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MARIO A. PASSARO v. COMMONWEALTH PENNSYLVANIA (01/09/81)

decided: January 9, 1981.

MARIO A. PASSARO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT. RICHARD LEE BARNETT, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE ET AL., RESPONDENTS. CUMBERLAND COUNTY OFFICE OF THE PUBLIC DEFENDER, TAYLOR P. ANDREWS, PUBLIC DEFENDER, AND FULTON COUNTY OFFICE OF THE PUBLIC DEFENDER, JAMES SCHALL, PUBLIC DEFENDER, ADDITIONAL RESPONDENTS



Original jurisdiction in cases of Mario A. Passaro v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole and Richard Lee Barnett v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole et al.

COUNSEL

Thomas M. Place, for petitioner, Mario A. Passaro.

Thomas M. Place, with him Richard Lee Barnett, for petitioner, Richard Lee Barnett.

Robert A. Greevy, Assistant Attorney General, with him Edward G. Biester, Jr., Attorney General, for respondent.

Taylor P. Andrews, for Amicus Curiae, Public Defender Association of Pennsylvania.

John H. Broujos, for Amicus Curiae, County of Cumberland.

John R. Merrick, for Amicus Curiae, Public Defender of Chester County.

Louis M. Natali, Jr., First Assistant Defender, with him Benjamin Lerner, Chief Defender, for Amicus Curiae, Defender Association of Philadelphia.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail and Williams, Jr. Opinion by President Judge Crumlish. Judge Williams, Jr. dissents. Concurring and Dissenting Opinion by Judge Mencer.

Author: Crumlish

[ 56 Pa. Commw. Page 34]

In these consolidated appeals from orders of the Pennsylvania Board of Probation and Parole, we must determine whether or not the county of conviction or incarceration is ultimately responsible for the provision of legal counsel during a parole revocation hearing. We must conclude that this responsibility properly lies with the county of incarceration.

I. Passaro v. Pennsylvania Board of Probation and Parole, No. 256 Miscellaneous Docket No. 2.

Mario A. Passaro, an indigent parolee/inmate convicted on January 17, 1975 in Fulton County, Pennsylvania, to a term of 1 1/2 to 5 years for burglary, was paroled from that conviction in September of 1976. While on parole, Passaro was arrested and charged with armed robbery and technical parole violations by the Mercer County authorities. Released for medical treatment in April of 1978, Passaro remained at large until November of 1978 when he was again arrested by the Centre County authorities and charged with attempted homicide, aggravated assault, recklessly endangering the life of another and possession of a deadly weapon. In May of 1979, he pleaded guilty to aggravated assault in Centre County and was sentenced to a term of 1 1/2 to 6 years at the State Correctional Institution in Camp Hill.

In June of 1979, Passaro was given a full hearing without counsel before the Pennsylvania Board of Probation and Parole (Board) for parole violations. He refused to participate in the hearing absent counsel, and upon leaving the hearing room, the Board ordered his recommittal as a technical parole violator. Later that month, Passaro requested a full Board revocation hearing which was held on July 31, 1979. Prior to that hearing, however, Passaro was informed

[ 56 Pa. Commw. Page 35]

    by public defenders of both Centre County, the county of conviction, and Cumberland County, the county of incarceration, that their offices would not represent him at his July 31st hearing. After that hearing, which was in fact held without counsel, the Board reaffirmed its commitment of Passaro as a technical parole violator and recommitted him as a convicted parole violator.

On September 14, 1979, Passaro filed a petition for review with this Court from the ...


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