Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of David Coades, dated August 8, 1977.
Charles B. Swigart, 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. Dissenting Opinion by Judge Barry.
[ 84 Pa. Commw. Page 486]
This is a petition by David Coades (petitioner) seeking review of an order of the Pennsylvania Board of Probation and Parole (Board) which recommits him to prison as a convicted parole violator to serve backtime. We affirm.
The record presents the following factual scenario. Petitioner was originally sentenced on June 16, 1972 by Judge DeFuria of the Delaware County Common Pleas Court to a term of two to four years for a Robbery*fn1 conviction and a consecutive two to four year sentence for a second Robbery conviction. On July 26, 1972 petitioner was sentenced by Judge Lawhorne of the Delaware County Court of Common Pleas to a term of four to eight years for a third Robbery Conviction to run concurrently with Judge DeFuria's sentence. Petitioner was subsequently granted parole by the Board and released on parole from the State Correctional Institution at Dallas (SCI-Dallas) on June 5, 1975.
On January 29, 1976 petitioner was arrested by Delaware County authorities following an armed robbery of a Delaware County supermarket and charged with Robbery, Simple Assault,*fn2 and Theft by Unlawful Taking*fn3 and was incarcerated in Delaware County Prison. On February 3, 1976 petitioner had the additional charges of Murder,*fn4 Robbery, Burglary,*fn5 Conspiracy,*fn6
[ 84 Pa. Commw. Page 487]
Possession of an Offensive Weapon,*fn7 and Possession of an Instrument of Crime*fn8 placed against him by Chester County authorities. Petitioner was convicted of the Chester County charges on April 28, 1976 and convicted of the Delaware County charges on June 3, 1976. Petitioner received a sentence of three to six years on the Delaware County charges on June 17, 1977.*fn9 On June 23, 1977, petitioner was transferred from Delaware County Prison to the State Correctional Institution at Graterford (SCI-Graterford).
On August 4, 1977 petitioner was given a full Board Revocation Hearing at SCI-Graterford. Petitioner, after a discussion with the Board, waived counsel representation and executed a written waiver, Board form PBPP-72. Petitioner informed the Board that while he desired counsel representation, he was unable to procure the presence of counsel, despite his parole agent's assistance, and did not desire to further delay his parole matter. On August 8, 1977 the Board ordered petitioner recommitted as a convicted parole violator on the basis of the new convictions in Chester and Delaware Counties to be reviewed in June 1979.*fn10
[ 84 Pa. Commw. Page 488]
Petitioner presents two issues on appeal which he contends require reversal of the Board's recommitment order. The first contention is that the Board failed to provide him with a prompt revocation hearing following his new convictions entitling him to a dismissal with prejudice of the parole violation charges. The second contention is that the Board violated his right to counsel representation by proceeding with the August 4, 1977 revocation hearing where he was unrepresented by counsel and did not make an informed, intelligent and voluntary waiver of his right to counsel. Under Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, our scope of review of a Board recommitment order is limited to determining whether necessary findings are supported by substantial evidence, whether the Board committed an error of law and whether petitioner's constitutional rights were violated. Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).
We shall first deal with petitioner's assertion that the Board failed to provide him with a prompt revocation hearing. We first note that the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), held that a parole revocation hearing must be held within a reasonable time after the parolee is taken into custody. Id. at 488. Where the violation of parole charged is a new criminal conviction, the event which triggers the reasonable time requirement of Morrissey is the verdict or plea of guilty and not the judgment of sentence. United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404, 407 (E.D. Pa. 1975). By administrative regulation, Section 71.4(2) of Title 37 of the Pennsylvania Code, 37 Pa. Code § 71.4(2), the Board has determined that 120 days is a reasonable time in which to provide a parolee a revocation hearing
[ 84 Pa. Commw. Page 489]
following a new criminal conviction. 37 Pa. Code § 71.4(2), reads in pertinent part as follows:
(2) The hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere of the guilty verdict at the highest trial court level except as follows:
(i) If the parolee is confined outside the jurisdiction of the Pennsylvania Bureau of Correction, such as confinement out-of-state, confinement in a Federal correctional institution, or confinement in a county correctional institution where the parolee has not waived the full Board Revocation Hearing required by Commonwealth of Pennsylvania ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), in which case the final Revocation Hearing shall be held within 120 days of the official verification of the Board of the return of the parolee to a State correctional facility. . . . (Emphasis added.)
As petitioner correctly points out, his August 4, 1977 revocation hearing at SCI-Graterford was more than 120 days beyond his April 28, 1976 Chester County conviction and his June 3, 1976 Delaware County conviction. However, petitioner had, on May 13, 1976, requested a full Board hearing as evidenced by his written request which is contained in the record. Also, petitioner was incarcerated in Delaware County Prison until June 23, 1977 when he was received at SCI-Graterford. Under 37 Pa. Code § 71.4(2)(i), the 120-day period does not commence for parolees housed in county prisons and who request full Board hearings until the parolee is received at a State correctional facility.*fn11 Petitioner was given his full Board Revocation
[ 84 Pa. Commw. Page 490]
Hearing at SCI-Graterford on August 4, 1977, forty-two days after his reception at SCI-Graterford from Delaware County Prison and well within the 120-day time limit of 37 Pa. Code § 71.4(2). Petitioner's revocation hearing was, therefore, timely.
Petitioner next argues that the Board violated his right to counsel.*fn12 Petitioner contends that he desired counsel to represent him before the Board but could not obtain counsel. While petitioner admits signing a waiver of counsel representation, he argues it was neither informed nor voluntary and, therefore, ineffective.
It is now well-settled that under Pennsylvania law a parolee is entitled to assistance of counsel at the Board's revocation hearings and to free counsel if indigent. See Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973); Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969); Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32, 424 A.2d 561 (1981). However, prior to determining whether petitioner made a valid waiver of his right to counsel, we must first examine the nature of this right so that we may apply the proper standard of review.
We first note that a parolee's right to assistance of counsel at a Board revocation hearing precedes the
[ 84 Pa. Commw. Page 491]
limited right under the Federal Constitution acknowledged by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778 (1973). In 1969, our Supreme Court in Commonwealth v. Tinson first held that a parolee is entitled to assistance of counsel at parole revocation proceedings. The Tinson Court held that a parole revocation proceeding is a "critical stage" of a criminal proceeding at which counsel was constitutionally required to protect the substantial rights of a criminal accused. 433 Pa. at 332, 249 A.2d at 551. The Tinson Court's holding that a parole revocation is a "critical stage" of a criminal proceeding was based upon the United States Supreme Court's holding in Mempa v. Rhay, 389 U.S. 128 (1967) where the Supreme Court held counsel was constitutionally required at a hearing where probation may be revoked and sentence entered.*fn13 Id. at 134.
In 1972 our Supreme Court reaffirmed its holding in Tinson in its decision in Commonwealth ex rel. Rambeau v. Rundle and found counsel was crucial in presenting mitigating circumstances, if any were existent, to the Board. 455 Pa. at 18, 314 A.2d at 847. However, prior to our Supreme Court's decision in
[ 84 Pa. Commw. Page 492]
at parole revocation hearings would be both undesirable and unnecessary. The only occasions whereby the right to counsel at parole revocation hearings is of federal constitutional magnitude is where fundamental fairness under the due process clause of the Fourteenth Amendment requires counsel. 411 U.S. at 790. In cases such as petitioner's where the only violation of parole charged is a new criminal conviction, the Gagnon Court held counsel is constitutionally required only where there is substantial justification or mitigation which would render revocation inappropriate and where the justification and mitigation is complex or otherwise difficult to develop or present. Id. at 790-91 (Emphasis added).
The record shows that petitioner's circumstances clearly do not meet the Gagnon requirements for petitioner's right to counsel being of constitutional magnitude under the due process clause of the Fourteenth Amendment. The only parole violation charges brought against petitioner were his new criminal convictions in Chester and Delaware Counties. As those new convictions were a matter of public record, in order to have his right to counsel rise to being of constitutional magnitude under Gagnon, petitioner would have to allege that there existed substantial mitigating circumstances or justification for the offenses which would render revocation inappropriate and that the mitigation or justification is complex or otherwise difficult to present. See Gagnon, 411 U.S. at 790. Here, no such assertion of mitigation or justification was made or briefed by petitioner or counsel. Petitioner was convicted of new criminal offenses in courts of record. That ...