May 19, 2010
ZANE J. SEILHAMER, JR., PETITIONER
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT
The opinion of the court was delivered by: Judge Cohn JUBELIRER*fn1
Submitted: October 9, 2009
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Zane J. Seilhamer, Jr. (Seilhamer) petitions for review of a final adjudication of the Pennsylvania Board of Probation and Parole (Board) that affirmed the decision recommitting Seilhamer as a convicted parole violator to serve his unexpired term of two months and twenty-five days and recalculating his maximum date as February 11, 2009. Seilhamer is represented in this matter by Jonathan D. Ursiak, Esq., Assistant Public Defender of Luzerne County (Counsel). Counsel has filed a Petition for Leave to Withdraw as Counsel (Petition to Withdraw), in which he asserts that Seilhamer's Petition for Review is frivolous and without merit.
On December 2, 2005, Seilhamer was sentenced to serve one to two years in a state correctional institution after pleading guilty to the offenses of robbery and theft by deception. (Sentence Status Summary at 1-2, July 30, 2007, R. at 7-8.) Seilhamer's maximum date for this sentence was calculated as October 10, 2007. (Sentence Status Summary at 2, R. at 8.) On January 8, 2007, Seilhamer was released on parole. (Order to Release on Parole/Reparole, October 16, 2006, R. at 16.)
Thereafter, the Board declared Seilhamer delinquent effective January 24, 2007. (Administrative Action, February 5, 2007, R. at 19.) On May 8, 2007, the Board recommitted Seilhamer to serve six months backtime as a technical parole violator (Notice of Board Decision at 1, mailed May 24, 2007, R. at 21), and the Board subsequently recalculated Seilhamer's maximum date as November 26, 2007. (Notice of Board Decision, mailed August 6, 2007, R. at 27.) The Board reparoled Seilhamer on September 17, 2007. (Order to Release on Parole/Reparole, September 5, 2007, R. at 29.)
On November 8, 2007, the Altoona Police Department arrested Seilhamer on new criminal charges. (Criminal Arrest and Disposition Report at 1, November 14, 2007, R. at 35.) On August 18, 2008, Seilhamer pleaded guilty to criminal attempt (Court of Common Pleas of Blair County Criminal Docket at 4, December 31, 2008, R. at 45), and he was sentenced to serve twenty-one to forty-two months in a state correctional institution for this new conviction on September 19, 2008. (Sentence Status Summary at 1, R. at 109.)
On November 3, 2008, the Board held a parole revocation hearing regarding Seilhamer's new conviction. (Hearing Report, November 3, 2008, R. at 67-72.) On December 31, 2008, the Board: (1) recommitted Seilhamer as a convicted parole violator to serve the remainder of his unexpired term of two months and twenty-five days; and (2) recalculated Seilhamer's maximum date as February 11, 2009. (Notice of Board Decision, mailed January 8, 2009, R. at 95.)
Seilhamer filed a counseled request for administrative relief, seeking to have his maximum date changed to December 31, 2008, claiming that he had been returned to SCI-Camp Hill on October 7, 2008 and that his unexpired term of two months and twenty-five days should have been calculated from that date. (Request for Administrative Relief, January 29, 2009, R. at 102.) On February 11, 2009, Seilhamer completed serving his original state sentence. (Sentence Status Summary at 1, February 23, 2009, R. at 109; Moves Report, R. at 112.) At that point, Seilhamer immediately began serving the remainder of his new state sentence for his criminal attempt conviction, and the maximum date for that conviction was calculated as August 2, 2011. (Sentence Status Summary at 1, R. at 109; Moves Report, R. at 112.) On March 3, 2009, the Board issued a final adjudication concluding that the recalculation of Seilhamer's maximum date was correct and denying Seilhamer's request for administrative relief. (Final Adjudication at 1-2, R. at 113-14.)
On April 2, 2009, Seilhamer filed his Petition for Review with this Court. In his Petition for Review, Seilhamer challenges the Board's recalculation of the maximum date on his original sentence. Specifically, Seilhamer asserts that his maximum date should have been recalculated as December 31, 2008, not February 11, 2009.*fn2 Counsel filed his Petition to Withdraw, along with an Anders*fn3 brief, on July 24, 2009.
Before we reach the merits of Seilhamer's Petition for Review, we must first consider Counsel's Petition to Withdraw. While Counsel filed an Anders brief along with his Petition to Withdraw, all that was required here was a no-merit letter.*fn4
Where an Anders brief is filed when a no-merit letter would suffice, the Anders brief must at least contain the same information that is required to be included in a no-merit letter. See Adams v. Pennsylvania Board of Probation and Parole, 885 A.2d 1121, 1123 (Pa. Cmwlth. 2005) (stating that "[i]f counsel provides an Anders brief to his client, the brief must contain, at a minimum, the list of issues raised by the parolee and an explanation of why those issues are without merit"); Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992) (explaining that because, under Turner, a no-merit letter requires less than an Anders brief, "an Anders brief must contain at a minimum, the list of issues raised by petitioner and explanation of why those issues are meritless that is required of a no-merit letter"). A no-merit letter must include an explanation of "the nature and extent of [counsel's] review and list each issue the petitioner wished to have raised, with counsel's explanation of why those issues [are] meritless." Commonwealth v. Turner, 518 Pa. 491, 494-95, 544 A.2d 927, 928 (1988).*fn5
If counsel has not satisfied the technical requirements of a no-merit letter, then this Court will deny counsel's request to withdraw and direct counsel to either file a renewed request with supporting documentation that complies with the technical requirements of a no-merit letter or an advocate's brief. Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). However, if counsel has satisfied the technical requirements of a no-merit letter, then this Court will conduct its own independent review to determine whether the petition for review is, in fact, without merit. Id.
It is important to highlight that "[t]he purpose of... a no-merit letter is to ensure that court-appointed counsel has discharged his or her duty to carefully assess any claims available to an indigent appellant." Presley v. Pennsylvania Board of Probation and Parole, 737 A.2d 858, 861-62 (Pa. Cmwlth. 1999). Furthermore, the "failure to discharge such duty will hinder our independent examination of the merits of the appeal." Id. at 862.
Here, Counsel has failed to satisfy the technical requirements of a no-merit letter. Although Counsel identifies the recalculation issue, which is the sole issue that Seilhamer raises in his Petition for Review, Counsel provides no analysis or explanation of that issue. Importantly, Counsel does not provide any of his reasoning for concluding that the recalculation issue is without merit. Instead, Counsel provides a six-sentence recitation of the facts, with a few citations to the record, and the conclusory statements that, "[b]ased on a review of the regulations and accompanying case law, [C]counsel could not locate any cases supporting Seilhamer's contention. Thus, [C]counsel believes any appeal is frivolous and without merit." (Counsel's Anders Br. at 5.) Given the lack of explanation regarding why Counsel believes the issue raised in Seilhamer's Petition for Review is without merit, Counsel has not fully discharged his duty in this case. This Court's ability to conduct its own independent review of the merits is impaired by Counsel's failure to provide supporting documentation, along with his Petition to Withdraw, that complies with the necessary legal requirements. Under these circumstances, we conclude that Counsel has failed to satisfy the technical requirements of a no-merit letter,*fn6 and, as such, we will not review the merits of Seilhamer's Petition for Review at this time.
Accordingly, Counsel's Petition to Withdraw is denied without prejudice, and Counsel has thirty days to either file an amended petition for leave to withdraw, along with a no-merit letter, or submit a brief on the merits of Seilhamer's Petition for Review.
NOW, May 19, 2010, the Petition for Leave to Withdraw as Counsel filed by Jonathan D. Ursiak, Esq., Assistant Public Defender of Luzerne County (Counsel), in the above-captioned matter is hereby DENIED without prejudice. Counsel is granted thirty days from the date of this order to either file a renewed petition for leave to withdraw as counsel, along with a no-merit letter, or submit a brief on the merits of Seilhamer's Petition for Review.
RENÉE COHN JUBELIRER, Judge
SENIOR JUDGE KELLEY
I respectfully dissent.
After recommitting Seilhamer as a convicted parole violator to serve his unexpired term of two months and twenty-five days, the Board set a new maximum term expiry of February 11, 2009. Because the maximum term of Seilhamer's confinement has expired, the instant appeal is moot. Taylor v. Pennsylvania Board of Probation and Parole, 746 A.2d 671 (Pa. Cmwlth. 2000); Lawson v. Pennsylvania Board of Probation and Parole, 524 A.2d 1053 (Pa. Cmwlth. 1987); Sands v. Pennsylvania Board of Probation and Parole, 396 A.2d 914 (Pa. Cmwlth. 1979). As a result, Attorney Ursiak's petition for leave to withdraw as counsel is also rendered moot.
However, even if it is assumed that the instant appeal should not be dismissed as moot, the instant matter should then be remanded to the Board for the appointment of new counsel. It is well settled that a parolee has the right to the effective assistance of counsel at each stage of the revocation proceedings. Commonwealth v. Fowler, 412 A.2d 614, 615 (Pa. Super. 1979), appeal after remand, 419 A.2d 34 (Pa. Super. 1980). This right to the effective assistance of counsel extends to the administrative appeal process with the Board, and in an appeal to this Court of the Board's denial of a request for administrative relief. Bowman v. Pennsylvania Board of Probation and Parole, 709 A.2d 945 (Pa. Cmwlth.), petition for allowance of appeal denied, 556 Pa. 696, 727 A.2d 1123 (1998); Larkin v. Pennsylvania Board of Probation and Parole, 555 A.2d 954 (Pa. Cmwlth. 1989).
In addition, Rule 3.1 of the Pennsylvania Rules of Professional Conduct provides, in pertinent part, that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.." Pa.R.P.C. 3.1. Thus, "[w]here, as here, a lawyer knows that his or her client's case lacks any legal merit, the lawyer is not only justified in refusing to represent the client but also mandated to do so. Peace v. Department of Public Welfare, [501 A.2d 1164 (Pa. Cmwlth. 1985)]." Adams v. Department of Public Welfare, 781 A.2d 217, 221 (Pa. Cmwlth. 2001).*fn7 More importantly, counsel for a parolee is specifically empowered to withdraw at the administrative appeal stage by submitting a letter to the Board where there is no basis in law or fact supporting such an appeal. Bowman.
In the instant case, present counsel*fn8 states that the sole claim that was raised in Mr. Seilhamer's counseled request for administrative relief that was submitted to the Board, and the sole claim that he raised in Mr. Seilhamer's counseled petition for review filed in this Court, is "frivolous and without merit". Counsel's Anders Brief at 5. And yet, as outlined above, prior counsel was required by the Rules of Professional Conduct to request leave to withdraw his representation of Mr. Seilhamer before the Board because the only claim that he raised on Mr. Seilhamer's behalf with the Board has been conceded to be "frivolous and without merit". Adams; Bowman.*fn9 Moreover, by failing to request leave to withdraw, and by only raising one admittedly frivolous claim in Mr. Seilhamer's request for administrative relief, prior counsel waived any and all other claims that Mr. Seilhamer could have raised to the Board with respect to the revocation of his parole. Pa.R.A.P. 1551; McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 537 Pa. 655, 644 A.2d 739 (1994).*fn10
There could have been no reasonable basis for prior counsel to engage in such a course of conduct in effectuating Mr. Seilhamer's rights. Such a course of conduct is a sine qua non to a finding of the ineffective assistance of Mr. Seilhamer's counsel. See, e.g., Scott v. Pennsylvania Board of Probation and Parole, 739 A.2d 1142, 1145 (1999) ("The standard of review for claims of ineffective assistance of counsel is well-settled in the Commonwealth. A criminal defendant sustains a claim of ineffectiveness of counsel by proving by a preponderance of the evidence: (1) that the underlying claim is of arguable merit; (2) that counsel's performance had no reasonable basis; and (3) that counsel's ineffectiveness worked to his prejudice..") (citations omitted).
Finally, because both prior counsel and present counsel work in the Luzerne County Public Defender's Office, as a general rule, present counsel is precluded from arguing the ineffectiveness of either his or prior counsel's representation of Mr. Seilhamer. Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382 (1998); Commonwealth v. Ciptak, 542 Pa. 112, 665 A.2d 1161 (1995). In addition, because prior and present counsel's ineffective assistance cannot be conclusively determined from the present state of the certified record of this case, the matter should be remanded to the Board for the appointment of new counsel. Green; Ciptak.*fn11
Accordingly, unlike the Majority, I would either dismiss the petition for review and the petition for leave to withdraw as moot or, in the alternative, remand the matter to the Board for the appointment of new counsel.
JAMES R. KELLEY, Senior Judge