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JOHN TOTH v. COMMONWEALTH PENNSYLVANIA (10/20/83)

decided: October 20, 1983.

JOHN TOTH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Pennsylvania Board of Probation and Parole in the case of John Toth v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, Parole No. 8114-G.

COUNSEL

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

No appearance for respondent.

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

Author: Macphail

[ 78 Pa. Commw. Page 19]

In Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1921 (1980), cert. denied, 450 U.S. 1050 (1981) our Supreme Court held that an indigent prisoner was entitled to the assistance of counsel during his direct appeal as of right from a decision of the Board of Probation and Parole (Board) to this Court. Since that decision, this Court has faithfully followed its mandate.

[ 78 Pa. Commw. Page 20]

In Bronson the Court said:

The inadequate and confusing record before us provides the strongest possible argument for the need of counsel in such proceedings. It would be virtually impossible from the information provided by this record to not only assess the merits of appellant's complaints relating to his recommitment but even to identify, with any degree of certainty, the precise nature of appellant's complaints. (Footnote omitted.)

491 Pa. at 552, 421 A.2d 1022. We note then, 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 interests of the prisoner.

The instant case presents the problem that was certain to arise in due course: where counsel is appointed to represent an indigent prisoner and dutifully files an advocate's brief with which the prisoner does not agree, 1) may counsel withdraw and 2) may the prisoner file a pro se brief? The counsel who filed a definitive brief in the instant case is experienced in the appellate courts of Pennsylvania. He has timely filed a brief which, in our opinion, adequately addresses the issues raised in the petition for review filed on Mr. Toth's behalf.*fn1 Toth then sent a letter addressed to an administrative officer of our Court with a copy to his counsel complaining that his counsel's brief is inaccurate and would render his appeal

[ 78 Pa. Commw. Page 21]

    wholly ineffective.*fn2 The letter requests the right to file a pro se brief but does not ask ...


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