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Ramirez v. Pennsylvania Board of Probation and Parole11/17/2005
raw from representation on the basis that issues raised by the petitioner are frivolous. This Court has interpreted Turner as requiring counsel to file a no-merit letter containing (1) the nature and extent of counsel's review; (2) the issues the petitioner wishes to raise; and (3) counsel's analysis in concluding that the petitioner's appeal is frivolous. Vandermark v. Pennsylvania Board of Probation and Parole, 685 A.2d 628 (Pa. Cmwlth. 1996); Epps v. Pennsylvania Board of Probation and Parole, 565 A.2d 214 (Pa. Cmwlth. 1989).
Counsel must satisfy these requirements before we may consider any request to withdraw an appearance. Vandermark. Moreover, in reviewing a petition to withdraw, this Court must make an independent evaluation of the proceedings before the Board to determine whether the petitioner's appeal is wholly frivolous. Id. A wholly frivolous appeal is one that is completely devoid of points that might arguably support an appeal. Congo v. Pennsylvania Board of Probation and Parole, 522 A.2d 676 (Pa. Cmwlth. 1987). If the petitioner's appeal is in fact frivolous, counsel's petition to withdraw will be granted.
With respect to the issue of backtime and the presumptive ranges, Counsel correctly noted in his letter that the twenty-four months backtime imposed by the Board was within the applicable presumptive range. As to the 1998 charges, Petitioner was convicted of three counts of delivery of a controlled substance and one count of possession with intent to deliver. Under the Drug Act, each of these convictions constitutes a felony punishable by a maximum term of incarceration of fifteen years. See 35 Pa. C.S. §780-113(a)(30), (f)(1). Pursuant to the Board's regulations, the applicable presumptive range for a single violation of the Drug Act involving a felony with a statutory maximum of fifteen years is twenty-four months to thirty-six months. Thus, the Board's imposition of twenty-four months backtime is within the presumptive range.
We have previously indicated on numerous occasions that the Board is afforded discretion in imposing backtime and we will not interfere with the Board's discretion as long as the amount of backtime imposed is within the applicable presumptive range. See Bradley v. Pennsylvania Board of Probation and Parole, 587 A.2d 839 (Pa. Cmwlth. 1991); Ward v. Pennsylvania Board of Probation and Parole, 538 A.2d 971 (Pa. Cmwlth. 1988); Congo v. Pennsylvania Board of Probation and Parole, 522 A.2d 676 (Pa. Cmwlth. 1987). Thus, we cannot say that the Board erred in denying Petitioner's appeal in this regard.
We now turn to the second issue. Petitioner describes this issue as one of credit in his petition for review and Counsel describes it as an issue of proper timing of service of his backtime in his Turner letter. Nevertheless, Petitioner failed to raise this issue in his request for administrative relief. Nor did Petitioner raise this issue at his revocation hearing. In fact, Petitioner's request for administrative relief raises a single substantive issue concerning whether or not the Board's imposition of the twenty-four months backtime was incorrect or excessive. Further, Petitioner presented no testimony or exhibits at his parole revocation hearing. The law is well settled that issues not raised before the Board are waived and will not be addressed by this Court. See McDaniel v. Pennsylvania Board of Probation and Parole, 587 A.2d 42 (Pa. Cmwlth. 1991); Newsome v. Pennsylvania Board of Probation and Parole, 553 A.2d 1050 (Pa. Cmwlth. 1989).
After an independent review of the record, we agree that Petitioner's appeal is wholly frivolous. Further, as Counsel's no merit letter sets forth the extent of Counsel's review, the iss
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