ROMINGER
LEGAL
Pennsylvania Court Cases and Opinions -
PA Legal
Research
NOT FINDING
WHAT YOU NEED? -CLICK HERE
|
ROMINGER
LEGAL
|
||||||||||
|
Pennsylvania Court Cases and Opinions -
PA Legal
Research
|
||||||||||
| Need Legal Help? | ||||||||||
|
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 |
|
|
Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dalmer Lee Reyan, : Petitioner : : v. : No. 1442 C.D. 2004 : Submitted: February 18, 2005 Pennsylvania Board of Probation and : Parole, : Respondent : BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: March 15, 2005 Before this Court is a petition filed by Robert Feller Morocco, Esquire (Counsel) to withdraw as counsel for Dalmer Lee Reyan (Reyan) in an appeal from an order of the Pennsylvania Board of Probation and Parole (Board) denying his application for administrative relief regarding a parole revocation order of the Board. On September 3, 2001, Reyan was re-paroled on a sentence of receiving stolen property. After Reyan tested positive for use of a controlled substance, which was a violation of one of his parole conditions, he was returned to custody as a technical parole violator. After an October 7, 2003 hearing, Reyan's parole was revoked because of his use of drugs, and the Board recommitted him as a technical parole violator to serve seven months, 28 days of backtime, with a maximum term expiry date of March 28, 2004, being subject to change if he was convicted of the open charges. Before that parole violation hearing occurred on the technical parole violation for drug use, on September 16, 2003, Reyan was arrested and subsequently convicted on November 12, 2003, for indirect criminal contempt. He was also arrested on September 24, 2003, and subsequently convicted on November 12, 2003, again for indirect criminal contempt. In addition, on October 3, 2003, Reyan pled guilty before a district justice to a harassment charge stemming from a July 4, 2003 incident. As a result of those convictions and after a February 24, 20041 hearing, the Board recommitted Reyan as a technical parole violator to serve nine months backtime for his harassment conviction, which constituted a violation of one of his parole conditions. He was also recommitted as a convicted parole violator to serve 18 months backtime for the two counts of the offenses of indirect criminal contempt, concurrently, when available. The Board also modified its earlier action by deleting the parole violation maximum date and modifying it to say "when available." Arguing that the Board was not authorized to recommit him as a convicted parole violator for criminal offenses he committed while incarcerated, 1 We note that the hearing was originally scheduled for January 13, 2004, but was rescheduled after Reyan filed a continuance to secure private counsel and to further review the case with counsel. 2 Reyan filed an application for administrative relief from the Board's decision requesting that the Board release him from unlawful confinement. Finding that being charged with a technical parole violation while being confined on another technical parole violation was of no consequence as to whether Reyan violated a condition of parole when the actual violation of the condition of parole occurred prior to recommitment, the Board denied Reyan's request for administrative relief because Reyan's harassment charge stemmed from a July 4, 2003 incident and, thus, occurred prior to his confinement as a technical parole violator. Seeking a review of the Board's order, Reyan then filed a petition for review with this Court arguing that the Board: · waived its right to hold a hearing for the technical parole violation for the harassment conviction because the Board knew of the guilty plea and conviction for the harassment charges at the time of the technical parole violation hearing for Reyan's drug use on October 7, 2003; · waived charging him with a technical parole violation for the harassment charge because his greensheet from the October 7, 2003 hearing mailed on November 12, 2003, failed to address any violation of a parole condition for the harassment conviction; · held an untimely violation/revocation hearing on January 13, 2004,2 because the 120-day rule was violated; 2 Although Reyan refers to the hearing date as January 13, 2004, because of his own continuance request, the hearing was actually held on February 24, 2004. 3 · failed to provide Reyan with a maximum date on the new greensheet mailed to him after the January 13, 2004 hearing; and · erred by concluding that Reyan was a technical parole violator because of his harassment conviction because Reyan was incarcerated on the technical parole violation for his drug use at the time he pled guilty to the harassment charge on October 3, 2003, and, therefore, was not at liberty on parole and could not commit a technical parole violation after re-incarceration. Counsel then filed the present leave to withdraw petition, along with a no-merit letter, averring that after a full and conscientious examination of the record, he concluded that there was no factual or legal basis for relief in the form requested in Reyan's appeal. He sent Reyan a copy of the no-merit letter and also advised Reyan of his right to retain new counsel or raise any new points that he might deem worthy of consideration. Because Counsel has given Reyan the proper notice,3 we can address whether the no-merit letter itself is sufficient. A no-merit letter must set forth (1) the nature and extent of counsel's review of the case; (2) the issues the petitioner wishes to raise; and (3) counsel's analysis concluding that the appeal is frivolous. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Jefferson v. Pennsylvania Board of Probation and 3 "A court-appointed counsel who seeks to withdraw representation because issues raised by the petitioner are frivolous must fulfill the following technical requirements: (1) he must notify parolee of his request to withdraw; (2) he must furnish parolee with a copy of an Anders brief or no-merit letter; and (3) he must advise parolee of his right to retain new counsel or raise any new points that he might deem worthy of consideration." Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245, 1248 (Pa. Cmwlth. 2003). 4 Parole, 705 A.2d 513 (Pa. Cmwlth. 1998). It is only when we are satisfied that those requirements have been met that we will go on to make an independent evaluation of the proceedings before the Board to determine whether the petitioner's appeal is wholly frivolous before we will allow counsel to withdraw. Banks. A wholly frivolous appeal is one that is completely devoid of points that might arguably support an appeal. Congo v. Pennsylvania Board of Probation and Parole, 522 A.2d 676 (Pa. Cmwlth. 1987). Counsel's no-merit letter met those standards. It explained the nature and extent of his review of Reyan's case; listed each of the issues raised by Reyan on appeal; and briefly described the reasons why he concluded that each of Reyan's arguments were without merit. Because we are satisfied that Counsel fulfilled the technical requirements of an application for withdrawal and a no-merit letter, we will now conduct our own independent review to determine whether Reyan's appeal is wholly frivolous before we will allow Counsel to withdraw. The first two issues raised in Reyan's petition for review both involve whether the Board waived its right to charge him as a technical parole violator for the harassment charge because it purportedly knew, or should have known, of Reyan's conviction for the harassment charges when it held the hearing on his technical parole violation for drug abuse and did not address such convictions on his greensheet. Even if we ignore that there is nothing in the record that shows that the Board had any knowledge or the necessary official verification of Reyan's guilty plea at the October 7, 2003 hearing, this argument still fails because it overlooks the fact that 5 the underlying charges involved in the technical parole violation for drug use were different both factually and legally from those in the technical parole violation for the harassment conviction, and that nothing requires both violation hearings to be held at the same time, even if the Board knew about the harassment conviction prior to the October 7, 2003 hearing. See Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). Accordingly, Reyan's first two arguments lack basis in law or fact. Ignoring that the violation/revocation hearing actually took place on February 24, 2004, Reyan also argues that the Board held an untimely violation/revocation hearing on January 13, 2004. Although the Board's regulations4 require that revocation hearings held before the Board be held within 120 days of either a parole preliminary hearing, in the case of technical parole violations, or within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level, the right to a prompt revocation hearing is considered waived if the offender failed to lodge a timeliness objection at the revocation hearing. Commonwealth v. Collins, 492 Pa. 405, 424 A.2d 1254 (1981). Based on our examination of the record of the February 24, 2004 violation/revocation hearing, because Reyan did not raise any timeliness objections at the hearing, that argument is waived and is completely devoid of points that might arguably support an appeal. 4 See 37 Pa. Code §71.4(2). 6 Reyan next argues that the Board failed to provide Reyan with a maximum date on the new greensheet mailed to him after the January 13, 2004 hearing. However, the Board cannot place a maximum term expiry date on its recommitment order unless the offender is available to them. In this case, the March 25, 2004 recommitment order was modifying the November 12, 2003 recommitment order, which specified that March 28, 2004, would be the maximum term expiry date subject to change if Reyan was convicted on open charges. After Reyan was convicted of the indirect criminal contempt charges, the Board modified the order by, among other things, deleting the maximum date and adding "when available." Because the Board is not required to place a maximum term expiry date on the recommitment order when the offender is not available to them at the time because he is serving time on other charges, this argument lacks basis in law or fact. Finally, citing Miller v. Pennsylvania Board of Probation and Parole, 837 A.2d 618 (Pa. Cmwlth. 2003), Reyan contended in his petition that because he was incarcerated as a technical parole violator at the time he pled guilty to the harassment charge on October 3, 2003, he could not commit a parole violation after re-incarceration. In Miller we held, inter alia, that an offender being held on technical parole violations when he refused to submit to a urine test could not have violated an additional parole condition because at the time of his refusal, he was no longer on parole. What makes this case different is that on July 4, 2003, the date Reyan committed the actions which constituted harassment, he was on parole, and it is when the act was committed that controls, not when he was convicted. Although Reyan was being held on technical parole violations when he was 7 convicted of the harassment charges, because he was at liberty on parole when he committed the harassment, this argument also lacks basis in law or fact. Because Counsel fulfilled all of the technical requirements of an application for withdrawal and a no-merit letter, and our independent review of the proceedings before the Board reveals that Reyan's appeal is wholly frivolous, we grant Counsel's application for leave to withdraw and affirm the order of the Board denying Reyan's request for administrative relief. ______________________________ DAN PELLEGRINI, JUDGE 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dalmer Lee Reyan, : Petitioner : : v. : No. 1442 C.D. 2004 : Pennsylvania Board of Probation and : Parole, : Respondent : O R D E R AND NOW, this 15th day of March, 2005, the application filed by Robert Feller Morocco, Esquire, for leave to withdraw as counsel is granted, and the June 9, 2004 order of the Pennsylvania Board of Probation and Parole at No. 7566-0 denying Dalmer Lee Reyan's request for administrative relief is affirmed. ______________________________ DAN PELLEGRINI, JUDGE
|
|
|
NOW - CASE
LAW - All 50 States - Federal Courts - Try
it for FREE
We
now have full text legal news
drawn from all the major sources!!
Pennsylvania Lawyer Help Board
TERMS
OF USE - DISCLAIMER - LINKING POLICIES
Created and Developed by
Rominger Legal
Copyright 1997 - 2009.
A Division of
ROMINGER, INC.
