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Seilhamer v. Pennsylvania Board of Probation and Parole

May 19, 2010

ZANE J. SEILHAMER, JR., PETITIONER
v.
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.

OPINION

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 ...


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