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AUGUST PICKERT v. COMMONWEALTH PENNSYLVANIA (08/20/86)

decided: August 20, 1986.

AUGUST PICKERT, 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 August Pickert, Parole No. 3847-R, dated October 18, 1985.

COUNSEL

Allen P. Powanda, Assistant Public Defender, for petitioner.

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

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

Author: Craig

[ 100 Pa. Commw. Page 45]

August Pickert appeals from a decision of the Pennsylvania Board of Probation and Parole denying his petition for administrative relief from a board order which recommitted him for a recommitment (backtime) period of twenty-four months as a technical and convicted parole violator. We vacate and remand.

On December 5, 1984, the board had granted Mr. Pickert parole from a two-to-four-year sentence which he had been serving for a burglary conviction. While Mr. Pickert was on parole supervision, the North Coventry police arrested him on February 6, 1985, and filed against him criminal charges for the unauthorized use of an automobile and possession of a controlled substance. Mr. Pickert pleaded guilty to both charges and was convicted. On August 12, 1985, the board conducted a parole violation hearing and on October 18, 1985, determined Mr. Pickert to be a technical and convicted parole violator. The board recommitted Mr. Pickert to serve twenty-four months backtime, twelve months as a technical parole violator and twelve months as a convicted parole violator.

The board's recommitment order was based upon Mr. Pickert's two new convictions and violation of conditions 1 and 5(a) of his parole. Condition 1 prohibited Mr. Pickert from leaving the district to which he was paroled without permission of the parole supervision staff, and condition 5(a) prohibited Mr. Pickert from possession of controlled substances.

[ 100 Pa. Commw. Page 46]

Mr. Pickert contends that he was denied his due process right to effective assistance of counsel because his counsel, at the parole violation hearing, failed to object to the admission of documents allegedly containing hearsay. In LaCourt v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 384, 488 A.2d 70 (1985), this court stated that a claim of ineffective assistance of counsel has two parts, both of which must be met for a parolee to be entitled to relief. The parolee must show that his counsel's errors were so serious that he was not functioning as counsel guaranteed under law, and that counsel's deficient performance prejudiced his defense.

The record shows that neither element of the test has been met. First, counsel's alleged failure to object to documents allegedly containing hearsay did not constitute such a serious error that he was not functioning as counsel guaranteed under law. A parolee's right to counsel at a parole revocation hearing does not entitle a parolee to the best or most experienced counsel available. LaCourt. Second, counsel's alleged failure to object to those documents would not have changed the result of the proceeding because Mr. Pickert, at the parole violation hearing, admitted violating conditions 1 and 5(a) of his parole. The board, in its decision, stated that the evidence it relied upon in finding that Mr. Pickert had violated the conditions of his parole were Mr. Pickert's admissions and convictions. Accordingly, Mr. Pickert was not denied his due process right to effective assistance of counsel.

Further, Mr. Pickert argues that he was denied his due process right to effective assistance of counsel because his counsel failed to object to the board's untimely preliminary hearing. Although the board's regulations require the board to conduct a ...


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