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Ramirez v. Pennsylvania Board of Probation and Parole11/17/2005
oner was still being held in relation to the sentences for his failure to pay child support. In fact, a Board hearing examiner conducted Petitioner's parole revocation hearing at the Berks County Prison on this same date. Petitioner was represented at this hearing by a public defender from Berks County. Richard Levin, a parole agent, represented the interests of the Board at the hearing.
Agent Levin admitted into evidence, without objection, certified copies of the criminal complaints, criminal informations, guilty pleas and sentencing orders relating to the 1998 charges. Petitioner presented no evidence on his own behalf and did not dispute the summary of his most recent charges and convictions as set forth by Agent Levin. Following the hearing, the hearing examiner recommended that the Board recommit Petitioner as a technical parole violator to serve twenty-four months backtime. The Board accepted the recommendation of the hearing examiner. By notice mailed February 9, 2005, the Board recommitted Petitioner as a convicted parole violator to serve twenty-four months backtime.
By letter dated February 10, 2005, and received by the Board on February 17, 2005, Petitioner, pro se, requested administrative relief alleging that the calculation of his backtime was "INCORRECT" and "EXCESSIVE." (Certified Record at 97). Petitioner also requested that the Board appoint him an attorney. By letter mailed March 10, 2005, the Board denied Petitioner's request for administrative relief. As to Petitioner's backtime, the Board indicated that the twenty-four months was within the aggregate presumptive recommitment range for his convicted offenses under its regulations. The Board noted that it was without authority to appoint Petitioner an attorney.
Petitioner thereafter filed a pro se petition for review with this Court, alleging that the Board "erred as a matter of law to compute correctly the time which is owed to petitioner. Respondent erred by failing to give petitioner credit against his parole violation backtime and against his maximum sentence." By order dated April 25, 2005, this Court appointed Counsel to represent Petitioner. The Board thereafter forwarded a copy of the certified record to Counsel.
Upon review of the record, Counsel determined that no grounds for appeal existed and that Petitioner's appeal was frivolous. Counsel filed a petition for leave to withdraw with this Court. Accompanying Counsel's petition was a letter to Petitioner dated July 15, 2005, in which Counsel detailed the reasons why he found that the appeal lacked merit and was frivolous. In this letter, Counsel identified two issues which he believed were properly raised by Petitioner and properly before this Court. The first issue consisted of whether the backtime imposed by the Board was consistent with the Board's own regulations. The second issue consisted of a determination as to when Petitioner will begin to serve this backtime.
With respect to the first issue, Counsel indicated that the twenty-four months backtime imposed by the Board was within the presumptive range applicable to Petitioner's multiple violations of the Drug Act. With respect to the second issue, Counsel, citing to Section 21.1 of what is commonly known as the Parole Act, indicated that backtime cannot be served concurrently with a sentence imposed on a new offense; rather, such backtime must be served consecutively. Hence, Counsel concluded that Petitioner's claims for relief had no basis in law or in fact and were, therefore, frivolous.
In Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), our Supreme Court set forth the proper procedure to be followed when court-appointed counsel seeks to withd
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