78 Pa. Commw. 441 | Pa. Commw. Ct. | 1983
Opinion by
Petitioner Irvin Sharp has filed a petition for review with this Court challenging a decision of the Pennsylvania Board of Probation and Parole (Board). The Board revoked petitioner’s parole and recommitted him to prison as a convicted parole violator.
In April of 1976, petitioner was sentenced to a term of three to ten years of imprisonment on a charge of robbery, and was released on parole from that conviction on July 11, 1979. On December 29, 1979, he was arrested in Philadelphia on new criminal charges which included robbery, theft, and possession of an instrument of crime, and was lodged at the Philadelphia Detention Center in lieu of bond. The Board filed a parole violation warrant against Sharp on December 31,1979, citing the arrest on these new charges. A preliminary hearing was held in Philadelphia Municipal Court on January 18,1980, at which time it was determined that a prima facie case against petitioner had been established. As a result of this determination, the Board ordered that petitioner be detained pending disposition of the criminal charges.
Sharp was convicted on the charges of robbery and possession of an instrument of crime on May 27, 1980, and was confined at the Philadelphia County Prison. Sentencing on the charges was deferred. On May 29, 1980, he requested a full Board parole revocation hearing, which was scheduled to convene on September 12,
On September 9, 1980, Sharp was sentenced on the charges of robbery and possession of an instrument of crime to a term of two to five years at the State Correctional Institute at Graterford. He was transferred from the Philadelphia County Prison to Graterford on September 12, 1980.
A revocation hearing was scheduled, for September 25,1980. On .that date, the petitioner, who is indigent, requested a continuance in order to obtain counsel to represent him at the hearing. On October 9, 1980, the date to which the hearing was rescheduled, Sharp again requested a continuance because he had been unable to secure counsel. The hearing was held before a Board Hearing Examiner on October 23, 1983, despite the fact that petitioner still had not secured counsel and did not wish to proceed in the absence thereof. Based on the Hearing Examiner’s recommendation, the Board rendered a decision, on December 4, 1980, revoking petitioner’s parole and recommitting him to prison, as a convicted parole violator, to serve the balance of his original sentence.
Thereafter, pursuant to 37 Pa. Code §71.5 (h), Sharp applied to the Board for administrative review of its order of December 4, 1980. On May 20, 1982, following the denial of his application, he filed with this Court a pro se petition for review.
(i) If the parolee is confined outside the jurisdiction of the Pennsylvania Bureau of Correction, such as confinement out-of-state, confinement in a Federal correctional institution, or confinement in a county correctional institution where the parolee has not waived the full Board Revocation Hearing required by Commonwealth of Pennsylvania ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), in which case the final Revocation Hearing shall be held within 120 days of the official verification of the Board of the return of the parolee to a State correctional facility. The parolee, who is confined in a county correctional institution and who waived the final Revocation Hearing by a quorum of the Board as reqibired in the Ram-beau decision shall be deemed to be within the jurisdiction of the Pennsylvania Bureau of Correction beginning with the date of his waiver of such Board hearing. (Emphasis added.)
Following his conviction on the new criminal charges on May 27, 1980, and prior to his transfer to
We next turn to the petitioner’s argument that it was error for the Hearing Examiner to conduct the hearing on October 23, 1980, because petitioner was not represented by counsel and did not wish to proceed without such representation. We agree.
Petitioner’s revocation hearing, however, was held before this Court rendered its decision in Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32, 424 A.2d 561 (1981). In that case, in which two appeals from the Board were consolidated, two indigent parolees who had been convicted on new criminal charges were denied representation for their revocation hearings by the public defenders of the counties where they had been convicted, and also by the public defenders of the counties where they were incarcerated subsequent to their convictions. Following uncounseled revocation hearings, at which neither parolee waived the right to counsel, the Board recommitted each to prison. On appeal, we held that the public defender of the county in which an indigent parolee is incarcerated must, up
Petitioner is indigent, and accordingly, had the right to free representation by counsel at his parole revocation hearing. He was unable to secure counsel, and therefore, in light of Passaro, the Board’s order revoking petitioner’s parole is vacated, and the case is remanded with directions that the Board promptly schedule a new hearing. Counsel at that hearing shall be provided by the Office of the Public Defender of the county where petitioner is presently incarcerated.
Order
And Now, the 21st day of November, 1983, the order of the Pennsylvania Board of Probation and Parole revoking the parole of Irvin Sharp is hereby vacated, and the case is remanded with directions that the Board promptly schedule a new hearing’. It is further ordered that counsel at that hearing shall be provided by the Office of the Public Defender of the county where petitioner is presently incarcerated.
See 37 Pa. Code §71.3(1) (i).
See Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842, (1973).
In accordance with Bronson v. Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), and Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32, 424
Had petitioner been confined in Philadelphia County solely at the request of the Board, and had he not been incarcerated on criminal charges lodged there, he would have been within the Board’s jurisdiction at all times, and subparagraph (i) of Section 71.4(2) would have been inapplicable. See Hammond v. Pennsylvania Board of Probation and Parole, 40 Pa. Commonwealth Ct. 14, 396 A.2d 485 (1979). However, since the new criminal charges intervened prior to the date the Board detained petitioner, the Board did not have jurisdiction over him until he waived a full Board hearing on July 11, 1980. See Terrell v. Jacobs, 37 Pa. Commonwealth Ct. 493, 390 A.2d 1379 (1978).