245 A.3d 1174
Pa. Commw. Ct.2021Background
- Mesko was paroled in 2014 and later incurred new criminal charges and an alleged absconsion in 2016 while still under supervision.
- The Board recommitted him in 2017 as a technical parole violator for six months (he served ~5 months, 13 days) and set a new maximum that remained subject to change.
- After convictions in October 2018 on several 2016 charges, the Board issued a December 28, 2018 decision recommitting Mesko as a convicted parole violator (CPV), ordering 24 months of backtime, denying credit for time at liberty, and recalculating parole dates.
- Mesko submitted an administrative remedies form dated January 7, 2019; he also sent a contemporaneous request for counsel to the county public defender.
- The public defender responded (dated Jan. 11, 2019) that it "does not get involved at the Administrative Relief Stage" and would only represent him on appeal to Commonwealth Court; the Board does not dispute the letter’s authenticity.
- The Board denied Mesko’s administrative appeal (Nov. 21, 2019). The Commonwealth Court vacated the Board’s order and remanded so Mesko can pursue administrative review with assistance of counsel, concluding he was impermissibly denied counsel and prejudice is presumed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mesko waived the right to challenge denial of counsel by not raising it in his administrative appeal | Mesko says he timely requested counsel from the public defender and was affirmatively denied, and therefore could not, by due diligence, raise the denial to the Board | Board contends Mesko waived the claim by failing to raise it in his administrative appeal | Court: Not waived — timing and the public defender’s denial meant Mesko could not have raised it before the Board (Pa.R.A.P. 1551(a)(3)) |
| Whether denial of counsel at the administrative-review stage requires a showing of prejudice | Mesko argues denial of counsel violated his constitutional and statutory rights and that prejudice should be presumed | Board treats claim as ineffective assistance and argues Mesko must prove prejudice under Strickland and cannot do so | Court: Prejudice presumed for an actual/complete denial of counsel (Cronic/Diaz reasoning); remand for administrative review with counsel |
Key Cases Cited
- Gideon v. Wainwright, 372 U.S. 335 (right to counsel in criminal prosecutions)
- Douglas v. California, 372 U.S. 353 (indigent defendants entitled to counsel on appeals of right)
- United States v. Cronic, 466 U.S. 648 (certain denials of counsel permit presumption of prejudice)
- Strickland v. Washington, 466 U.S. 668 (general ineffective-assistance test)
- Commonwealth v. Diaz, 226 A.3d 995 (Pa. 2020) (recognizes Cronic exception where prejudice presumed)
- Bronson v. Pa. Bd. of Prob. & Parole, 421 A.2d 1021 (Pa. 1980) (right to counsel extends to parole administrative proceedings and appeals)
- Blair v. Pa. Bd. of Prob. & Parole, 518 A.2d 899 (Pa. Cmwlth. 1986) (indigent parolees entitled to counsel for revocation and appeals)
- Snipes v. Pa. Bd. of Prob. & Parole, 527 A.2d 1080 (Pa. Cmwlth. 1987) (parolee must request counsel for representation to be required)
- McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993) (issues not raised before the Board are waived)
- Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002) (discusses Strickland as Pennsylvania standard)
- Johnson v. Pa. Bd. of Prob. & Parole, 706 A.2d 903 (Pa. Cmwlth. 1998) (scope of review in parole revocation appeals)