553 A.2d 91 | Pa. Commw. Ct. | 1988
Opinion by
Counsel for Petitioner, Fred Mangone (Mangone), has filed a petition for leave to withdraw as counsel for Petitioner on the basis that Petitioner’s appeal is frivolous.
This Court held in Craig v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 586, 502 A.2d 758 (1985), that where counsel seeks leave to withdraw on grounds that an appeal is frivolous, counsel must petition the court on the basis that the appeal is frivolous; file an advocate’s or Anders brief and serve a copy thereof along with a copy of counsel’s petition upon
On September 6, 1982, Mangone was paroled from two four to twenty year concurrent sentences as a result of his convictions for robbery in Allegheny County. He was arrested on January 30, 1984 on new criminal charges and released the same day on his own recognizance. Mangone failed to report the arrest to the parole supervision staff who received notice of the arrest on February 3, 1984 through the Allegheny County Bail Agency. On February 8, 1984, the date Mangone failed to appear for preliminary hearing, the Pennsylvania Board of Probation and Parole (Board) lodged a detainer warrant against Mangone and declared him delinquent effective that date.
On March 21, 1984, Mangone was arrested in Fayette County on additional criminal charges.
A full hearing was held on January 21, 1988 after which the Board ordered and directed that Mangone be recommitted as a technical parole violator to serve twelve months on backtime for violation of his parole conditions and thirty months as a convicted parole violator. A new reparóle date was set for July 21, 1997 and the maximum term expiration date was extended to December 24, 2002. Mangone subsequently filed an application for administrative relief which was denied on April 19, 1988. Thereafter, Mangone appealed to this Court.
Mangone contends that the Board’s decision should be reversed since the January 21, 1988 hearing was not held within the one hundred and twenty days as required by 37 Pa. Code §71.4; the technical violations are unsupported by substantial evidence; the Board’s allocation of time spent in custody toward his new Allegheny County sentence is incorrect; and the thirty months backtime imposed for the new convictions constitute an abuse of discretion.
Mangone, in support of his timeliness claim, contends that the transcript of the September 11, 1984 hearing, at which Mangone requested a continuance, was fabricated and that his counsel at the time was ineffective in raising this issue in Mangone’s earlier appeal before this Court. Mangone not only fails to offer any evidence to support his contention but in fact signed a written request for a continuance at the hearing. However, as Mangone never raised the alleged fabrication charges or ineffective assistance of counsel at the January 21, 1988 hearing, they are waived and cannot be raised before this Court. Vereen v. Pennsylvania Board of Probation and Parole, 101 Pa. Commonwealth Ct. 63, 515 A.2d 637 (1986); Lantzy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 626, 477 A.2d 18 (1984).
The record establishes that Mangone’s technical parole violations are supported by substantial evidence. The Board charged Mangone with violating conditions 3(B), 5(A) and 5(B) which required him to maintain regular contact with parole supervision and to notify staff of an arrest within 72 hours; prohibited possession, sale or use of narcotic drugs; and prohibited owning or possessing
Mangone next asserts that he did not know that contraband was in the car driven by him and therefore did not have possession of the weapon and narcotic drugs found in the car. The police report made at the time of arrest shows that a knife and marijuana were found in the car. This Court has held that evidence of possession or constructive possession is sufficient to serve as a basis for parole revocation. Nickens v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 313, 502 A.2d 277 (1985). Therefore, Mangone clearly violated conditions 5A and 5B of his parole.
From March 21, 1984, the date of the Board warrant, to January 21, 1988, Mangone was in custody. The Board allocated this time toward Mangone’s new sentence. However, Mangone claims that this time should have been credited to his original sentence. Since Mangone was unable to satisfy bail requirements on his new criminal charges, the time spent in custody was properly credited to his new sentence. Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980); Laguines v. Pennsylvania Board of Probation and Parole, 105 Pa. Commonwealth Ct. 300, 524 A.2d 541 (1987).
Finally, Mangone- contends that the imposition of thirty months backtime was an abuse of discretion by the Board. The presumptive range for a conviction of bur
Accordingly, this Court finds that the petition for review is frivolous, and the petition for leave to withdraw filed by counsel for Petitioner is therefore granted. The order of the Board is affirmed.
Order
And Now, this 25th day of November, 1988, the petition for leave to withdraw filed by counsel for Petitioner is granted, and the order of the Board is affirmed.
The present action is unaffected by the recent decision of the Pennsylvania Supreme Court in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), which held that an attorney may be permitted to withdraw after filing a “no-merit” letter. The present petition for leave to withdraw was filed prior to the Supreme Court’s decision in Turner.
Mangone filed a pro se brief on July 19, 1988.
Mangone produced fake owner’s and registration cards for the automobile that he was driving. A search of the automobile revealed a stiletto knife under the driver’s seat and thirty-nine plastic bags containing marijuana in the trunk.