Jоhn R. Mesko, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
No. 1751 C.D. 2019
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
January 25, 2021
HONORABLE RENEE COHN JUBELIRER, Judge
Submitted: July 17, 2020
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge; HONORABLE MICHAEL H. WOJCIK, Judge; HONORABLE ELLEN CEISLER, Judge
FILED: January 25, 2021
John R. Mesko (Mesko) petitions for review of the November 21, 2019 Order of the Pennsylvania Board of Probation and Parole1 (Board) that denied Mesko‘s Petition for Administrative Review (Petition) challenging the Notice of Board Decision mailed December 28, 2018 (December 28, 2018 Decision) declining to award Mesko credit for time spent at liberty on parole, recalculating Mesko‘s parole violation maximum date and rеparole eligibility date, and ordering Mesko to serve 24 months of backtime concurrently to serving 5 months and 13 days based on his recommitment as a convicted parole violator (CPV). On appeal,
I. BACKGROUND
The pertinent facts are as follows. On March 4, 2014, the Board paroled Mesko from his original sentence,2 which had a maximum date of December 5, 2016, and he was released on May 12, 2014. Mesko then applied for Interstate Compact Transfer to live in Ohio with his cousin, and Ohio accepted supеrvision and confirmed his arrival on August 28, 2014.
Relevant to this matter, on January 27, 2017, Mesko was arrested following new sets of criminal charges stemming from three separate incidents that occurred in 2016, prior to the expiration of his maximum sentence date. He also allegedly absconded from his Ohio residence in 2016, likewise prior to the expiration of his maximum sentence date. The Board issued a Warrant to Commit and Detain in which the Board noted Mesko‘s maximum sentence would be extended due to a period of delinquеncy and the new maximum would be computed upon the Board‘s final action. The Board notified Mesko of a detention hearing based upon
On October 2, 2018, Mesko pled guilty to and was convicted of one charge each of possession of drug paraphernalia, receiving stolen property, and theft by unlawful taking, all stemming from the 2016 charges. These convictions resulted in sentеnces of six months to one year, two to four years, and one to two years of incarceration, respectively, to be served concurrent to one another. Thereafter, the Board again issued a Warrant to Commit and Detain and provided Mesko with a Notice of Charges and Hearing reflecting these new convictions and sentences. Mesko waived his rights to counsel and a revocation hearing and admitted to the above convictions. The Board issued the December 28, 2018 Decision rеcommitting Mesko as a CPV and ordering Mesko to serve 24 months of backtime concurrently to the 5 months and 13 days of backtime ordered for the technical parole violation. (Certified Record (C.R.) at 169.) The Board declined to
Mesko filled out and signed an administrative remedies form on January 7, 2019, asserting three reasons for his administrative appeal. (Id. at 173.) On the form, Mesko checked the boxes claiming an error of law, a violation of constitutional law, and a recommitment challenge. (Id.) In the “Explanation” section of the form, Mesko alleged that he already had been penalized for absconding, that he already had completed his sentence following the previous maximum date of July 12, 2017, and that the Board did not have authority to alter a judicially imposed sentence and doing so was unconstitutional. (Id.) The administrative remedies form noted in italicized, small-point print at the bottom of the first page that Mesko ”may be entitled to counsel from the [p]ublic [d]efender‘s [o]ffice at no cost.” (Id. (emphasis added).) The envelope that Mesko
II. PARTIES’ ARGUMENTS
Mesko‘s sole argument on appeal is that he was denied his right to counsel during the administrative review process in violаtion of the Public Defender Act7 and Mesko‘s constitutional right to counsel, and he asks this Court to remand for the filing of an administrative appeal with assistance of counsel or an evidentiary hearing as to whether Mesko properly requested counsel for such proceedings and was impermissibly denied. Exhibit D to his petition for review filed with this Court is a letter response from the public defender‘s office responding to Mesko‘s “Letter Dated January 7, 2019.” (Ex. D to Petition for Review (Pet.).) In the letter, the public defender‘s office claimed that it “does not get involved at the Administrative Relief Stage.” (Id.) The letter further instructed Mesko that he “must . . . make that filing” himself and that if he was “unsuccessful, the office would represent [him] in any appeal to the Commonwealth Court.” (Id.) This
Although the above letter is not part of the certified record, the Board, importantly, concedes it “has no basis to believe that this document is not legitimate” and asserts that an evidentiary hearing on the matter is unnecessary as it has “no information which would challenge the claim that the letter sent to [Mesko] denying him counsel is anything other than legitimate.” (Board‘s Brief (Br.) at 8, 9 n.2.) The Board further asserts that it would not have objected had Mesko sought to supplement the record with the letter. (Id. at 8.) Instead, the Board argues that this claim was waived as a result of Mesko failing to raise it in his administrative appeal. The Board further claims that, if not waived, this claim fails because Mesko cannot show any prejudice stemming from the ineffectiveness of counsel under Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007) (applying the test enumerated in Strickland v. Washington, 466 U.S. 668 (1984)), as the issues he raises are meritless. (Board‘s Br. at 11.)
III. DISCUSSION
We begin with a reminder of our scope of review in parole revocation cases, which “is limited to a determination of whether necessary findings are supported by substantial evidence, [whether] an error of law was committed, or whether constitutional rights of the parolee were violated.” Johnson v. Pa. Bd. of Prob. & Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998) (emphasis added). Here, Mesko alleges his constitutional rights were violated as he was denied the assistance of
[a] party who proceeded before a Commonwealth agency under the terms of a particular statute shall not be precluded from questioning the validity of the statute in the appeal, but such party may not raise upon appeal any other question not raised before the agency (notwithstanding the fact that the agency may not be competent to resolve such question) unless allowed by the court upon due cause shown.
(a) Appellate jurisdiction petitions for review. Review of quasijudicial orders shall be conducted by the court on the record made before the government unit. Only questions raised before the government unit shall be heard or considered, except:
(1) Questions involving the validity of a statute.
(2) Questions involving the jurisdiction of the government unit over the subject matter of the adjudication.
(3) Questions that the court is satisfied the petitioner could not by the exercise of due diligence have raised before the government unit. If, upon hearing before the court, the court is satisfied that any such additional question within the scope of this paragraph should be raised, it shall remand the record to the government unit for further consideration of the additional question.
The court may in any case remand the record to the government unit for further proceedings if the court deems them necessary.
To determine whether Mesko waived the issue, we first examine the requirements for preserving such an issue for this Court‘s review. It is well settled that “indigent parolees are entitled to the assistance of counsel both at parole revocation hearings and in the prosecution of subsequent appeals as of right.” Blair v. Pa. Bd. of Prob. & Parole, 518 A.2d 899, 900 (Pa. Cmwlth. 1986). However, we note that there remain procedural prerequisites for a petitioner to hurdle. See Snipes v. Pa. Bd. of Prob. & Parole, 527 A.2d 1080 (Pa. Cmwlth. 1987). “[I]n order for such representation to be required[,] the parolee must request that legal counsel become involved.” Id. at 1081-82 (emphasis in original). In this respect, the Board has nо “duty [or] responsibility [to] appoint[] counsel for indigents appearing before it.” Passaro v. Pa. Bd. of Prob. & Parole, 424 A.2d 561, 564 (Pa. Cmwlth. 1981) (quoting Patterson v. Pa. Bd. of Prob. & Parole, 258 A.2d 693, 694-95 (Pa. Super. 1969)). Consistent with these principles, the Board notifies parolees in its various decisions and administrative remedies forms of their right to counsel, that counsel may be available from the county public defender‘s office, and that parolees are to submit requests for representation directly to the public defender‘s office. It is “incumbent on [the parolee] to promptly request . . . legal representation.” Snipes, 527 A.2d at 1082.
The failure to request counsel for an administrative proceeding may be fatal to preserving the issue for our review. See Madison v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1138 C.D. 2018, filed July 23, 2019), appeal denied (Pa., No. 440 WAL 2020, filed May 6, 2020). In Madison, we held that a petitioner‘s failure to allege either that any request for counsel had been made to the public defender‘s
In contrast, in the present case, while the Board argues that Mesko waived the issue regarding his request for counsel by not raising the issue during his administrative review, the Board also does not challenge the authenticity of the letter from the public defender‘s officе denying Mesko counsel and asserts that it would not have objected to supplementing the record with the letter. We find these admissions and the lack of dispute over these facts sufficient to consider the implications of this letter to the issue of waiver.
Mesko dated the administrative remedies form January 7, 2019. (C.R. at 173.) Although in his subsequent letter to the Board, Mesko claims to have filed the administrative remedies form with the Board on January 12, 2019, the envelope accompanying his administrative review form, which is in the certified rеcord, is
Additionally, the timing of Mesko‘s realization that hе had an entitlement to counsel from the public defender‘s office is important to this issue. It is clear that Mesko realized this entitlement at least by the time he filed his petition for review to this Court, as he included this claim in his initial petition for review. (See Pet. at 2.) The facts in the record indicate that Mesko was informed through both the Board‘s December 28, 2018 Decision and the administrative review form that he ”may be entitled to counsel from the public defender‘s office at no cost.” (C.R. at 170, 173 (emphasis added).) While these forms’ usе of “may” tends to suggest the existence of a potential right to counsel, it would be unjust to determine that they concretely informed Mesko of his absolute right to representation from the public
Accordingly, given the timing surrounding Mesko‘s request for counsel, his receipt of the letter from the public defender‘s office denying his request for counsel, his filing of the administrative remedies form, and when he became aware of both his right to counsel and the denial of his request, we are “satisfied th[at] [Mesko] could not by the exercise of due diligence have raised [this question] before the [Board].”
In light of these undisputed facts and the importancе of the right to counsel in this stage of proceedings before the Board, which is discussed more fully below, holding this issue is waived would be inconsistent with the right being asserted in this petition for review. We conclude that Mesko has sufficiently raised a question of “whether [his] constitutional rights . . . were violated” to permit this Court to
We turn now to the issue of denial of counsel to an indigent petitioner in an administrative appeal. The Board asserts that this issue is properly characterized as an ineffective assistance of cоunsel claim, which the Board argues is without merit because Mesko cannot show prejudice stemming from any claimed ineffectiveness. We disagree.
The Sixth Amendment to the United States Constitution provides, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”
This commitment to providing indigent defendants with the constitutional right of representation of counsel throughout their criminal appeals and any administrative proceedings before the Board is reflected statutorily in Pennsylvania in Section 6 of the Public Defender Act, which requires that the public defender provide legal counsel in cases involving “[p]robation and parole proceedings and revocation thereof.”
In the present case, the Board seeks aрplication of the ineffective assistance of counsel test set forth in Strickland, explaining that Mesko cannot prevail because he is unable to show any prejudice stemming from the claimed ineffectiveness. However, we disagree that prejudice must be shown in this case.
Though the Pennsylvania Supreme Court “has long recognized that the Strickland test is the same test for ineffectiveness as prevails under the Pennsylvania Constitution,” Commonwealth v. Bond, 819 A.2d 33, 41-42 (Pa. 2002), the Court recently has recognized that there exist “certain, limited circumstances where prejudice is so likely that the cost of litigating the question of prejudice is unnecessary,” Diaz, 226 A.3d at 1008 (quoting United States v. Cronic, 466 U.S. 648, 658-59 (1984)). The “[m]ost obvious, of course, is the complete denial of counsel.” Cronic, 466 U.S. at 659. The United States Supreme Court issued its opinion in Cronic on the same day that it decided Strickland, “recogniz[ing] an exception to Strickland‘s general rule requiring proof of prejudice to prevail on a claim of ineffective assistance of counsel.” Diaz, 226 A.3d at 1008. Diaz involved an indigent defendant who was constructively denied counsel due to his inability to understand critical portions of his criminal trial and communicate with his attorney during these proceedings, despite that he was actually represented by counsel at the time. Id. at 1010. The Court held that it was unnecessary to “inquir[e] into whether Diaz suffered prejudice because of this violation” and affirmed the Superior Court‘s judgment ordering a new trial. Id. at 1011.
If prejudice can be presumed even where an indigent defendant is actually represented by counsel, it follows that the complete and actual denial of any counsel at a proceeding implicаting the due process requirement of fundamental fairness, such as the one presented here, leads to the same conclusion: that no specific showing of prejudice is required. To hold that no prejudice results from the complete denial of counsel to an indigent parolee at such a proceeding—or even that such a parolee must litigate this issue in order to realize his constitutional and statutory right to counsel—is akin to “forc[ing] [Mesko] to run th[e] gantlet of a preliminary showing of merit” in any other criminal appeal without the representation of a trained advocate. Douglas, 372 U.S. at 357. Such a holding amounts to “discrimination against the poor” in violation of the Fourteenth Amendment. Finley, 481 U.S. at 554 (citing Douglas, 372 U.S. at 358). Therefore, where an indigent parolee properly requests representation of counsel from the public defender‘s office for an administrative review of a parole revocation decision and is impermissibly denied, as occurred here, prejudice is presumed. For these reasons, we hоld that remand is proper to allow Mesko the opportunity to pursue administrative review with the assistance of counsel to which Mesko is entitled.
Accordingly, we vacate the Board‘s Order and remand this matter for further proceedings to provide Mesko with the opportunity to file his administrative review with the assistance of counsel.
RENEE COHN JUBELIRER, Judge
NOW, January 25, 2021, the Order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is vacated, and we remand this matter for further proceedings to provide Petitioner John R. Mesko with the opportunity to file his administrative review with the assistance of counsel.
Jurisdiction relinquished.
RENEE COHN JUBELIRER, Judge