D. Anderson, II v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Durango Anderson, II, :

Petitioner :

:

v. : No. 813 C.D. 2019

: Submitted: February 4, 2022

Pennsylvania Board of Probation and :

Parole, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: March 25, 2022

Durango Anderson, II (Anderson) petitions for review of the Pennsylvania

Board of Probation and Parole’s (Board)1 May 29, 2019 order affirming its February

13, 2018 decision. In that decision, the Board recommitted Anderson as a convicted

parole violator (CPV) to serve 48 months of backtime, awarded him no credit for

time spent at liberty on parole, and recalculated his maximum parole violation date

as January 14, 2032. Anderson’s counsel, Victoria Hermann, Esquire (Counsel), has

submitted an Amended Motion to Withdraw as Counsel (Amended Motion to

1

The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole

Board after Anderson filed his Petition for Review. See Sections 15, 16, and 16.1 of the Act of

December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and

6111(a) of the Prisons and Parole Code (Parole Code), as amended, 61 Pa. C.S. §§ 6101, 6111(a).

Withdraw) along with a Turner letter.2 Counsel contends the arguments raised by

Anderson in his Petition for Review are frivolous and without merit. After thorough

consideration, we grant Counsel’s Amended Motion to Withdraw, remand this

matter to the Board for the sole purpose of correcting a time credit calculation that

was erroneously in Anderson’s favor, and otherwise affirm the Board’s May 29,

2019 order.

I. Background

On May 14, 1991, Anderson pled guilty in the Court of Common Pleas of

Philadelphia County (Trial Court) to 6 counts of robbery and was sentenced to an

aggregate term of 12 to 30 years in state prison. Certified Record (C.R.) at 1. The

Board paroled Anderson on March 27, 2003, at which point the maximum date on

these sentences was August 2, 2020. Id. at 3-6.

On February 19, 2014, the Philadelphia Police Department (PPD) began

investigating allegations that Anderson had repeatedly molested his then-seven-

year-old daughter. Id. at 16. The City of Philadelphia’s (City) Department of Human

Services, the PPD’s Special Victims Unit, and the Philadelphia Children’s Alliance

2

Through this type of letter, an attorney seeks to withdraw from representation of a parole

violator because “the [violator’s] case lacks merit, even if it is not so anemic as to be deemed

wholly frivolous.” Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).

Such letters are referred to by various names by courts of this

Commonwealth. See, e.g., Com[.] v. Porter, [. . .] 728 A.2d 890, 893

& n.2 ([Pa.] 1999) (referring to such a letter as a “‘no merit’ letter”

and noting that such a letter is also commonly referred to as a

“Finley letter,” referring to the Superior Court case Commonwealth

v. Finley, [. . .] 479 A.2d 568 ([Pa. Super.] 1984)); Zerby v. Shanon,

964 A.2d 956, 960 (Pa. Cmwlth. 2009) (“Turner letter”)[, referring

to the Pennsylvania Supreme Court case Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988)]; Com[.] v. Blackwell, 936 A.2d 497, 499

(Pa. Super. 2007) (“Turner/Finley letter”).

Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 n.2 (Pa. Cmwlth. 2009).

2

each swiftly investigated these accusations and found them to be credible. Id. at 17-

35. The Board issued a detainer warrant for Anderson on February 28, 2014, based

upon Anderson’s technical violations of his parole terms, which resulted in

Anderson being arrested and placed at Coleman Hall, a halfway house in the City,

that same day. Id. at 36, 54-55, 63. On March 5, 2014, Anderson waived his rights

to a parole violation hearing and to counsel, and admitted to a technical violation of

his parole terms. Id. at 59-60.

On March 11, 2014, the Trial Court issued a temporary protection from abuse

order against Anderson, barring him from contact with his minor daughter and her

mother. Id. at 40-53.

On March 19, 2014, PPD officers arrested Anderson at Coleman Hall and

subsequently charged him with 22 counts of various sexual offenses. Id. at 63-65,

70, 78, 80, 82, 86, 92-101. On March 20, 2014, the Trial Court set Anderson’s bail

at $125,000, which he was unable to post. Id. at 114. On April 3, 2014, Anderson

again waived his rights to a parole revocation hearing and to counsel. Id. at 88-89.

On May 1, 2014, the Board ordered that Anderson be detained pending resolution of

these criminal charges and that he serve six months of backtime on his May 1991

sentence as a technical parole violator (TPV). Id. at 104-05. On June 12, 2014, the

Trial Court removed the monetary bail requirement and released Anderson on his

own recognizance. Id. at 114.

On September 27, 2017, a jury found Anderson guilty of 1 count of rape, 1

count of involuntary deviate sexual intercourse with a person less than 16 years old,

2 counts of unlawful contact with minors, 1 count of aggravated indecent assault of

a person less than 13 years old, 1 count of aggravated indecent assault of a person

3

less than 13 years old, and 1 count of endangering the welfare of children. Id. at 131,

141, 146.3

Anderson subsequently signed Board-proffered forms on November 9, 2017,

through which he waived his rights to a parole revocation hearing and to counsel,

and admitted that he had been convicted of these crimes. Id. at 167-69. Thereafter,

on January 12, 2018, the Trial Court sentenced Anderson to an aggregate carceral

term of 14 to 28 years in state prison. Id. at 189-92, 214-16. On February 13, 2018,

the Board ordered Anderson to serve 48 months of backtime on his May 1991

sentence as a CPV, concurrent with the 6 months of TPV backtime the Board had

previously imposed. Id. at 239-40. The Board gave Anderson credit for 1,223 days

that he had been detained on the Board’s warrant, which the Board identified as

being between February 28, 2014, and March 20, 2014, and between June 12, 2014,

and September 27, 2017, but gave Anderson no credit for time served at liberty on

parole. Id. at 237-40. Finally, the Board determined that Anderson had 5,115 days

left on his May 1991 sentence and, using January 12, 2018, as the date of his return

to Board custody, recalculated the maximum date on this sentence as January 14,

2032. Id. at 237, 240.

On February 27, 2018, Anderson mailed an administrative remedies form and

a “Request for Administrative Review” to the Board. In these documents, Anderson

challenged the Board’s February 13, 2018 decision on several bases. First, he argued

that he had not received the correct amount of credit for time served in pre-sentence

detention and, therefore, that the Board had miscalculated the new maximum date

3

Anderson was also found not guilty of 1 count of unlawful contact with minors, 1 count

of indecent assault of a person under 13, and 1 count of corruption of minors. C.R. at 115. The

City’s Office of the District Attorney elected to nolle pros the remaining charges against Anderson.

Id. at 115, 125, 131, 141, 146.

4

on his May 1991 sentence. Id. at 241. Second, he alleged the Board had unlawfully

extended his judicially imposed sentence by declining to give him credit for time

served at liberty on parole, thereby violating the separation of powers doctrine. Id.

at 244-45. Finally, he maintained that the Board had violated his due process rights

by recalculating his aforementioned maximum date without giving him sufficient

notice or holding a hearing. Id. at 245-46. The Board denied Anderson’s

administrative challenges on May 29, 2019. Id. at 256-58.

On June 25, 2019, Anderson filed a pro se Petition for Review with our Court.

Therein, he argues that by denying him relief, the Board violated his due process

rights and the United States and Pennsylvania Constitutions’ prohibitions against

double jeopardy. Pet. ¶¶2-3. In addition, Anderson claims that the Board abused its

discretion by denying him credit for time served at liberty on parole. Id. ¶4. Finally,

he maintains that Section 6138(a)(2.1) of the Parole Code, 61 Pa. C.S. §

6138(a)(2.1), which gives the Board discretionary authority to award credit for time

served at liberty on parole in most circumstances, is unconstitutional because it

allows the Board to extend a judicially imposed maximum date. Id. ¶5.

On July 8, 2019, we appointed the Public Defender of Forest County to

represent Anderson in this matter. Cmwlth. Ct. Order, 7/8/19, at 1. Tyler Lindquist,

Esquire, then entered his appearance on behalf of Anderson on February 4, 2020,

and filed a Motion to Withdraw and a Turner letter that same day. On August 12,

2020, we denied Lindquist’s Motion to Withdraw without prejudice, on the basis

that it did not adequately address the issues Anderson had raised in his Petition for

Review and administrative appeal paperwork, and ordered Lindquist to submit either

an amended motion to withdraw or a brief in support of the Petition for Review.

Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1206-07 (Pa. Cmwlth. 2020)

5

(Anderson I). At some point thereafter, and without informing this Court, Counsel

replaced Lindquist as Anderson’s legal representative in this matter.4 Counsel then

complied with our directive to Lindquist by filing her Amended Motion to Withdraw

on December 3, 2021.

II. Discussion

A. Technical Sufficiency of Counsel’s Turner Letter

Before addressing the validity of Anderson’s substantive arguments, we must

assess the adequacy of Counsel’s Turner letter. Throughout this process, Anderson

has only sought to challenge the Board’s calculation of his maximum date, its denial

of credit for time served at liberty on parole, and its alleged violation of his due

process rights during the parole revocation process. For this reason, Counsel

appropriately elected to file a Turner letter.5 “A [Turner] letter must include an

explanation of ‘the nature and extent of counsel’s review and list each issue the

4

It is unclear when or how Lindquist was replaced by Counsel as Anderson’s legal

representative, as Lindquist never formally withdrew from this matter and Counsel never entered

her appearance of record. As best we can gather from the Motion to Withdraw and the Amended

Motion to Withdraw, Anderson’s case is being handled by Kinnear Law Office, LLC (Kinnear), a

private firm, in the Public Defender of Forest County’s stead. See Motion to Withdraw at 5;

Amended Motion to Withdraw at 4. Lindquist was employed by Kinnear, but left at some point

after he filed the Motion to Withdraw, while Counsel was hired by Kinnear after Lindquist filed

the Motion to Withdraw, but prior to when she filed the Amended Motion to Withdraw. See Motion

to Withdraw at 5; Amended Motion to Withdraw at 4. Thus, even though Counsel and Lindquist

did not follow proper procedure with regard to entering or withdrawing their appearances in this

matter, see Pa. R.A.P. 120, it remains that while the lawyer representing Anderson has changed,

the firm that represents him has not.

5

Pursuant to Anders v. California, 386 U.S. 738 (1967), an attorney must file what is

known as an Anders brief when seeking to withdraw from representation in certain

circumstances. See Com. v. Santiago, 978 A.2d 349, 353-55 (Pa. 2009). An Anders brief was

unnecessary in this matter, however, because none of Anderson’s claims implicated his

constitutional right to counsel. See Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 n.4

(Pa. Cmwlth. 2010).

6

petitioner wished to have raised, with counsel’s explanation of why those issues are

meritless.’” Seilhamer, 996 A.2d at 43 (quoting Turner, 544 A.2d at 928) (some

alterations omitted). As long as a Turner letter satisfies these basic requirements, we

may then review the soundness of a petitioner’s request for relief. Zerby, 964 A.2d

at 960. However, if the letter fails on technical grounds, we must deny the request

for leave to withdraw, without delving into the substance of the underlying petition

for review, and may direct counsel to file either an amended request for leave to

withdraw or a brief on behalf of their client. Id.

Counsel’s Turner letter satisfies these technical requisites. It contains a

recitation of the relevant factual and procedural history, a discussion of the

arguments raised by Anderson, and a thorough explanation, backed by case and

statutory law, regarding Counsel’s conclusion that none of these arguments afford

Anderson a valid basis for relief. Amended Motion to Withdraw at 4-7.6 Further,

Counsel has appropriately provided Anderson with copies of these documents,

notified Anderson about Counsel’s intentions, and informed Anderson of his right

to hire another lawyer to represent him in this matter or to represent himself pro se.

Id. at 1-2.

B. Substantive Review of Anderson’s Petition for Review

Consequently, we will proceed to an independent examination of Anderson’s

Petition for Review, in order to determine whether any of Anderson’s claims are

meritorious.7 Before delving into the substantive merit (or lack thereof) of each

Counsel’s Turner letter is attached to her Amended Motion to Withdraw, but is not clearly

6

marked as a separate exhibit. Therefore, we refer to both the Turner letter and the Motion to

Withdraw as if they are one contiguous document.

7

“Our scope of review over actions of the Board is limited to determining whether the

decision was supported by substantial evidence, whether an error of law occurred or whether

(Footnote continued on next page…)

7

claim, we must note two things. First, Anderson did not see fit to raise his double

jeopardy argument during the administrative appeal process before the Board. See

C.R. at 241, 243-46. Nor did he broadly assert to the Board, as he does in his Petition

for Review, that Section 6138(a)(2.1) of the Parole Code, 61 Pa. C.S. § 6138(a)(2.1),

is unconstitutional, or that the Board abused its discretion by denying him credit for

time served at liberty on parole. See id. “The law is well settled that issues not raised

before the Board either at the revocation hearing or in the petitioner’s administrative

appeal are waived and cannot be considered for the first time on appeal.” Chesson

v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012). However, there

is an exception to this rule, in instances where a petitioner raises “[q]uestions

involving the validity of a statute.” Pa. R.A.P. 1551(a)(1); accord Lehman v. Pa.

State Police, 839 A.2d 265, 275 (Pa. 2003). (“In a facial challenge, a party is not

required to exhaust administrative remedies because ‘the determination of the

constitutionality of enabling legislation is not a function of the administrative

agencies thus enabled’” (quoting Borough of Green Tree v. Bd. of Prop.

Assessments, 328 A.2d 819, 825 (Pa. 1974))). As such, he has waived his ability to

make those abuse of discretion and due process claims, but not his ability to

challenge the constitutionality of 61 Pa. C.S. § 6138(a)(2.1). Second, Anderson does

not mention two issues in his Petition for Review that he had previously raised in his

administrative appeal paperwork. Specifically, these omitted claims are that the

Board miscalculated the new maximum date on his May 1991 sentence, due to a

misallocation of credit for time served in pre-sentence detention, and that the Board

violated the separation of powers doctrine by declining to give him credit for street

time. See Pet. ¶¶1-5. However, despite Anderson’s decision to exclude these

constitutional rights were violated.” Ramos v. Pa. Bd. of Prob. & Parole, 954 A.2d 107, 109 n.1

(Pa. Cmwlth. 2008).

8

arguments from his Petition for Review, we must nevertheless consider their merits

in the process of deciding whether to grant Counsel’s Amended Motion to

Withdraw. See Pa. R.A.P. 1513(d)(5) (“[T]he omission of an issue from the

statement [of objections in a petition for review] shall not be the basis for a finding

of waiver if the court is able to address the issue based on the certified record.”);

Anderson I, 237 A.3d at 1207 (“[T]he identifiable issues raised at the administrative

level are not waiv[able by a petitioner on appeal] until the substantive brief

stage[.]”).

Accordingly, we conclude that Anderson has presented four arguments that

we must review at this stage: (1) The Board infringed upon his due process rights by

pushing back the maximum date on his May 1991 sentence without giving him

sufficient notice or holding a hearing; (2) The Board violated the separation of

powers doctrine by unlawfully extending his judicially imposed May 1991 sentence;

(3) 61 Pa. C.S. § 6138(a)(2.1) is facially unconstitutional, because it allowed the

Board to extend a judicially imposed maximum sentence date; and (4) The Board

incorrectly recalculated the maximum date on this sentence, due to an erroneous

allocation of credit for time served in pre-sentence detention. Each of these

arguments, which we address seriatim, is without merit. First, in order for the

Board to provide constitutionally adequate due process, “[a] parolee ‘must have an

opportunity to be heard and to show, if he can, that he did not violate the conditions,

or, if he did, that circumstances in mitigation suggest that the violation does not

warrant revocation.’” Prebella v. Pa. Bd. of Prob. & Parole, 942 A.2d 257, 262 (Pa.

Cmwlth. 2008) (quoting Morrissey v. Brewer, 408 U.S. 471, 488 (1972)). However,

a parolee may waive their right to such process as long as they do so in a knowing,

intelligent, and voluntary manner. Id. at 261.

9

In order to effectuate a knowing and voluntary waiver in .

. . Board cases, all that is required is for the Board to show

that it followed its own regulations and provided the

necessary information to the offender prior to the offender

signing the written waiver form. . . . The waiver need not

be effectuated in an on the record colloquy. . . . Rather, . .

. execution of the Board’s form is sufficient.

Id. (internal citations omitted). As already noted, Anderson signed Board-proffered

forms in September 2017, through which he waived his rights to a parole revocation

hearing and to counsel, and admitted that he had been convicted of numerous crimes.

See C.R. at 167-69. Anderson does not argue that the Board failed to comply with

its own regulations in securing these waivers, nor does he maintain that his decision

to sign these forms, or his consequent waiver of rights, was not knowing, intelligent,

and voluntary.

Second, it is well settled that the Board does not violate the separation of

powers doctrine when it declines to award street time credit and consequently

recalculates the affected violator’s maximum date. Davidson v. Pa. Bd. of Prob. &

Parole, 33 A.3d 682, 685-86 (Pa. Cmwlth. 2011). Simply put, “the . . . Board [does]

not . . . unlawfully extend[] the term of [a] maximum sentence [through these

actions], but . . . merely withdraw[s] from [a violator] credit for the time he was at

liberty on parole, which the Board has the express authority to do under the [Parole

Code].” Com. ex rel. Ohodnicki v. Pa. Bd. of Parole, 211 A.2d 433, 435 (Pa. 1965);

see also Young v. Com. of Pa. Bd. of Prob. & Parole, 409 A.2d 843, 848 (Pa. 1979)

(“[T]he . . . Board’s power to deny credit for ‘street time’ . . . is not an encroachment

upon the judicial sentencing power.”).

Third, for similar reasons, 61 Pa. C.S. § 6138(a)(2.1) is not facially

unconstitutional. Per this statute, as it was written at the time of Anderson’s parole

violations,

10

The [B]oard may, in its discretion, award credit to a

parolee recommitted under [61 Pa. C.S. §

6138(a)(2)] for the time spent at liberty on parole,

unless any of the following apply:

(i) The crime committed during the period of parole

or while delinquent on parole is a crime of violence

as defined in 42 Pa. C.S. § 9714(g)(relating to

sentences for second and subsequent offenses) or a

crime requiring registration under 42 Pa. C.S. Ch.

97 Subch. H (relating to registration of sexual

offenders).

(ii) The parolee was recommitted under [61 Pa. C.S.

§] 6143 (relating to early parole of inmates subject

to Federal removal order).

Former 61 Pa. C.S. § 6138(a)(2.1) (2013). Through the Parole Code, the General

Assembly has imbued “the Board the power to recommit a convicted parole violator

to serve the balance of the court-imposed maximum sentence if the new crime was

committed by the parolee before the expiration of the maximum sentence originally

imposed. . . . Furthermore, the constitutional challenges to this procedure [have

been] rejected by this Court[.]” Knisley v. Pa. Bd. of Prob. & Parole, 362 A.2d 1146,

1148 (Pa. Cmwlth. 1976). Moreover, this statute does not actually allow the Board

to extend a judicially imposed sentence; rather, it merely enables the Board to require

that a parolee serve all or part of that sentence, while simultaneously placing limits

on the Board’s discretion to award the parolee credit for time served at liberty on

parole. See id. (“[I]n altering the expiration dates of sentences, the Board is not

altering the total time to be served by a convict under a court-imposed sentence[.]”).

Finally, the law in our Commonwealth provides that, in instances where

a [parolee] is being held in custody solely because of a

detainer lodged by the Board and has otherwise met the

requirements for bail on the new criminal charges [that

were lodged against him], the time which he spent in

custody [must] be credited against his original sentence. If

a [parolee], however, remains incarcerated prior to trial

because he has failed to satisfy bail requirements on the

11

new criminal charges, then the time spent in custody shall

be credited to his new sentence.

Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa. 1980). Here, Anderson

stated in his administrative appeal that he challenged the Board’s recalculation of

his maximum date, but confusingly appears to have done so because he believed the

time he spent in pre-sentence custody should have been applied to his January 2018

sentence, rather than his May 1991 sentence. See C.R. at 241 (sentence credit

challenge box is checked on administrative remedies form, coupled with statement

that “[Trial Court] said the [4] years I have been back in state prison time is credited

to the 14 to 24 year sentence [sic]”). Setting aside the fact that “[t]he Department [of

Corrections, rather than the Board,] is [the] executive branch agency that is charged

with faithfully implementing sentences imposed by the courts[,] McCray v.

Pennsylvania Department of Corrections, 872 A.2d 1127, 1133 (Pa. 2005), we

conclude that the Board actually gave Anderson too much credit towards his May

1991 sentence for the time he was held prior to sentencing on his September 2017

convictions. As already noted, Anderson was confined between February 28, 2014,

the date the Board issued its detainer warrant, and January 12, 2018, the date upon

which he was sentenced. By contrast, Anderson was arrested on the new charges on

March 19, 2014, but was released on his own recognizance regarding those charges

on June 12, 2014. The Board reviewed this sequence of events and concluded that

Anderson was entitled to 1,223 days of credit towards his May 1991 sentence for the

time he had been detained solely on the Board’s warrant, covering February 28,

2014, through March 20, 2014, and June 12, 2014, through September 27, 2017.

Thus, though the Board did not shortchange Anderson through its calculations, it

gave him one more day of credit towards his original sentence than he was entitled

to receive, as he was arrested on March 19, 2014, not March 20, 2014.

12

III. Conclusion

Accordingly, we grant Counsel’s Amended Motion to Withdraw. In addition,

we remand this matter to the Board for the sole purpose of correcting the

aforementioned time credit calculation error and otherwise affirm the Board’s May

29, 2019 order.

____________________________

ELLEN CEISLER, Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Durango Anderson, II, :

Petitioner :

:

v. : No. 813 C.D. 2019

:

Pennsylvania Board of Probation and :

Parole, :

Respondent :

ORDER

AND NOW, this 25th day of March, 2022, it is HEREBY ORDERED that

Victoria Hermann, Esquire’s Amended Motion to Withdraw as Counsel is

GRANTED. It is FURTHER ORDERED that this matter is REMANDED to

Respondent Pennsylvania Board of Probation and Parole (Board) for the sole

purpose of properly recalculating, in a manner consistent with the foregoing opinion,

the pre-sentencing time credit it awarded to Anderson and, in addition, that the

Board’s May 29, 2019 order is otherwise AFFIRMED.

Jurisdiction relinquished.

ELLEN CEISLER, Judge