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ELIJAH BROWN v. COMMONWEALTH PENNSYLVANIA BOARD PROBATION AND PAROLE (12/29/82)

decided: December 29, 1982.

ELIJAH BROWN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in the case of Elijah Brown v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Timothy P. Wile, Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 70 Pa. Commw. Page 598]

On November 20, 1980, Mr. Elijah Brown's parole was revoked by the Board of Probation and Parole (Board) because of new convictions and the violation of certain conditions of his parole. In his amended petition for review in our appellate jurisdiction, Mr. Brown contends that the Board's order should be set aside because 1) he was not represented by counsel at the revocation or violation hearings notwithstanding the fact that he requested counsel and 2) both his violation and revocation hearings were untimely held.

[ 70 Pa. Commw. Page 599]

As we said recently in an unreported memorandum opinion, Stevenson v. Board of Probation and Parole, (No. 181 Misc. Dkt. No. 3, filed October 20, 1982), this Court must have a record for meaningful review, that the record must consist of the matters set forth in Pa. R.A.P. 1951(a) and that it is the Board's duty to furnish an adequate record. In the instant case, the Board has filed what it denominates as a "Certification of the Record." Counsel for the Board refers in his brief to certain parts of the record. In fact, the "record" consists of copies of certain correspondence, a copy of an order of this Court (directing Mr. Brown to pursue his administrative remedies) and a certificate of the Chairman of the Board reciting the chronological events noted in the Board's records relating to Mr. Brown together with certain narrative comments which cannot be verified by us because there is no transcript of what actually occurred at any of the hearings afforded Mr. Brown by the Board.

A parolee's right to counsel at parole violation and revocation hearings is now settled. Rambeau v. Rundle, 455 Pa. 8, 17, 314 A.2d 842, 847 (1973); Commonwealth v. Tinson, 433 Pa. 328, 334, 249 A.2d 549, 552 (1969).

Initially, we are confronted by a factual dispute which we cannot resolve because we have an inadequate record. It appears that Mr. Brown was given a revocation hearing and a preliminary violation hearing on July 24, 1980. Item 9 of the Chairman's certificate states that Mr. Brown was represented by counsel at that hearing. Mr. Brown's brief states that he was not. In the absence of a transcription of what actually occurred at that hearing, we cannot provide meaningful review. Only a remand for a rehearing will supply the deficiency.

Concerning the violation hearing on October 23, 1980, we are well satisfied that the Board's action in

[ 70 Pa. Commw. Page 600]

    proceeding with its full Board violation hearing on that date without counsel being present to represent Mr. Brown in spite of his request for such counsel, was error. According to the Chairman's certificate, Mr. Brown asked for a continuance until counsel could be present and the Board denied that request. While the matter of granting continuances is normally a discretionary act of the adjudicatory body which will not be disturbed in the absence of an abuse of that discretion, we believe that the matter of representation by counsel at a parole hearing is of such critical importance that the Board proceeds at its peril when it conducts a hearing where the person entitled to counsel requests counsel but is not represented at ...


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