534 A.2d 589 | Pa. Commw. Ct. | 1987
Opinion by
James A. Hughes (Petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief.
On August 17, 1985, Petitioner was declared delinquent by the Board for moving from his approved residence without notifying his parole officer. Subsequently, he was arrested in Westmoreland County for driving under the influence of alcohol. Released on bond, he was again arrested on October 15, 1985 for driving under the influence, unsworn falsification to authorities, false reports to law enforcement officers, receiving stolen property, and conspiracy. On November 27, 1985, Petitioner was charged in Greene County with two counts of theft by unlawful taking, alleged to have occurred in September 1985.
Petitioner pleaded guilty on March 3, 1986 to the Greene County theft-by-unlawful-taking charges, and received concurrent prison terms of 21/4-to-5 years effective March 3, 1986. In Westmoreland County, on June 16, 1986 Petitioner pleaded guilty to unauthorized use of a motor vehicle, and was sentenced to llVfoto-23 months, effective July 2, 1986. Additionally, on a guilty plea to driving under the influence, he was sentenced to 48 hours-to-231/4 months, and on a guilty plea to theft by deception he received a 6-to-12 month sentence, both effective July 2, 1986.
Consequently, a full Board hearing was held on September 18, 1986, at which Petitioner was present and represented by counsel. By notice dated October 21, 1986 and mailed to Petitioner on October 30, 1986, the Board recommitted Petitioner for 48 months total back-
Petitioner timely filed a request for administrative relief with the Board pursuant to 37 Pa. Code §71.5(h). In the interim, Petitioner was notified by the Board, by a decision mailed December 22, 1986, that on December 17, 1986 the Board had modified his recommitment with regard to total time to be served as a TPV and CPV, resulting in an extension of his maximum termination date of sentence from April 11, 1990 to October 1, 1990. By decision dated and mailed January 14, 1987, the Board denied petitioners request for administrative relief. Petitioners timely petition for review to this Court followed.
Petitioner presents four issues on this appeal: (1) whether the Board erred in recommitting him after a parole revocation hearing at which no evidence as to his sentence status was introduced; (2) whether, in computing Petitioners backtime, the Board erred in not crediting him for time served on parole in good standing; (3) whether the Board denied Petitioner due process by modifying his parole revocation to enhance his maximum termination date of sentence without affording him another hearing; and (4) whether Petitioner was de
It is beyond dispute that a parolee in a revocation proceeding has a right to effective assistance of counsel. Vereen v. Pennsylvania Board of Probation and Parole, 101 Pa. Commonwealth Ct. 63, 515 A.2d 637 (1986); LaCourt v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 384, 488 A.2d 70 (1985). In order to establish a right to relief due to ineffective counsel, a parolee has the burden of showing two things: (1) counsel made errors of such a serious nature that counsel was not operating as “counsel” as guaranteed by law; and (2) the errors were so serious that a reasonable probability exists that but for counsel’s errors, the outcome of the proceeding would have been different. LaCourt; Vereen.
Here, Petitioner alleges that his counsel was ineffective at the parole revocation hearing in that counsel failed to introduce Petitioner’s “sentence status with
These arguments are unpersuasive. Petitioner does not allege anything that would show that his counsels failure to introduce Petitioners sentence status with regard to his backtime would have affected the outcome of the revocation hearing. In other words, whatever the status of Petitioners various reparoles, such information would only be relevant to his maximum termination date, which, if it was in error, should have been the subject of a separate request for administrative relief after it had been determined by the Board. As to the second contention, Petitioner has failed to allege that any mitigating circumstances existed or, if they existed, that his counsel should have been aware of them. Accordingly, petitioners claim of ineffective assistance of counsel must fail.
Affirmed.
Order
Now, December 11, 1987, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
This Courts scope of review is limited to determining whether constitutional rights were violated, errors of law were committed, or findings of feet were unsupported by substantial evidence. Seyler v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 302, 509 A.2d 438 (1986).