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EDWARD HILLANBRAND v. COMMONWEALTH PENNSYLVANIA (04/23/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 23, 1986.

EDWARD HILLANBRAND, PETITIONER
v.
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 Edward Hillanbrand, Parole No. 8604-P.

COUNSEL

Scott F. Breidenbach, Assistant Public Defender, for petitioner.

No appearance for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 96 Pa. Commw. Page 485]

Edward Hillanbrand has petitioned for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board parole revocation order. That revocation order revoked his parole and recommitted him to prison to serve twenty-four months on backtime as a technical parole violator and fifteen months on backtime as a convicted parole violator, for a total of thirty-nine months

[ 96 Pa. Commw. Page 486]

    on backtime. In that Hillanbrand was incarcerated at the State Correctional Institution at Graterford (SCI-Graterford) at the time he filed his pro se petition for review, and had filed affidavit of indigency as required by Section 6(b) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(b), we appointed the Public Defender of Montgomery County to represent him in this appeal. See Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981); Brewer v. Pennsylvania Board of Probation and Parole, 90 Pa. Commonwealth Ct. 75, 494 A.2d 36 (1985). Following receipt of the Board's certified record, the public defender filed a motion to withdraw as counsel on the ground that the appeal was wholly frivolous due to Hillanbrand's failure to file his appeal within thirty days of the Board's administrative order and has filed an Anders*fn1 brief. Hillanbrand has filed an answer to counsel's motion to withdraw in which he requested appointment of different counsel. It is the public defender's motion to withdraw and Hillanbrand's cross-motion for appointment of different counsel which is before the Court at this time.

The following facts are pertinent to our disposition of the motions presently before us. Hillanbrand was initially sentenced to a term of two to ten years in the Court of Common Pleas of Philadelphia County following his conviction for the offense of Robbery.*fn2 He was granted parole by the Board on that sentence effective February 14, 1983, at which time he was released from the State Correctional Institution at Rockview (SCI-Rockview).

[ 96 Pa. Commw. Page 487]

Hillanbrand was arrested on June 19, 1984 by parole agents on technical parole violation charges.*fn3 In addition to those technical violation charges, he subsequently was convicted of new criminal charges in Montgomery County Common Pleas Court.*fn4 On April

[ 96 Pa. Commw. Page 48812]

, 1985, he was given a parole Violation and Revocation Hearing at SCI-Graterford before a Board hearing examiner. He was represented by privately-retained counsel at that hearing. Following that hearing, the Board, by order dated May 29, 1985, revoked his parole and ordered that he be recommitted as a technical and convicted parole violator, as noted, to serve a total of thirty-nine months on backtime. He filed a pro se administrative appeal with the Board pursuant to 37 Pa. Code § 71.5(h) which was denied on July 26, 1985. Thereafter he filed a pro se petition for review and an application to proceed in forma pauperis and for appointment of counsel. The public defender who was appointed to represent him, as noted, has since filed a motion to withdraw accompanied by an Anders brief. After Hillanbrand was transferred from SCI-Graterford to SCI-Rockview, he filed his answer to the public defender's motion to withdraw in which he requested that this Court appoint different counsel.

The public defender's motion to withdraw is based upon his conclusion that this appeal is wholly frivolous due to Hillanbrand's failure to file his petition for review within thirty days of the Board's order which denied him administrative relief. Hillanbrand's cross-motion for appointment of different counsel is based upon his transfer by the Department of Corrections from SCI-Graterford, in Montgomery County, to SCI-Rockview, in Centre County, which transfers the obligation to represent him from the public defender of Montgomery County to the public defender of Centre County under this Court's decision in Brewer. We shall address these matters in the order stated.

We have previously held, in the context of an appeal of a Board parole revocation order, that a necessary prerequisite to appointed counsel requesting leave of this Court to withdraw from representing an indigent

[ 96 Pa. Commw. Page 489]

    prisoner is counsel's conclusion, after conducting an exhaustive examination of the record, that the appeal is wholly frivolous. Winters v. Pennsylvania Board of Probation and Parole, 94 Pa. Commonwealth Ct. 236, 247, 503 A.2d 488, 494 (1986); Craig v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 586, 592, 502 A.2d 758, 761 (1985); Scott v. Jacobs, 76 Pa. Commonwealth Ct. 100, 463 A.2d 110 (1983). But see Toth v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 19, 466 A.2d 782 (1983) (Right to withdraw recognized under Disciplinary Rule 2-110(C)(1)(d) of the Code of Professional Responsibility where the client's conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively). Once counsel has concluded that the appeal is wholly frivolous, counsel must: (1) notify the prisoner of his request to withdraw; (2) furnish the prisoner with a copy of the Anders brief filed in the matter; and (3) advise the prisoner that he has a right to retain new counsel or raise any points which he deems worthy of merit in a pro se brief. At that point this Court allows the prisoner thirty days in which to respond to counsel's motion to withdraw either by retaining new counsel or filing a pro se brief. Santiago v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 51, 56, 506 A.2d 517, 519 (1986); Craig, 93 Pa. Commonwealth Ct. at 590, 502 A.2d at 760. Our examination of the record before us satisfies us that the public defender here has met the requirements set forth in Craig and Santiago and that the matter is ripe for our disposition.

Once counsel has complied with the requirements of Craig, it becomes our responsibility, as the reviewing court, to make a full examination of the record to decide whether the appeal is in fact wholly frivolous. Craig,

[ 96 Pa. Commw. Page 49093]

Pa. Commonwealth Ct. at 593, 502 A.2d at 761; see also Commonwealth v. McClendon, 495 Pa. 467, 471, 434, A.2d 1185, 1187 (1981). We have, therefore, reviewed the entire record and concur in the public defender's judgment that this appeal is wholly frivolous. We have also reviewed the brief filed by the public defender and are satisfied that it meets the requirements of Anders and McClendon.

The record shows that the Board's order which denied Hillanbrand administrative relief was dated July 26, 1985. Under the Board's administrative relief regulation, 37 Pa. Code § 71.5(h), the Board's order becomes a final, appealable order upon that date. At that point, Hillanbrand had thirty days in which to file his petition for review with this Court. Pa. R.A.P. 1512(a)(1). The record clearly shows that Hillanbrand did not mail his petition to review to this Court until August 28, 1985 and it was not received and filed by our Prothonotary's Office until August 30, 1985, both of which are beyond the thirty day appeal period of Pa. R.A.P. 1512(a)(1). An appellate court may not enlarge the time for filing a petition for review. Pa. R.A.P. 105(b). As we noted in Altieri v. Pennsylvania Board of Probation and Parole, 88 Pa. Commonwealth Ct. 592, 495 A.2d 213 (1985):

The timeliness of an appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of the court to hear and decide the appeal. . . . The courts have no power to extend the period for taking appeals, absent fraud or a breakdown in the court's operation through a default of its officers. (Citations omitted.)

88 Pa. Commonwealth Ct. at 593, 495 A.2d at 214, see also St. Clair v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 561, 493 A.2d 146 (1985). Since no fraud or breakdown in the court's

[ 96 Pa. Commw. Page 491]

    operations is alleged, Hillanbrand's failure to file a timely petition for review deprives this Court of jurisdiction to consider the merits of his contentions. See also Moore v. Pennsylvania Board of Probation and Parole, Pa. Commonwealth Ct. , 503 A.2d 1099 (1986) (Board's negligence in mailing revocation order to wrong address resulting in the prisoner failing to receive notice amounted to a breakdown in operations allowing the prisoner to file administrative appeal nunc pro tunc). The public defender was, therefore, properly discharging his duty to both his client and the Court by concluding that the appeal was wholly frivolous due to untimeliness and seeking the Court's leave to withdraw. See Albright v. Department of Public Welfare, 71 Pa. Commonwealth Ct. 114, 454 A.2d 1149 (1983) (per curiam) (Under Ethical Consideration 7-4 of the Code of Professional Responsibility it is unethical for a lawyer to represent a client in a frivolous appeal due to untimeliness).

We now consider Hillanbrand's cross-motion for appointment of substitute counsel. In Brewer, we held that where a prisoner is transferred by the Department of Corrections from one state correctional institution to another during the pendency of his appeal from a Board parole revocation order, the public defender of the county to which the prisoner is transferred and physically located is responsible for providing him representation in appealing the Board's order. As here, the facts in Brewer involved a prisoner who was incarcerated at SCI-Graterford when he filed his petition for review and subsequently transferred to SCI-Rockview.*fn5 In so

[ 96 Pa. Commw. Page 492]

    holding, we concluded that under the rationale of Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32, 424 A.2d 561 (1981), even though there should be minimal contacts necessary between the prisoner and counsel now that the appeal has been perfected, the prisoner must have reasonable access to his counsel during the appellate process. 90 Pa. Commonwealth Ct. at 79, 494 A.2d at 38.

There are, however, several facts present in this case which make the circumstances before us here significantly different from those present in Brewer. In

[ 96 Pa. Commw. Page 493]

    to consider the merits of Hillanbrand's contentions, we must dismiss the appeal as untimely filed.*fn7

Order

Now, April 23, 1986, after an extensive and independent examination of the entire record, the petition of Scott F. Breidenbach, Esquire, for leave to withdraw as counsel for petitioner is hereby granted and counsel's entry of appearance on behalf of petitioner is ordered stricken. The cross-motion of Edward Hillanbrand for appointment of different counsel is hereby denied. In that the Court's independent examination of the record has shown that the petition for review was not filed within the time period mandated by Pennsylvania Rule of Appellate Procedure 1512(a)(1), this Court is without jurisdiction to hear this appeal and the appeal is dismissed with prejudice.

Disposition

Motion to withdraw granted. Appeal dismissed.


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