decided: June 1, 1984.
NICHOLAS CHANCEY, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT
Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Nicholas Chancey, Parole Number 7314-M, dated January 17, 1983.
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 Williams, Jr., Doyle and Barry, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 83 Pa. Commw. Page 43]
Nicholas Chancey (petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) dated February 28, 1983 denying him administrative relief from a Board recommitment order revoking his parole and recommitting him as a convicted and a technical parole violator to serve forty-two months on backtime.*fn1 Petitioner contends the Board violated his due process rights by failing to provide him timely parole revocation hearings and as a result of that failure he is entitled to have the direct and technical parole violations dismissed and his parole reinstated.
Petitioner was paroled by the Board effective August 7, 1980 on a sentence of two to ten years imposed by the Court of Common Pleas of Philadelphia County after petitioner violated probation received on a Burglary*fn2 conviction. Petitioner was arrested by Philadelphia Police on March 15, 1981 on new criminal charges*fn3 and subsequently released on bail. On April
[ 83 Pa. Commw. Page 442]
, 1981 petitioner was arrested in Bensalem, Bucks County, on other Philadelphia County criminal charges.*fn4 The Board lodged its detainer against petitioner on April 16, 1981 based on the new charges and technical parole violations.*fn5
A Preliminary and Detention Hearing was scheduled for April 28, 1981 at the Philadelphia House of Correction. Prior to that hearing, petitioner was hospitalized with a serious illness and the April 28, 1981 hearing was continued. Hearings were scheduled for May 5, 1981, May 20, 1981, June 23, 1981, and October 20, 1981. On each of these dates, continuance requests were made on petitioner's behalf by an attorney from the Defender Association of Philadelphia due to petitioner's hospitalization. A Preliminary and Detention hearing was held on November 6, 1981 at which petitioner was represented by an attorney from the Philadelphia Defender Association. While petitioner objected to the timeliness of the hearing, he did not voice any complaints as to the quality of legal representation he was afforded by the Philadelphia
[ 83 Pa. Commw. Page 45]
Defender Association. Petitioner also requested a full Board Violation Hearing at this time.
The Board scheduled a full Board Violation Hearing at the Philadelphia House of Correction for January 7, 1982. At that time, petitioner requested a continuance of the hearing until his pending criminal charges were disposed of to include post-trial motions and sentencing. The written continuance request was signed by the same attorney from the Philadelphia Defender Association who represented petitioner at the November 6, 1981 hearing and specifically waived all timeliness issues.*fn6
Petitioner was convicted on April 15, 1982 of violating the Uniform Firearms Act*fn7 in Philadelphia County Common Pleas Court and sentenced to a term of two and one-half to five years on November 14, 1982. On December 3, 1982, petitioner was transferred to the State Correctional Institution at Graterford (SCI-Graterford).
The Board held a full Board Violation and Revocation Hearing for petitioner at SCI-Graterford on January 4, 1983. While an attorney from the Montgomery County Public Defender's Office was available to petitioner;*fn8 petitioner elected to represent himself at
[ 83 Pa. Commw. Page 46]
the hearing with the public defender attending the hearing as standby co-counsel.
On January 17, 1983 the Board ordered petitioner recommitted as a technical violator to eighteen months and as a convicted violator to serve twenty-four months for a total of forty-two months or backtime. Petitioner's maximum term expiration date was extended to June 10, 1989.*fn9 Petitioner filed an administrative appeal with the Board challenging the timeliness of the November 6, 1981 Preliminary Hearing and the January 4, 1983 Violation/Revocation Hearing which was denied.
Petitioner first contends that his November 6, 1981 Preliminary Hearing was untimely as held more than fifteen days after the lodging of the Board's warrant requiring the dismissal of the technical violations. The Board's regulations require that a Preliminary Hearing on technical parole violations be held within fifteen days of the lodging of the Board's warrant. 37 Pa. Code § 71.2(1)(ii). The Board lodged its warant against petitioner on April 16, 1981 and scheduled a hearing for April 28, 1981, twelve days after the warrant was lodged. That hearing was continued due to petitioner's unavailability caused by his hospitalization. The other scheduled hearings were continued at the written request of counsel from the Defender Association who purported to represent petitioner. The Board is permitted to continue its hearings due to the unavailability of the parolee or defense counsel or at the request of either the parolee or defense counsel and such time is excluded from the computation of
[ 83 Pa. Commw. Page 47]
whether a hearing is timely. 37 Pa. Code § 71.5(i). Petitioner asserts that the public defender's continuance requests were invalid as they were made without petitioner's knowledge or consent and the public defender was not representing him at that time. In Jones v. Pennsylvania Board of Probation and Parole, 72 Pa. Commonwealth Ct. 14, 455 A.2d 778 (1983), we held that the Board, like a court, is entitled to proceed on the basis that a lawyer does represent the person whom the lawyer, as an officer of the court, purports to represent. Id. at 16, 455 A.2d at 779.*fn10 We also reject petitioner's assertion that any continuance request is invalid unless it was made with petitioner's prior knowledge and consent. This claim is patently frivolous. Continuances are a matter of sound trial strategy within the reasonable purview of counsel. To hold that counsel cannot unilaterally request continuances that would delay a hearing beyond the time limits imposed by the Board's regulations would severly hamper counsel's ability to effectuate trial strategy. Commonwealth v. Walley, 262 Pa. Superior Ct. 496, 502, 396 A.2d 1280, 1283 (1978). We find the Board was entitled to rely upon the continuance requests of counsel and that the November 6, 1981 Preliminary Hearing was timely.
Petitioner's next contention is that his Violation/Revocation Hearing held on January 4, 1983 at SCI-Graterford was untimely as beyond the 120 days following a new conviction as required by the Board's regulations. 37 Pa. Code § 71.4(2). Petitioner was convicted of the new criminal charges in Philadelphia County Common Pleas Court on April 15, 1982. Petitioner, however, had requested a continuance until
[ 83 Pa. Commw. Page 48]
disposition of post-trial motions and sentencing in the event of conviction. This request specifically waived all timeliness issues.*fn11 Petitioner was sentenced on November 14, 1982 and transferred to SCI-Graterford on December 3, 1982. Had petitioner waived the full Board Revocation Hearing, the 120 days in which the Board has to give a convicted violator a hearing would have commenced on November 14, 1982. However, as petitioner did not waive the full Board Hearing, the 120 days does not commence until petitioner's return to a State Correctional Institution. 37 Pa. Code § 71.4(2)(i).*fn12 Petitioner was returned to SCI-Graterford on December 3, 1982 and was given his full Board hearing on January 4, 1983, well within the 120 day period mandated by 37 Pa. Code § 71.4(2). We therefore find petitioner's full Board Violation/Revocation Hearing of January 4, 1983 was timely held.
Having found both petitioner's Preliminary Hearing and Violation/Revocation Hearing were held in a timely manner, we must affirm the Board's denial of administrative relief.
And Now, the 1st day of June, 1984, the order of the Pennsylvania Board of Probation and Parole dated February 28, 1983 at Parole Number 7314-M denying administrative relief is hereby affirmed.