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JAMES CLARKE v. COMMONWEALTH PENNSYLVANIA (11/04/82)

decided: November 4, 1982.

JAMES CLARKE
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE. PETITION OF LESTER G. NAUHAUS, PUBLIC DEFENDER, AND JOHN H. CORBETT, JR.



Appeal No. 295 W.D. Misc. Dkt. 1981, from the Order of the Commonwealth Court dated August 31, 1981 denying the Petition to Withdraw as counsel filed by the Office of the Public Defender of Allegheny County at No. 102 Misc. Dkt. No. 3. Appeal allowed March 29, 1982 at No. 295 W.D. Misc. Docket 1981; Robert W. Williams, Jr., Judge.

COUNSEL

John H. Corbett, Jr., Public Defender, Pittsburgh, for petitioners.

Arthur R. Thomas, Asst. Chief Counsel, Robert A. Greevy, Chief Counsel, Pa. Board of Probation and Parole, Harrisburg, for respondents.

Thomas M. Place, Carlisle, for James Clarke.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. McDermott, J., filed a dissenting opinion in which Hutchinson, J., joined.

Author: Per Curiam

[ 499 Pa. Page 192]

ORDER

Appeal dismissed as having been improvidently granted.

McDERMOTT, Justice, dissenting.

The majority, by dismissing this appeal as improvidently granted, is avoiding a major issue which should be addressed by this Court, i.e., whether the constitutional rights to counsel and to judicial review attach to parole application proceedings. I, therefore, dissent.

Appellee filed in Commonwealth Court a pro se petition for review of a decision by the Pennsylvania Board of Probation and Parole denying his application for parole. Before addressing the merits of the petition, the court ordered the Office of the Public Defender of Allegheny County to represent appellee. Asserting that appellee was not entitled to counsel, the public defender's office filed a

[ 499 Pa. Page 193]

    petition to withdraw, which was denied by the court below resulting in the instant appeal. The Commonwealth Court's action raises serious constitutional ...


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