87 Pa. Commw. 384 | Pa. Commw. Ct. | 1985
Opinion by
This is an appeal by Jose LaCourt who petitions-for review of an order of the Pennsylvania Board of Probation and Parole (Board), dated February 22,
LaCourt was originally sentenced in July 1963 by Judge Blanc of the Court of Common Pleas of Philadelphia County .to a term of two and one-half to twenty years following his conviction for .Second Degree Murder.
LaCourt was transferred from Philadelphia County Prison to SCI-Graterford on November 21, 1983. On January 5, 1984, he was afforded a parole Violation/Revocation Hearing before a Board hearing examiner. As the hearing was held at .SCI-Graterford, in Montgomery County, LaCourt was represented by ■an attorney from the Montgomery County Public Defender’s Office.
In this appeal, LaCourt challenges the timeliness of his parole hearings, the effectiveness of his hearing counsel, and the Board’s exercise of discretion regarding the backtime it imposed. We shall address these issues seriatim,
LaCourt’s initial contention is that his parole Violation/Revocation Hearing of January 5, 1984 was held beyond 120 days from his Preliminary Hearing, in violation of 37 Pa. Code §71.2(11), and ¡beyond 120 days of his May 16, 1983 convictions, in violation of 37 Pa. Code §71.4(2). As the hearing was untimely as to both the technical parole violations and .the new convictions, he contends the Board violated his due process rights entitling him to a dismissal of the parole violations. However, on December 7, 1982, LaCourt waived his Preliminary Hearing on the technical violations and specifically requested that the Board continue his parole Violation and Revocation Hearings until his pending criminal charges were disposed of. In the event of a conviction, he also requested a postponement of his parole hearings until he was sentenced on the new convictions. This request
LaCourt acknowledges that he requested a continuance but argues that it should not be given effect as it was not knowingly or intelligently made. He bases this argument on his claim that his attorney never informed him that the time which elapsed from his request until disposition of the pending criminal charges would not run against the Board for timeliness purposes.
It is well-settled in Pennsylvania law that while an indigent parolee facing revocation of his or her parole is entitled to appointed counsel to represent him before the Board, Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), an indigent parolee does not have the right ¡to appointed counsel of his or her choice. Cf. Commonwealth v. Coleman, 482 Pa. 581, 394 A.2d 474 (1978); Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976). A parolee’s right to counsel guarantees only that an indigent parolee be provided with counsel who is competent and who represents his best interests in an effective manner. Cf. Commonwealth v. Fowler, 271 Pa. Superior Ct. 138, 412 A.2d 614 (1979), appeal after remand 275 Pa. Superior Ct. 544, 419 A.2d 34 (1980). This right does not entitle a parolee to the best or most experienced defense counsel available. Cf. Coleman, 482 Pa. at 587, 394 A.2d at 477 (notion that a defendant might have been able to procure counsel who had more experience in handling homicide cases did not render
Since we have held that LaCourt’s Montgomery ■County attorney was not per se ineffective, LaCourt bears the burden of showing counsel’s ineffectiveness so as to entitle him to relief. Commonwealth v. Shore,
LaCourt’s next contention is that the Board arbitrarily and capriciously abused its discretion when it required him to serve his entire unexpired term in prison as a result of the new parole violations. In Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 49, 484 A.2d 413 (1984), we stated that we would not disturb the Board’s discretion in imposing baektime for parole violations where there is substantial evidence in the record to support the Board’s finding that the parolee violated parole and where the baektime imposed is within the Board’s published presumptive ranges. Id. at 57, 484 A.2d at 417-418.
There is clearly substantial evidence in the record to support the Board’s finding that LaCourt violated
LaCourt also contends that the Board’s aggregation of the presumptive rangos -for his new convictions constitutes an abuse of discretion where all the new convictions arose out of the -same criminal conduct. As a result, his circumstances -are distinguishable from -those of the parolee in Corley v. Pennsylvania Board of Probation and Parole, 83 Pa.Commonwealth
For the reasons set forth, we must affirm the Board’s order.
Oedeb
And Now, the 5th day of February, 1985, the Order of the Pennsylvania Board of Probation and Parole at Parole No. 9836-F, dated February 22, 1984, is hereby affirmed.
Act of June 24, 1939, P.L. 872, as amended, formerly 18 P.S. §4701, repealed by the Act of December 6, 1972, P.L. 1482. A similar provision is now found in Section 2502(b) of the Grimes Code, 18 Pa. C. S. §2502(b).
The record presents the following chronology of LaCourt’s parole history up to October 13, 1982.
Parole granted 9/11/66
Recommitted as technical parole violator 10/28/68
Reparole granted 9/2/70
Recommitted as technical parole violator 1/29/71
Reparole granted 8/16/71 Recommitted as convicted
parole violator Reparole granted 6/12/73 7/19/74
Recommitted as convicted parole violator 8/12/82
Reparole granted 10/13/82
The criminal complaint alleged that during the evening of November 24, 1982, LaCourt followed a 70 year old woman into the ladies’ room of Church’s Fried Chicken. There, he robbed the woman of $300 in cash, removed her clothes and attempted to have sexual relations with her. The victim identified LaCourt at the scene at which time he was arrested and charged with Rape (18 Pa. C. S. §3121), Robbery (18 Pa. C. S. §3701), Aggravated Assault (18 Pa. C. S. §2702), Simple Assault (18 Pa. C. S. §2701), Involuntary Deviate Sexual Intercourse (18 Pa. C. S. §3123), Terroristic Threats (18 Pa. C. S. §2706), Theft (18 Pa. C. S. §3921), and Receiving Stolen Property (18 Pa. C. S. §3925)
See Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32, 424 A.2d 561 (1981).
See Section 21.1(a) of the Act of August 6, 1941 (Parole Act), P.L. 861, as amended, 61 P.S. §331.21a(a).
Our scope of review of a Board recommitment order is limited to a determination of whether necessary findings are supported by substantial evidence, whether the order is in accordance with law, and whether any constitutional rights of the parolee have been violated. Section 704 of the Administrative Agency Law, 2 Pa. O. S. §704; Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).
The Board argues that LaCourt waived this issue by failing to argue it before the Board in his administrative appeal. See Section 703(a) of the Administrative Agency Law, 2 Pa. C. S. §703(a) ; Lantey v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 629, 477 A.2d 18 (1984). Our review of the record satisfies us that the issue was adequately preserved for our review;.
37 Pa. Code §71.5 (e) provides that “reasonable continuances for any hearing may be granted upon cause shown.”
37 Pa. Code §75.2 lists the presumptive ranges for LaCourt’s new convictions as follows:
Offense Categories: Presumptive Ranges:
Simple Assault 9 months to 15 months
Terroristic Threats 6 months to 12 months
Rape (Forcible) 30 months to 48 months
Robbery 24 months to 40 months
Involuntary Deviate
Sexual Intercourse 27 months to 40 months
Total Applicable
Presumptive Range: 96 months to 155 months