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SPENCER R. DOBSON v. FRED W. JACOBS (10/22/79)

decided: October 22, 1979.

SPENCER R. DOBSON, JR., PETITIONER
v.
FRED W. JACOBS, CHAIRMAN, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of Spencer R. Dobson, Jr. v. Fred W. Jacobs, Chairman, Pennsylvania Board of Probation and Parole.

COUNSEL

Spencer R. Dobson, Jr., petitioner, for himself.

Stephen J. Mascherino, Assistant Attorney General, Robert A. Greevy, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge DiSalle.

Author: Disalle

[ 46 Pa. Commw. Page 549]

Spencer Dobson, Jr. (Petitioner) has filed a petition for Writ of Mandamus, which we shall treat as a petition for review, disputing the December 8, 1978 action of the Pennsylvania Board of Probation and Parole (Board) ordering him recommitted as a convicted parole violator. The Board has filed preliminary objections.

Petitioner argues that he was denied the right to counsel and that the Board failed to hold a timely final revocation hearing. This Court, per President Judge Bowman, in an April 9, 1979 order, indicated that this petition arises out of the same set of operative facts as the petition docketed in this Court by Petitioner at No. 104 Misc. Dkt. No. 2, and dealt with in our opinion and order dated March 2, 1979. Accordingly, Judge Bowman ordered that the instant petition be stricken insofar as it raises issues already before this Court and that the parties limit themselves solely to the issue of Petitioner's right to counsel.

The facts relevant to that issue are as follows. On October 20, 1978, Petitioner received a full Board revocation hearing. Attorney Patrick Mandracchia, of the Public Defender's Office, was present at the hearing on behalf of Petitioner, but at the outset, asked the Board to excuse him, claiming a conflict of interest. It seems that several years earlier, Mr. Mandracchia had unsuccessfully represented Petitioner at a revocation proceeding and that Petitioner then filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, as amended, 19 P.S. § 1180-1 et seq., alleging ineffective assistance of counsel.

[ 46 Pa. Commw. Page 550]

The Board excused Mr. Mandracchia, and over Petitioner's strong objection, held the hearing without counsel present.

We believe the Board erred in not continuing the hearing until such time as Petitioner had the opportunity to procure counsel. In Patterson v. Pennsylvania Board of Probation and Parole, 215 Pa. Superior Ct. 532, 258 A.2d 693 (1969), the lower court held that the Board had an obligation to furnish counsel at a revocation hearing. In reversing, the Superior Court held that Section 6*fn1 of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6, imposes that duty upon the Public Defender, not the Board. However, after holding that the Board had no duty to supply counsel to a parolee at revocation proceedings, the Superior Court, noting the importance of such representation, remanded the case to the lower court for the issuance of an order to the Public Defender for appointment of counsel. We believe that the Board should have followed a similar procedure here.

Also dispositive of this issue are the regulations of the Board itself, which neither party cites or refers to in its brief. These rules, 37 Pa. Code § 71.4, in pertinent part, appear to incorporate by regulation the holding of the Superior Court in Patterson, supra, which, in turn, ...


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