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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Andrew Dean Craig, : Petitioner : : v. : No. 1331 C.D. 2004 : SUBMITTED: December 30, 2004 Commonwealth of Pennsylvania, : Pennsylvania Board of Probation : and Parole, : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: March 2, 2005 Andrew Dean Craig petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) that denied his administrative appeal from his recommitment as a technical parole violator. In addition, Craig's appointed counsel, Kent Watkins, petitions for leave to withdraw on the grounds that Craig's appeal is frivolous. After review, we grant Watkins' petition and affirm the order of the Board. Following a revocation hearing, Craig was recommitted as a technical parole violator to serve 12 months back-time based upon the findings that he violated parole conditions number 3A (failure to report) and 5A (use of drugs). Craig filed a pro se administrative appeal wherein he asserted that the finding that he violated parole condition number 3A was not supported by sufficient evidence. The Board denied relief and Craig filed a pro se petition for review in this court asserting the same argument. Pursuant to an order of this court, Watkins was appointed as appellate counsel. Shortly thereafter, Watkins filed his petition to withdraw as counsel and a "Turner letter" in support thereof.1 In his Turner letter, Watkins sufficiently details the issue raised, the nature and extent of his review and his analysis in concluding that the appeal is frivolous. See Hont v. Pennsylvania Bd. of Prob. and Parole, 680 A.2d 47 (Pa. Cmwlth. 1996) (establishing requisite elements of adequate Turner letter). Specifically, Watkins noted that while Craig denied failing to maintain regular contact with the parole supervision staff, Craig's parole agent testified to the contrary. Watkins concluded that the Board obviously did not believe Craig. In addition, Watkins provided Craig with a copy of his petition to withdraw and the Turner letter. Therefore, Watkins has complied with the requirements necessary to seek leave to withdraw as counsel. Hont; Craig v. Pennsylvania Bd. of Prob. and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Finally, pursuant to an order of this court dated October 14, 2004, Craig was advised of his right to obtain substitute counsel or to file a brief on his own behalf. Craig has not retained substitute counsel nor filed a brief. In reviewing the petition to withdraw, we independently evaluate the proceedings before the Board to determine whether the appeal is frivolous. Dear v. Pennsylvania Bd. of Prob. and Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). After a 1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). 2 review of the record, we find no merit to Craig's assertion that the Board's finding that he violated parole condition number 3A is unsupported by sufficient evidence. Craig's parole agent, Paul Anderson, testified that Craig failed to report as instructed after February 10, 2003,2 through the date of his arrest in December 2003. Anderson further testified that a certified letter was sent to Craig's residence instructing him to report, but the letter was returned with the notation "Return to Sender." On cross-examination, Anderson testified that he instructed Craig when he was first released that he needed to report at least once, if not several times, each month. Anderson further testified that once Craig knew that there was a warrant for his arrest, he called Anderson numerous times, indicating that he was going to turn himself in but he never did. While Craig testified to the contrary, the Board clearly accepted Anderson's testimony rather than Craig's. We conclude that Anderson's testimony constitutes substantial evidence to support the finding that Craig failed to maintain regular contact with the parole supervision staff by reporting regularly as instructed in violation of parole condition number 3A. However, even if there were merit to Craig's argument that the record lacked substantial evidence to sustain the charge, Craig would not be entitled to any relief because the twelve months back-time that the Board ordered falls within the presumptive range for a violation of condition number 5A, which prohibits, among other things, the unlawful possession or use of controlled substances.3 See Kyte v. Pennsylvania Bd. of Prob. and Parole, 680 A.2d 14, 18 (Pa. Cmwlth. 1996) (stating that no remand for reconsideration of back-time is necessary "where 2 Craig was released on parole on January 23, 2003. On February 10, Craig reported and submitted a urine sample. 3 The presumptive range for a violation of condition 5A is five to twelve months. 37 Pa. Code § 75.4. 3 recommitment within presumptive range of remaining technical parole violations, even though one violation held unsupported by the evidence"). Accordingly, we grant the petition to withdraw and affirm the order of the Board. ________________________________________ BONNIE BRIGANCE LEADBETTER, Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Andrew Dean Craig, : Petitioner : : v. : No. 1331 C.D. 2004 : Commonwealth of Pennsylvania, : Pennsylvania Board of Probation : and Parole, : Respondent : O R D E R AND NOW, this 2nd day of March, 2005, the petition of Kent Watkins to withdraw as counsel in the above captioned matter is hereby GRANTED and the order of the Pennsylvania Board of Probation and Parole is AFFIRMED. ________________________________________ BONNIE BRIGANCE LEADBETTER, Judge
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