrative
appeal was placed in the housing unit collection box
within 30 days of the mailing date of the revocation
decision mailed May 17, 2000, because the
administrative appeal was not postmarked or received
within 30 days of the mailing date of the revocation
decision mailed May 17, 2000, the appeal must be
dismissed as untimely.
Board Opinion, May 19, 2004, at 1; Certified Record at 75.

Attorney Watkins was assigned to represent Lee. After review of
Lee's petition for review and the certified record, Attorney Watkins desires to
withdraw and asserts that Lee's appeal is without merit.

Appointed counsel may withdraw from assisting an indigent parolee
in appealing a parole revocation order, "[w]hen, in the exercise of his professional
opinion, counsel determines that the issues raised . . . are meritless, and when the . .
. court concurs . . . ." Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927,
928-929 (1988).

In reviewing a motion to withdraw, this Court must make an
independent evaluation of proceedings before the Board to determine whether a
parolee's appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole,
3

686 A.2d 423 (Pa. Cmwlth. 1986). When this Court agrees with counsel's
assessment of a frivolous appeal, this Court will grant the petition to withdraw if
counsel has fulfilled the technical requirements set forth in Craig v. Pennsylvania
Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig,
counsel must (1) notify the parolee of the request to withdraw, (2) furnish the
parolee with a copy of the brief, (3) advise the parolee of his right to retain new
counsel or raise any new points that he might deem worthy of his consideration. In
the no merit letter or brief, counsel must indicate the nature and extent of his
review, the issues the parolee wishes to raise, and counsel's analysis in concluding
that the appeal is frivolous. Wesley v. Pennsylvania Board of Probation and
Parole, 614 A.2d 355 (Pa. Cmwlth. 1992).

In his petition, Lee alleges that he was incarcerated under the Board's
arrest warrant and detainer from March 10, 1999, through July 26, 1999, without
the opportunity to apply for parole after the expiration of backtime:
Petitioner [Lee] stayed in continued confinement solely
pursuant to the Parole Board's arrest warrant, detainer,
and recommit order for a total of (16) months and (16)
days, on a (28) month imposed back time hit without the
opportunity to apply for reparole after the expiration of
the imposed back time. Petitioner [Lee] sent to the
Parole Board by way of certified mail, a letter of `Notice
of Intent,' trying to resolve the matter. While the Parole
Board did, in fact responded [sic], it failed to adequately
address the issue of violating Petitioner's [Lee] rights to
due process. . . .
Petition for Review, June 21, 2004, at 2-3. Lee alleges violations of the Fifth,
Eighth, Thirteenth, and Fourteenth Amendments to the United States Constitution
4

on the basis that the Board confined and detained him but did not permit him to
commence service of his backtime until he satisfied the federal sentence.

This Court granted the Board's motion to limit the issue to timeliness
on August 26, 2004.

Attorney
Watkins
reviewed the record and determined that there was
no indication that Lee's request for administrative relief of the May 17, 2000,
Board decision was received within thirty days and there is no allegation that Lee
filed the request or that the Board lost it. This Court agrees. Under the Board's
regulation, a parolee has thirty days from the mailing date of the Board's decision
to either appeal or petition for administrative review. 37 Pa.Code §73.1. Lee
clearly did not request administrative relief within thirty days of the Board's order.5
This Court agrees that Lee's petition for review is without merit.6

Accordingly, we grant Attorney Watkins's request and affirm the
order of the Board in the above-captioned matter.

____________________________

BERNARD L. McGINLEY, Judge

5
If Lee's actual challenge is that he did not receive credit for the time spent under
the Board's jurisdiction prior to his return to federal prison, this allegation is premature. Lee is
currently in federal prison. When Lee completes that sentence and is available to be
recommitted, the Board will issue a recommitment order which will include a new maximum
date. If Lee believes he did not receive credit he deserved, then he can request review of that
recommitment order.
6
This Court notes that Attorney Watkins asserted in his letter to this Court that he
complied with the notification requirements to Lee under Craig.
5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Lee,

:

Petitioner

:

:
v.

:

:
Pennsylvania Board of
:
Probation and Parole,

: No. 1295 C.D. 2004

Respondent

:

O R D E R

AND NOW, this 3rd day of February, 2005, the request of Kent D.
Watkins to withdraw as counsel in the above-captioned matter is granted. The
order of the Pennsylvania Board of Probation and Parole in the above-captioned
matter is affirmed.
____________________________

BERNARD L. McGINLEY, Judge