94 Pa. Commw. 236 | Pa. Commw. Ct. | 1986
Opinion by
Mark Timothy Winters (Winters) petitions for review of an order .of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board recommitment order. That re,commitment order revoked his parole and recommitted him to prison as a technical and convicted parole violator to .serve fifty-two months on backtime.
While on parole, Winters was arrested .and 'Charged with transporting firearms without a license. On April 5, ,1976, Winters was sentenced to a term of six to twenty-three months on 'this charge. Winters was confined to the Montgomery County prison. On October 7,1976, Winters was found guilty of a heroin sales charge and was sentenced on Bureau of Corrections No. F-7628 to a term of not less than seven months nor more than four years, eleven months, effective February 3, 1977.
On July 5,1977, the Board granted reparóle on Bureau of Corrections No. F-6649 to the detainer only, with a notation that on -September 3, 1977, parole would ¡be granted -on the detainer sentence. On July 12, 1977, Winters was received at the -State Correctional Institution at Dallas ,(iSCI-Dallas). The Board granted Winters’ parole on Bureau of Corrections No. F-7628 effective September 3, 19.77, at which time he was released from iSCI-Dallas.
On November 21, 19-77, Winters was ar-res-ted and charged with loitering, prowling at night and possession of burglary tools. Winters was confined in the Montgomery County prison in lieu of $1500 bail. The Board lodged its warrant on December 19, 1977 and decided to “continue [Winters] on parole pending disposition of criminal charges.”. On December 21, 1977, the Board lifted its detainer and Winters posted the $1500 bail.
On January 12,1978, Winters was arrested in Chester County on (charges of Criminal Attempt-Homicide, Criminal (Conspiracy, Aggravated Assault, and Criminal Attempt-Burglary.' Winters was held -in -the county prison in lieu -of posting $50,000 bond.
The certified record indicates
On July 1, 1983, the Mississippi Highway Patrol arrested Winters on the Fugitive Warrant. He was held in Mississippi pending extradition. Winters waived .extradition and on July 9, 1983, was confined to Montgomery -County Prison on escape charges. The Board lodged its warrant against Winters.
At a preliminarily criminal hearing, a prima facie case was found as to the escape charge. Winters was confined in the Montgomery .County prison in lieu of $75,000 bond. On July 22, 1983, Winters requested a continuance of .his preliminary detention hearing pending disposition of the criminal charges against him. On August 9, 1983, the Board ordered Winters detained pending disposition of the outstanding criminal charges and to return Winters as a technical parole violator When available. A follow-up decision ion November 1, 1983 again ordered Winters detained pending the outcome of his outstanding criminal charges.
On January 30, 1984, Winters pled guilty to charges of Escape and Theft by Receiving Stolen Property .and was sentenced to a one to two year term for' the escape c|onviction to he served simultaneously with the one to five year term handed down on the Theft by Receiving ¡Stolen Property conviction.
On March 5, 1984, Winters appeared in the Court of Common Pleas of Delaware County ¡and pled guilty to a ¡charge of robbery. Winters was sentenced to. a term of three to seven years in a state correctional fa
Winters -asked for a continuance of the Board’s violation hearing pending- .the outcome- of the January 1978 charges from Chester ¡County. On April 12, 1984, Winters was .convicted of the aggravated assault and attempted burglary charges, and was sentenced on May 15, 1984 to a term of five to ten years to run concurrently with the sentences imposed ion January 30, 1984 .and Marich 5,1984.
On June 21, 1984, Winters was returned to the State Correctional institution at Graterford (:SOIGriaterfiord). A parole violation/ravloicatiion hearing was scheduled on July 10, 1984, but ou July 9, 1984, Winters requested a full Board hearing he held.
A full Board hearing was held .on September 25, 1984. Winters was represented by an .attorney from the Montgomery County Public Defender’s Office. As a result of that hearing, on November 7, 1984, tbe Board reaffirmed its .October 15, 1976 recommitment order, at Bureau Clorrelctions No. P-6649, ordering Winters -to serve six months backtime. The Board ordered Winters reparoled .on ¡September 15, 1989 to the -detainer only, and ordered Winters recommitted to prison as a technical and convicted parole violator, at Bureau Corrections No. F-7628, to serve fifty-two months with a maximum expiration date of February 21, 1993.
On January 30, 1985, Winters again requested administrative relief, which was denied by the Board on February 11, ,1985.
On March 9, 1985, Winters filed a pro se petition for review in this Court. On March 18, 1985, this Court appointed the Public Defender of Huntingdon County to represent Winters in accord with Bronson v. Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981) and Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32, 424 A.2d 561 (1981). See also Brewer v. Pennsylvania Board of Probation and Parole, 90 Pa. Commonwealth Ct. 75, 494 A.2d 36 (1985).
On June 4,1985, Winters’ counsel filed an “Application for Dismissal of Parióle Proceedings Against Mark Timothy Winteris Due to Failure to File Certified Record Within the Time as Required by the Commonwealth Court Order”, pursuant to Pa. R.A.P. 2188. This Court denied said appRcation on June 7, 1985, and directed the Board to file a record within twenty days. The Board lodged the certified record on June 28, 1985.
On August 14,1985, Winters filed a pro se “Motion to Dismiss Attorney of Record Dne to Conflict of Interest and Request Permission to Proceed Pro Se With Court Appointed Legal Assistant,” alleging, inter alia, that counsel did not forward a copy of counsel’s brief to Winters prior to filing it with the Oiourt.
On September 13,1985, Winters filed a pro se ‘ ‘Application for Dismissal of Parole Proceedings Against Mark Timoithy Winteris Due to Failure to File a Brief Within the Time as Required by the Pennsylvania Rules of Appellate Procedure” ias well as a pro se brief.
On September 18, 1985, this Court denied the motion to dismiss counsel, quashed the pro se brief, and gave the Board thirty days to respond to counsel’s brief. By a separate order, also dated September 18, 1985, this Court rejected Winters’ argument that summary judgment should be granted in his favor because the Board’s brief had not been timely filed.
We will first address Winters’ outstanding motions. Winters first argues .that tbis Court erred in denying his motion to dismiss counsel, 'alleging that an evidentiary hearing should be allowed so that he may perfect his claim of ¡ineffectiveness of counsel. In LaCourt v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 384, 488 A.2d 70 (1985), this Court noted that:
[W]hile an indigent parolee facing revocation of his or heir parole is entitled to -appointed counsel to represent him before the Board, . . . ian indigent parolee does not have the right to appointed counsel of Ms or her choice. ... A parolee’s right to counsel guarantees only that an indigent parolee ibe provided .with counsel who is competent and who represents Ms best interests in an effective manner. . . . TMs right does not entitle a parolee to the best or most experienced defense counsel available.
[The parolee] bears the burden of showing counsel’s ineffectiveness so as to entitle him to relief. ... A claim of ineffective assistance of counsel has two parts, both of wMch must be shown for a parolee to be entitled to relief. The first is a showing that the parolee’s counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed under law. The second is that the parolee must show counsel's deficient performance prejudiced his de*244 fense. . . . Tlo show .prejudice sufficient to satisfy the second requirement, a parolee must show .that there is a reasonable probability that, but for counsel’s deficient performlance, the result of -the proceedings would have been different. . . . [A] parolee must satisfy both parts of the test to be entitled to relief----
87 Pa. Commonwealth Ct. at 391-92, 488 A.2d at 74-75.
In this case, Winters’ only factual allegation of ineffectiveness of counsel is that counsel did not forward a copy of his brief to Winters. This does not -amount to an error so serious as to deprive Winters of effective representation. Accordingly, Winters’ ineffective assistance of counsel claim is clearly without merit and must he rejected.
Winters ¡argues that this Court erred in citing Commonwealth v. Henry, 341 Pa. Superior Ct. 146 n. 2, 491 A.2d 193, 195 n. 2 (1985) and quashing his pro se brief. Winters argues that because this Court has held many times that proceedings before the Board are civil and not criminal in nature-, we cannot cite a criminal case for authority. Winters misperceives our citation. The point for which we cited Henry was that we would not consider Winters’ brief because he was -already represented by counsel. The fact that Henry was -concerned with a criminal appeal from a judgment of sentence does not render the case inapplicable. We hold that Winters is adequately represented by counsel and that his -due process and equal protection rights have not been violated. See Toth v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 19, 466 A.2d 782 (1983).
Winters next oalls our attention to 42 Pa. C. S. §2501 (a), which provides that:
(ia) Civil matters. In all .civil matters before any tribunal, every litigant shall have a*245 ■right to he heard, by himself and his Counsel, or by either of them.
Winters argues that this provision somehow creates a liberty interest in- Winters ’ representing himself at ■the .same time he is represented by counsel. We disagree.
A parole revocation appeal is a ¡civil proceeding except to -the extent that a liberty interest requires counsel. Bronson, In Bronson, our Supreme Court stated that:
[wjhether a parole violation proceeding is properly classified as criminal, qnasi-icriminal ¡civil, we have recognized it to ¡be a proceeding of the nature where the right to counsel is required to comport with our fundamental concepts of fairness. The .same compelling considerations require the .assistance of counsel in the task of perfecting an appeal from the proceeding.
491 Pa. at 560, 421 A.2d at 1022. We note also that our Supreme Court was of the opinion that the assistance of counsel at the appellate level ¡was required for the assistance of the ¡Court as well as to protect the prisoner’s interest. Toth, 78 Pa. Commonwealth Ct. at 20, 466 A.2d at 783. In onr view, to allow both the prisoner and the counsel to represent the issues to this Court would impede review of the merits of the prisoner’s appeal. We have .stated many times that the legislature does not intend an absurd result, and to have both the prisoner ¡and counsel proceed ¡separately in the same proceeding would indeed be absurd. We read the conjunctive alternative “by himself and his counsel, or by either of them” found in 42 Pa. C. S. §2501 as referring to the litigants’ use of counsel .in one instance, and at another time proceeding pro ,se. We hold that 'Section 2501 does not create a liberty interest in having Winters represent himself.
Winters has also ashed that counsel be allowed to file a motion to withdraw from the case so that Winters could proceed pro se. The right to withdraw is tied to a finding that the appeal is ‘ ‘wholly frivolous ’ ’. Craig v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 586, 502 A.2d 758 (1985). Implicit in the fact that counsel has filed a brief on Winters’ behalf is a finding that the appeal is not wholly frivolous. We, therefore, deny Winters’ request.
Winters has also filed ¡an “Application for Supersedeas in the Nature of Peremptory Mandamus and Motion to Stay Entire Proceedings Until Issues Herein are Addressed and Resolved .and Request Matter be Addressed En Banc,” raising substantially the same issues as discussed above, and which we deny.
We now turn to the merits of Winters’ appeal as raised in counsel’s brief. Petitioner raises seven issues : (1) whether the Board held timely violation and ■revocation hearings; (¡2) whether the sentence imposed by the Board was unduly harsh and whether the Board failed to consider mitigating circumstances; (3) whether the recommitment on Bureau Correction No. F-6649 was improper; (4) whether Winters is owed a credit for time served from November 21, 1977 through December 22, 1977; (5) whether the Board improperly failed to inform Winters of his right to appeal all
Winters first alleges that the full Bioard hearing did not.take plajee -until 133 d'ayis following sentencing on Ais outstanding criminal charges. Section 71.4(2) of the Bioard regulations, 37 Pia., Code §71.4(2), requires the Board to hold the revocation Aeiaring within 120 days from the date the Board receives official verification of a plea of guilty unless (1) the parolee is confined in a county correctional institution where the parolee Aas njot waived the full Boiard revocation hearing or (.2) if the parolee requests a continuance of a revocation Aeiaring which is granted by the Board. In the- -instant case, both exceptions to the 1-20-day requirement apply. On both July 22, 1983 and March 12, 1984, Winters requested a qontiuulanoe of his revocation-hearing. At this point, Winters was confined in a county prison and wanted la full Board hearing. Delays caused by a parolee’s request for a Continuance will not be considered in determining whether the 120-dg,y time limit has been met. Corbin, v. Pennsylvania Board of Probation and Parole, 42 Pa. Commonwealth Ct. 50, 53, 399 A.2d 1202, 1203 (1979). In addition, Winters was not returned to a state correctional institution until June 21, 1984. The 120 days in which the Boiard Aas to give a convicted parole violator a Aeiaring does not commence until the violator’s return to such state correctional institution. Chancey v. Pennsylvania Board of Probation and Parole, 83 Pa. Commonwealth Ct. 42, 477 A.2d 22 (1984). TAe full Board hearing held on September 25, 1984 was therefore timely. '
Winters next contends -that ¡the sentence imposed by the Board was unduly AarsA. Specifically, Winters
Winters nest raises the issue of whether his 6-month recommitment on Bureau of Corrections No. F-6649 was improper. Winters avers that the Board erred in recommitting him on F-6649 because the Board clearly stated that Winters only owed fifty-two months backtime on Bureau of Correction No. F-7628, and that he was not given notice that be could also be recommitted on No. F-6649. We note that both F-6649
Winters ’ next argument is that a time credit should have been applied for tMrty-one dlays Winters spent incarcerated from November 21, 1977 to December 22, 1977, solely due to the Board’s detainer. The record reveals tbat on November 21, 1977, Winters was arrested and confined in Montgomery County prison. Bail was set at $1,500, but Winters did not post bail. ■The Board lodged its detainer on December 19, 1977, but lifted it on December 21,1977. Winters posted bail on December 21,1977 and was released. Clearly, Winters was not held in custody between November 21, 1977 and December 22, 1977 solely because of the detainer lodged by the Boland and in accordance with Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980), tMs time spent in custody was ¡credited toward bis new sentence. Winters alleges that tbe 'Charges which resulted in this confinement were dropped in April of 1983. There is nothing in 'the record to support such an .allegation.
Winters argues next that the Board improperly neglected to inform him of bis right to appeal all Board decisions pursuant to 37 Pa. Code §71.5(b). Tbe orders Winters' claims be was not told be could appeal were the August 9, 1983 and'November 1, 1983 de
■ Winters contends that the Board denied Mrm a reasonable opportunity to have assistance of counsel in appealing the Board’s order of November 7, 1985, alleging that he had only six days in wMch to prepare his application for administrative relief. We have noted' that the “mere shortness of time in which counsel has to prepare a defense or Confer with Ms client does not per se constitute ineffective assistance of counsel.” LaCourt, 87 Pa. Commonwealth Ct. at 391, 488 A.2d at 75. Winters timely .submitted Ms application, and the Board subsequently addressed Winters’ request. We do not see where the shortness of time prejudiced Winters ’ appeal rights.
Winters makes one last argument, that Ms prior counsel should have been more forceful about articu
For the reasons set forth, we will .affirm the Board.
Order
The order of the Pennsylvania Board of Probation and Parole in the above-^aaptioned matter is affirmed. All of Petitioner’s motions are denied.
There is no explanation in the record to indicate how Winters was released from prison on the January 12 offense.
The Board recommitted Winters for' 12 months as a technical parole violator for violations of Condition No. 1 (report in person or in writing within 48 hours to -the district office, do not leave district without written -permission) and Condition No. 6 (special condition imposed of close supervision). The Board recommitted Winters for 40 months as a convicted parole violator for multiple offenses which were established by convictions in a court of record, Winters’ statement and admission, various violation reports and Classification summaries. The Board’s recommittment order com
See Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980); Debnam v. Pennsylvania Board of Probation and Parole, 71 Pa. Commonwealth Ct. 572, 455 A.2d 297 (1983).
Winters asked us to compare Blevins v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 131, 491 A.2d 966 (1985) (petition for administrative review filed beyond 30 days from date of order; dismissed as untimely); St. Clair v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 561, 493 A.2d 146 (1985) (petition for review untimely filed and dismissed); Altieri v. Pennsylvania Board of Probation and Parole, 88 Pa. Commonwealth Ct. 592, 495 A.2d 213 (1985) (untimely petition for review filed to this Court); O’Hara v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 356, 487 A.2d 90 (1985) (revocation hearing timely held) and Maldonado v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 576, 492 A.2d 1202 (1985) (request for administrative relief untimely filed) with Wright v. Pennsylvania Board of Probation and Parole, 85 Pa. Commonwealth Ct. 502, 482 A.2d 1190 (1984) (denial of administrative relief reversed where petitioner had no opportunity to review evidence) ; Razderk v. Pennsylvania Board of Probation and Parole, 76 Pa. Commonwealth Ct. 176, 463 A.2d 111 (1983) (Board could not substantiate charges against petitioner with inadmissible hearsay évidence); Wiley v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 197, 467 A.2d 100 (1983) (recommittment hearing on technical violations held untimely); Head v. Pennsylvania Board of Probation and Parole, 77 Pa. Commonwealth Ct. 61, 465 A.2d 76 (1983) (per curiam) (no factual basis to reverse Board’s denial of administrative relief) and Lowe v. Pennsylvania Board of Probation and Parole, 72 Pa. Commonwealth Ct. 648, 457 A.2d 206 (1983) (per curiam) (Board ordered tó file transcription of violation hearing so that this Court can perform review).