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WENDELL MURRAY v. FRED W. JACOBS ET AL. (07/17/86)

decided: July 17, 1986.

WENDELL MURRAY, PETITIONER
v.
FRED W. JACOBS ET AL., RESPONDENTS



Appeal from the Order of the Pennsylvania Board of Probation and Parole, in case of Wendell Murray, Parole No. 6557K.

COUNSEL

Frederick I. Huganir, Assistant Public Defender, for petitioner.

Robert A. Greevy, Chief Counsel, with him, Arthur R. Thomas, Assistant Chief Counsel, for respondents.

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

Author: Colins

[ 99 Pa. Commw. Page 40]

Wendell Murray (petitioner) seeks review of an order of the Pennsylvania Board of Probation and Parole (Board) which recommitted him to prison for twelve (12) months backtime. Petitioner alleges that he was denied his right to counsel and his right to a hearing within a reasonable time; therefore, he posits, the Board's order should be reversed. The issue before this Court is whether either or both of these rights were improperly denied petitioner and, if so, what the appropriate remedy should be.

The record presents the following factual scenario. Petitioner was originally convicted for the offense of

[ 99 Pa. Commw. Page 41]

    robbery, violation of the Uniform Firearms Act, and delivery of drugs, for which he was sentenced to serve seven and one-half (7-1/2) to fifteen (15) years, with minimum and maximum expiration dates of April 21, 1984, and October 21, 1991, respectively. Petitioner was released on parole effective April 21, 1984. Unfortunately, he was unable to return to society without incident, and he was arrested on November 10, 1984, on the charges of retail theft and resisting arrest. These charges emanated from an incident involving petitioner's shoplifting a single package of cigarettes. Petitioner was held in the Cumberland County Prison, and he did not post bond relative to the new charges.

On April 30, 1985, petitioner appeared before Judge Hoffer of the Court of Common Pleas of Cumberland County and entered a plea of guilty to retail theft. The charge of resisting arrest was withdrawn by the District Attorney at this time. He was sentenced to a term of five and one-half (5-1/2) to twenty (20) months running from the date of incarceration (November 10, 1984); having served this sentence, he was granted immediate parole. The order of the trial court specifically stated "[i]t appearing that the defendant has served this sentence, we place him on parole to the state detainer as soon as the officials can pick him up." (Emphasis added.)

Petitioner was transferred to a State Correctional Institution on May 7, 1985. A hearing was scheduled for June 17, 1985; however, the hearing was continued at the Board's request. It was rescheduled and held on August 26, 1985, resulting in the Board's order to recommit petitioner.*fn1

[ 99 Pa. Commw. Page 42]

Petitioner first argues that he was denied his right to counsel at the August 26, 1985 hearing. The right to counsel is a statutory right. Coades v. Pennsylvania Board of Probation and Parole, 84 Pa. Commonwealth Ct. 484, 496, 480 A.2d 1298, 1305 (1984). It is well-settled that under Pennsylvania law a parolee is entitled to assistance of counsel at the Board's revocation hearing and to free counsel if indigent. 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). Of course, petitioner may waive his right to counsel, provided that such waiver is sufficient to satisfy a test of fundamental fairness under Pennsylvania law. Coades at 499, 480 A.2d at 1305. The Board's regulations require that a parolee be informed of his right to counsel at two stages of revocation proceedings. Prior to a hearing, he must be informed of his right to counsel, his right to free counsel if indigent, and that he will not be penalized for requesting counsel. 37 Pa. Code §§ 71.4(3)(ii)-(iii). At the hearing, the Board's regulations provide:

If a parolee appears without counsel at the hearing, it shall first be determined that he understands his right to counsel, his right to free counsel if he is unable to afford counsel, and that he shall not be penalized for requesting counsel. If the Examiner is satisfied that the refusal of counsel by the parolee is knowingly, intelligently, and freely made, he shall then accept and make a part of the record a written waiver to that effect.

37 Pa. Code § 71.4(5)(iv).

While the record does contain a signed waiver of representation of counsel, dated May 7, 1985, on a form this Court has previously approved, Coades, it is equally clear that this waiver was revoked. Counsel for petitioner

[ 99 Pa. Commw. Page 43]

    appeared for the hearing of June 17, 1985, which was continued indefinitely. Counsel was also given notice on August 23, 1985, of the August 26, 1985 hearing. More telling is the following ...


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