87 Pa. Commw. 356 | Pa. Commw. Ct. | 1985
Opinion by
Petitioner, Thomas O’Hara (O’Hara), petitions for review of an Order of the Pennsylvania Board of Probation and Parole (Board), dated March 5, 1982, which recommits him to prison as a convicted parole violator.
During the early morning hours of November 8, 1979, O’Hara and a friend, James Knox, went to the
O’Hara was charged with Murder,
O’Hara requested a full Board hearing which was originally scheduled for June 17, 1980 at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh). O’Hara was personally notified of this hearing on June 10, 1980. The Board continued the June
On September 9, 1981, O’Hara again appeared in Erie County Common Pleas Court and was convicted of the charge of Former Convict Not to Own a Firearm. O’Hara subsequently received a sentence of ten to twenty years on the Third Degree Murder conviction and a concurrent sentence of two and one-half to five years on the firearm conviction.
O’Hara wrote the Board on September 21, 1981 asking that the Board correct the “injustice” done to him, when the Board refused to continue the July 22, 1980 Revocation Hearing and proceeded to hold that hearing in absentia. The Board treated 0 ’Hara’s letter as a request for administrative relief pursuant to 37 Pa. Code §71.5 (h) which it granted by providing O’Hara a re-hearing for the April 1980 convictions.
Before this Court, O’Hara raises two assignments of error on the part of the Board.
In reviewing a parole recommitment order of the Board, our scope of review is limited to a determination of whether the Board’s order is supported by substantial evidence, is in accordance with law, and
O’Hara bases his contention that the Board violated his right to counsel upon our decision in Brown v. Pennsylvania Board of Probation and Parole, 70 Pa. Commonwealth Ct. 597, 453 A.2d 1068 (1982). In Brown, we held that the Board proceeds at its peril where it conducts a parole hearing for a parolee entitled to counsel who is unrepresented and expresses a desire to have counsel. Id. at 600, 453 A.2d at 1070. O’Hara also points to our decision in Ruza v. Pennsylvania Board of Probation and Parole, 73 Pa. Commonwealth Ct. 483, 458 A.2d 662 (1983), as further support of his contention. O’Hara’s basic argument is that Brown and Ruza require the Board to grant every request of a parolee for a continuance to obtain counsel or secure the presence of counsel. This is an incorrect reading of those decisions and O’Hara’s reliance upon them is misplaced.
It is now beyond question that under Pennsylvania law a parolee facing revocation of his or her parole is entitled to the assistance of counsel at hearings before the Board. Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973). It is also well-settled that the Board is not obligated to provide counsel for parolees nor does it have the power to appoint counsel for indigent parolees. Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Com
While the right of a parolee, facing revocation of parole solely on account of new criminal convictions, to assistance of counsel at the Board’s revocation hearing does not always rise to the magnitude of a constitutionally-mandated right, Gagnon v. Scarpelli, 411 U.S. 778, 790-791 (1973); Coades v. Pennsylvania Board of Probation and Parole, 84 Pa. Commonwealth Ct. 484, 480 A.2d 1298 (1984), the Board must take reasonable steps to ensure that the parolee has an ample opportunity to retain counsel of his or her choice or secure the services of the public defender. Brown. Those reasonable steps include the granting of reasonable continuances to the parolee for the purpose of obtaining the services of counsel. Id. The question posed by O’Hara’s challenge to the Board’s actions is at what point may the Board refuse a parolee further continuances to obtain counsel and proceed with its revocation hearing without violating due process? We are of the opinion that due process considerations do not require the Board, or any other administrative agency, to grant a party a never-ending series of continuances for the purpose of obtaining counsel. See Williams v. Unemployment Compensation Board of Review, 86 Pa. Commonwealth Ct. 251, 484 A.2d 831 (1984) (denial of continuance to claimant to secure presence of counsel at unemployment compensation hearing).
It is a well-settled principle of administrative law that the power to grant or refuse continuances is an inherent power of an administrative agency which is subject to review only upon a showing of an abuse of discretion. Brown, 70 Pa. Commonwealth Ct. at 600, 453 A.2d at 1070; Roche v. State Board of Funeral
We acknowledge that the parolee has an undeniably significant interest in obtaining the assistance of . counsel at a Board revocation hearing. The parolee, after all, stands to lose the limited liberty which parole affords should the Board determine that he violated-parole. In recognition of that significant interest, it is axiomatic that the Board must provide parolees with ample time to procure the services or
We recognize that there are other competing interests which may eventually outweigh a particular parolee’s interest in a further continuance of his parole revocation hearing to obtain counsel. The Board, for example, has an interest in resolving pending parole violations in a timely and efficient manner. Other parolees who have parole violations pending have an interest and a right to a timely disposition of their matters. Morrissey v. Brewer, 408 U.S. 471 (1972). Where a parole hearing is continually rescheduled, it clogs the Board’s hearing process and thereby delays hearings for other parolees awaiting disposition of their alleged parole violations. Finally, the Bureau of Corrections (Bureau) has an interest in having the status of accused parole violators finalized so that they may be properly classified by the Bureau and assigned to an appropriate facility. Until the Board acts on a parolee’s violations, the Bureau keeps the parolee in the status of a parole violator pending (PVP). While the parolee is in PVP status, he is unable to get off the quarantine block at the institution, unable to get a prison job at the institution and is not eligible to participate in rehabilitation programs at the institution. Also, the Bureau cannot transfer an inmate in PVP status to another correctional facility other than a regional classification center.
In order for the Board to properly weigh the various competing interests, the parolee bears some responsibility to provide the Board with sufficient information upon which the Board may determine the reasonableness of the continuance request. Where the parolee is unrepresented, that information should include what steps the parolee has taken, or is in the process of taking, to procure the services of counsel. The Board should also ensure that an unrepresented parolee has the address of the local public defender to whom the parolee may apply for representation if indigent. The Board’s regulations require that each parolee be provided with this information prior to the scheduled hearing. 37 Pa. Code §71.4(3) (ii). If the parolee is represented by counsel and counsel is unable to attend the hearing, the parolee and counsel have an obligation to the Board to provide the reasons for counsel’s absence and an approximate time when counsel and the parolee will be able to proceed. In close cases, the Board should give the parolee the benefit of the doubt and grant additional time to procure the services or presence of counsel. Of course, any delay attributed to the parolee being granted a continuance to obtain counsel or due to counsel’s unavailability does not run against the Board for timeliness purposes. 37 Pa. Code §71.5 (i).
Our review of the record satisfies us that the Board provided 0 ’Hara with more than ample time to secure the presence of his counsel. The February 17, 1982 hearing was nearly twenty-two months after O’Hara’s Murder conviction and twenty months after O’Hara’s first parole hearing was scheduled by the Board. 0 ’Hara was notified of the February 17, 1982 hearing
. We are also satisfied that O’Hara suffered- no actual prejudice from the Board’s denial of a further continuance on February 17,1982. The evolving standard of review in the area of assistance- of counsel at administrative hearings is that if the alleged errors are harmless and the party alleging those errors has not suffered-any prejudice or had his rights materially affected, a reviewing court will not overturn the agency’s decision nor order a remand. See Finley v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 175, 474 A.2d 431 (1984). The United States Supreme Court, in the area of criminal prosecutions, has held that for a defendant to show actual prejudice stemming from errors related to the right to assistance of counsel, the defendant is required to show that there is a reasonable probability that, but for the alleged errors relating to counsel, the result of the proceedings would have been different. Strickland v. Washington, U.S. , , 80 L.Ed. 2d 674, 698 (1984). As we have held O’Hara was not denied his right to assistance of counsel by the Board, we are convinced that he must show actual prejudice to be entitled to have the Board’s or
The record shows that the only violation of parole 0 ’Hara was charged with was sustaining serious new criminal convictions stemming from offenses committed while serving a parole term. See Section 21.1(a) of the Parole Act. O’Hara’s new convictions were for Third Degree Murder, Possession of an Instrument of Crime, and Former Convict Not to Own a Firearm. The fact of those convictions has been conclusively determined by the criminal justice system and may not be re-litigated before the Board. Morrissey, 408 U.S. at 490; Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 49, 56, 484 A.2d 413, 414 (1984); see also Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983) (conviction of new crime automatic violation of probation). The presumptive range for the Third Degree Murder conviction alone carries a minimum range of thirty-six months, well above the twenty-two months O’Hara had remaining on his original Mercer County sentence. See 37 Pa. Code §75.2.
As the fact of the new convictions has already been established by the criminal justice system, the major purpose of a parole Eevocation Hearing is to provide the parolee with an opportunity to present sufficient mitigation of or justification for his actions so as to convince the Board that, despite the new convictions, parole remains a viable means of rehabilitation. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Simmons v. Pennsylvania Board of Probation and Parole, 74 Pa. Commonwealth Ct. 283, 459 A.2d 897 (1983). The record before us is devoid of mitigation or justification sufficient to over
We now turn to O’Hara’s final contention that the Board failed to provide him with a timely Revocation Hearing. By regulation, the Board is required to provide parolees with a Revocation Hearing within 120 days from a verdiot or plea of guilty. 37 Pa. Code §71.4(2). Here, the Board provided O’Hara with a hearing on the Murder conviction on July 22, 1980, ninety-one days after the date of conviction. Although the Board granted O’Hara a re-hearing on that conviction, the July 22, 1980 hearing satisfies the timeliness requirement. Brown. As to the September 9, 1981 firearm conviction, the Board first scheduled a Revocation Hearing for November 5,1981. That hearing, as well as two subsequently scheduled hearings, were continued due to either O’Hara’s unavailability or that of his counsel. Periods of time where a parolee or parolee’s counsel are unavailable are excluded from the computation to determine whether a parolee was given a Revocation Hearing within 120 days of conviction. 37 Pa. Code §71.5(i). Therefore, the time from November 5, 1981 through February 17, 1982 is excludible and the February 17, 1982 hearing is deemed to be held fifty-seven days after conviction. Both hearings were, therefore, timely.
Having found no abuse of discretion nor violation of constitutional rights, we mil affirm the order of the Board.
And Now, the 31st day of January, 1985, the Order of the Pennsylvania Board of Probation and Parole, at Parole Number 2177-K, dated March 5, 1982, which recommits Thomas O’Hara to prison as a convicted parole violator, is hereby affirmed.
Due to the extraordinary length of time which has expired since O’Hara originally filed his petition for review, we feel a chronology of the proceedings is in order. O’Hara’s original pro se Petition for Review was filed with this Court on February 19, 1982, two days following the in absentia Revocation Hearing at SCI-Pittsburgh and well prior to the Board’s March 5, 1982 order.' On February 22, 1982, we dismissed that appeal without prejudice to O’Hara’s right to pursue administrative relief before the Board. See 37 Pa. Code §71.5 (h) ; Lantzy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 626, 477 A.2d 18 (1984).
18 Pa. C. S. §2701.
18 Pa. C. S. §2706.
18 Pa. C. S. §2902.
18 Pa. C. S. §903.
18 Pa. C. S. §2502.
18 Pa. O. S. §6105.
18 Pa. O. S. §907.
O’Hara was not, technically “available” to the Board at this time to commence service of his back time in that he remained incarcerated awaiting sentencing on the Murder conviction as well as awaiting trial on the charge of Former Convict Not to Own a Firearm.
We have already held that the proper relief for a parole hearing held for an unrepresented parolee who has not waived
O’Hara was given a copy of the Board’s “Notice of Charges and Hearing,” PBPP-340, which has the right to free counsel if indigent contained in a statement of rig’hts printed on the reverse. See Coades v. Pennsylvania Board of Probation and Parole, 84 Pa. Commonwealth Ct. 484, 497 n. 16, 480 A.2d 1298, 1305 n. 16 (1984). The record shows that O’Hara was personally given copies of the PBPP-340 on June 10, 1980, January 15, 1982, and February 5, 1982.
Section 21.1(a) of the Parole Act, 61 P.S. §331.21a(a), mandates that where a parolee is recommitted by the Board as a result of a new criminal conviction, the parolee receives no credit against his or her sentence for the time spent “at liberty” on parole. The fact that O’Hara’s maximum term of his 1975 Mercer Oounty sentence has long since expired does not render this appeal moot. The extension, of O’Hara’s maximum term by the Board.has the effect of pushing back the effective date of O’Hara’s new sentences and thereby pushing back O'Hara’s parole eligibility date on the new sentences. McSorley v. Pennsylvania Board of Probation and Parole, 76 Pa. Commonwealth Ct. 257, 463 A.2d 1234 (1983).
O’Hara also raised a challenge to the Board’s jurisdiction over him as both of the new convictions occurred after February 22, 1980 — his original maximum term — and the Board had dissolved its warrant and detainer on that date. However, since O’Hara did not address this contention in his brief, we consider it waived pursuant to Pa. B.A.P. No. 2119; Commonwealth v. Colbert, 476 Pa, 531. 383 A.2d 490 (1978).
The Bureau operates three diagnostic and classification centers for male inmates which are located at, SCI-Camp Hill, SCIGraterford and SCI-Pittsburgh. The Bureau’s diagnostic and classification for female inmates is located at SCI-Muncy.
We hasten to point, out that other .than Mr. Nedell’s letter to the Board of June 12, 1980, there is no further information in the record, after the July 1980 telephone call, that Mr. Nedell continued to represent O’Hara in his parole matter. Mr. Nedell did represent O’Hara at a parole preliminary hearing held at Erie Oou-nty Prison on December 18, 1979. While there is no indication in the record of any continuing professional relationship between Mr. Nedell and O’Hara insofar as the parole matter is concerned, we do note that Mr. Nedell continued to represent O’Hara in the appeal of his murder conviction which was argued before the Superior Court on June 17, 1982, see Commonwealth v. O’Hara, 316 Pa. Superior Ct. 598, 463 A.2d 42 (1983), and in the appeal of his firearm conviction which was submitted on 'October 27, 1983. See Commonwealth v. O’Hara, 324 Pa. Superior Ct. 583, 472 A.2d 237 (1984).
The record indicates that during an interview with his parole agent hours after the shooting on November 8, 1979, O’Hara, after being given his Miranda rights, admitted the shooting but claimed it was in self defense after Knox, the victim, threatened him with a knife. O’Hara also denied ownership or possession of the .25 automatic claiming that it was given to him only moments before the shooting by an unnamed individual at the Hilton. This information was evidently discounted by the criminal trial court in that O’Hara was convicted of Murder and the firearms offense. Witnesses also state that both O’Hara and Knox appeared drunk. O’Hara admitted drinking but denied he was drunk. We also consider these reasons as grossly insufficient mitigation or justification so as to render O’Hara’s recommitment as inappropriate in light of the serious new criminal convictions.
The record shows that O’Hara was arrested in June of 1979 at an Ohio Ramada In.n after the desk clerk noticed a pistol sticking out of his pants. The pistol allegedly belonged to O’Hara’s employer who left it in the vehicle the employer allowed O’Hara to use. O’Hara claimed he found the weapon and took possession of it as he was afraid to leave it in the vehicle unattended. Ohio authorities apparently dropped the weapons charge and the Board allowed O’Hara to remain at liberty on parole. It was less than five months after this incident that O’Hara killed James Knox with another concealed handgun.