The opinion of the court was delivered by: Judge Cohn Jubelirer
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Before this Court is the Application for Leave to Withdraw as Counsel (Application) of Kent D. Watkins (Counsel) from the representation of Connel Clayton Hughes (Hughes). Hughes filed a Petition for Review (Petition) of the determinations of the Pennsylvania Board of Probation and Parole (Board) revoking Hughes' parole and recalculating his sentence.
On August 5, 1998, Hughes was sentenced to the following five concurrent sentences: (1) "six months to five years . . . for possession with intent to deliver"; (2) two to eight years for possession with intent to deliver; (3) one to two years for possession of an instrument of crime; (4) six months to one year for unlawful possession of drug paraphernalia; and (5) 30 days for possession of marijuana. (Letter from Counsel to Office of Chief Clerk, Commonwealth Court of Pennsylvania (No-Merit Letter) (October 6, 2008) at 1-2.) On July 22, 1999, the Board issued an order paroling Hughes as of November 17, 1999.
On December 4, 2000, the Board issued an order declaring Hughes delinquent as of November 21, 2000. On February 28, 2001, the Board issued an order recommitting Hughes as a technical parole violator to serve 12 months of backtime for two counts of "leaving the district without permission," two counts of "failure to report," and one count of "failure to comply with all laws." (Board Order, Feb. 28, 2001, R. at 11.) On December 17, 2002, the Board issued an order recommitting Hughes as a convicted parole violator to serve 24 months of backtime, when available, based on his conviction on two counts of using "a communication facility to distribute crack cocaine." (Board Order, Dec. 17, 2002, R. at 12.)
On February 24, 2005, the Board received a letter from Hughes, which the Board construed as a petition for administrative review, inquiring on the status of Hughes' parole and requesting a hearing from the Board. By letter mailed March 15, 2005, the Board responded that because Hughes was still serving a federal sentence he was not considered available to serve his backtime and, therefore, the Board had not yet recalculated his maximum date.
By order issued January 31, 2008, the Board, referring to its December 17, 2002 order recommitting Hughes as a technical and convicted parole violator to serve 24 months of backtime, recalculated Hughes' maximum date as May 2, 2014.
On February 28, 2008, Hughes mailed to the Board a Request for Administrative Review challenging the Board's January 31, 2008 order. In this request, Hughes alleged: (1) that his maximum date was not correctly calculated; (2) that there had not been a detention hearing on the federal charges of which he was convicted prior to his recommitment as a convicted parole violator, but only on his state charges, which were dismissed; and (3) that the recommitment hearing wherein he was determined to be a convicted parole violator was not held until 10 months after his guilty plea in federal court and was, therefore, untimely. Hughes also broadly alleged ineffective assistance of counsel and denial of his due process rights.
On April 14, 2008, the Board issued a new order modifying its prior order of January 31, 2008, and recalculated Hughes' maximum date to be August 31, 2014. On May 13, 2008, the Board mailed a response to Hughes' Request for Administrative Review, stating that his arguments regarding defects in the Board's recommitment of Hughes as a convicted parole violator were untimely, and that such claims could not be revived by the Board's subsequent recalculation orders. Regarding Hughes' arguments as to the defects in the Board's recalculation order mailed January 31, 2008, the Board stated that these arguments were rendered moot by the Board's subsequent recalculation decision issued April 14, 2008.
On June 12, 2008, Hughes, represented by Counsel, filed Hughes' Petition in this Court arguing that: (1) the Board's order issued April 14, 2008 improperly revoked Hughes' parole; (2) the Board failed to give Hughes credit for time served solely under the Board's warrant; and (3) the Board failed to hold a timely revocation hearing.
On July 2, 2008, the Board filed a Motion to Limit the Issue and Application for Stay (Motion to Limit). In the Motion to Limit, the Board requested that this Court "limit the issue on appeal to whether Respondent correctly dismissed [Hughes'] pro se combined administrative appeal of a revocation decision and petition for administrative review of a separate and distinct recalculation order as untimely with respect to the revocation decision and as moot with respect to the recalculation order." (Motion to Limit at 1.) By order dated July 28, 2008, this Court granted the Motion to Limit. On October 8, 2008, Counsel filed his Application with this Court, along with his No-Merit Letter.
Before addressing the merits of Counsel's Application, we first review the steps counsel appointed to represent petitioners seeking review of determinations of the Board must take to withdraw from representation. The standards for an application to withdraw from representation in an appeal from a decision of the Board grew out of the standards for withdrawal of appointed counsel from direct and collateral appeals of criminal convictions. Interpreting a line of cases which began with the United States Supreme Court's decision in Anders v. California, 386 U.S. 738 (1967), the Pennsylvania Supreme Court in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), set out the modern standard for the steps a court-appointed attorney must take in order to withdraw from representation of a criminal defendant in a direct appeal. The Supreme Court stated that, in order to withdraw, the attorney must: (1) notify the court and the defendant of his belief that the appeal is wholly frivolous and of his intent to withdraw; (2) provide a brief to the court and the defendant which includes any matter in the record that could arguably support the defendant's appeal; and (3) advise the defendant of "his right to retain new counsel" or proceed pro se. McClendon, 495 Pa. at 470-72, 434 A.2d at 1186-87. These steps are designed to protect an indigent criminal defendant's right to effective assistance of counsel under the Sixth Amendment of the United States Constitution and to ensure that the attorney seeking to withdraw is not forced to argue against his client, but presents the reviewing court with information that will aid it in determining whether the defendant's appeal is frivolous. Anders, 386 U.S. at 744-45.
This Court first applied McClendon in the context of a petition for review from a determination of the Board in Scott v. Jacobs, 463 A.2d 110 (Pa. Cmwlth. 1983), but did so without much explanation. In Craig v. Pennsylvania Board of Probation & Parole, 502 A.2d 758 (Pa. Cmwlth. 1985), this Court explained its rationale for applying the Anders/McClendon requirements to counsel seeking to withdraw from representation of petitioners seeking review of parole revocation determinations, stating that doing so balanced the interest of indigent petitioners in effective assistance of counsel against the duty of attorneys not to press frivolous cases, recognized in case law and the Pennsylvania Code of Ethical Responsibility. Craig, 502 A.2d at 760-61. This rationale exhibits how the ...