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MICHAEL THOMAS HARPER v. COMMONWEALTH PENNSYLVANIA (01/20/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 20, 1987.

MICHAEL THOMAS HARPER, 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 case of Michael Thomas Harper, Parole No. 1983-K, dated February 28, 1986.

COUNSEL

Claire A. Kimmel, 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 Senior Judge Barbieri.

Author: Barbieri

[ 103 Pa. Commw. Page 253]

This is a parole revocation appeal wherein Michael Thomas Harper, parolee, appeals here an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board parole revocation order. That revocation order recommits him to prison as a technical parole violator to serve twenty-four months on backtime. We reverse in part and remand.

Harper was granted parole by the Board on April 21, 1982, on a sentence of seven to twenty years imposed

[ 103 Pa. Commw. Page 254]

    by Judge James E. Buckingham of the Court of Common Pleas of York County as a result of his conviction for Robbery*fn1 and Burglary.*fn2 He was paroled to a plan in York, Pennsylvania, where he eventually set up his own pest exterminating business. On September 20, 1985, he was arrested on a Board warrant, charged with violating three general conditions of parole, and confined in the York County Prison.

On October 30, 1985, Harper appeared before a Board hearing examiner at the York County Prison for a parole Violation Hearing. He was represented by privately-retained counsel and waived both his preliminary hearing and his right to appear before a quorum of the Board. Following that hearing, the Board ordered his parole revoked and recommitted him to serve twenty-four months on backtime for violating general parole conditions 3B,*fn3 4,*fn4 and 5C.*fn5 He subsequently filed a pro se administrative appeal which the Board denied on February 28, 1986. He then filed a pro se petition for review with this Court who appointed the Centre County Public Defender to represent him. The public defender has since filed an amended petition for review on Harper's behalf.

In this appeal, Harper raises numerous assignments of error on the part of the Board which we shall discuss in turn. We are also cognizant of our limited scope of review of a Board parole revocation order under Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, requiring us to affirm the Board if its findings are supported by substantial evidence, no errors of law committed and no constitutional rights of the parolee

[ 103 Pa. Commw. Page 255]

    are violated. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986); Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).

Prior to reaching the merits of Harper's appeal, we must first address ourselves to Harper's petition to vacate our prior appointment of counsel and permit him to proceed pro se. During the course of an appeal, where a parolee wishes to dismiss counsel and represent himself or obtain new counsel, such a request is directed to the sound discretion of the court. Cf. Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129 (1981) (request made during criminal trial by defendant); see also United States v. Dunlap, 577 F.2d 867 (4th Cir. 1978), cert. denied, 439 U.S. 858 (1978). The sole reason Harper advances for desiring to proceed pro se is that the particular counsel who represented him during this appeal is no longer associated with the Centre County Public Defender's Office and he does not want another attorney to handle his case. We note, however, that the public defender has filed an amended petition for review and has submitted an extensive brief on Harper's behalf. Additionally, Harper advances no claim of ineffectiveness or advances any other complaint concerning the public defender's performance of its duties under Section 6(a)(10) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, 16 P.S. § 9960.6(a)(10). Under these circumstances, we are satisfied the public defender has done all that is required of it in this case, no purpose would be served vacating our prior appointment and permitting Harper to proceed pro se. See Toth v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 19, 466 A.2d 782 (1983). We have previously held that allowing both a prisoner and counsel to represent the issues to this Court would only impede review of the merits of a prisoner's appeal.

[ 103 Pa. Commw. Page 256]

§ 63.4(3)(ii), requiring him to report any arrest to the parole supervision staff within seventy-two hours, is unsupported by substantial evidence. He argues the Board failed to prove there were any "arrests" he was required to report under 37 Pa. Code § 63.4(3)(ii). We agree. The sole evidence submitted by Harper's parole agent to support this violation was copies of four citations issued to him; two were for Vehicle Code violations and the other two were for summary criminal offenses. The citations were issued under the procedure set forth in Pa. R. Crim. P. 51(b), presenting the same factual circumstances occurring in Arentz v. Pennsylvania Board of Probation and Parole, 101 Pa. Commonwealth Ct. 487, 516 A.2d 843 (1986). In Arentz we held summary citations issued under Pa. R. Crim. P. 51(b) did not constitute "arrests" parolees were required to report under 37 Pa. Code § 63.4(3)(ii). Since the issuance of the citations did not evidence any intention to take Harper into custody or place him under the control of the issuing official, they did not constitute "arrests" and he was not required to report them under 37 Pa. Code § 63.4(3)(ii). See Arentz, 101 Pa. Commonwealth Ct. at 489-90, 516 A.2d at 845; cf. Commonwealth v. Lovette, 498 Pa. 665, 671, 450 A.2d 975, 978 (1982) (to constitute an "arrest" the action of the official must evidence an intention to take the subject into custody and place him or her under the control of the arresting officer). Therefore, the Board's finding Harper violated 37 Pa. Code § 63.4(3)(ii) is not supported by substantial evidence since no "arrest" was shown by the Board.

Harper next contends the Board's findings he violated general parole conditions 4, 37 Pa. Code § 63.4(4), requiring him to obey all federal, state and municipal laws, and 5C, 37 Pa. Code § 63.4(5)(iii), requiring him to refrain from assaultive behavior, are unsupported by

[ 103 Pa. Commw. Page 258]

    substantial evidence. Our review of the record satisfies us these findings have adequate evidentiary support.

[ 103 Pa. Commw. Page 259]

To support the violation of 37 Pa. Code § 63.4(4), the parole agent submitted statements from District Justice Mildred Becker stating Harper paid the fines and costs on the traffic citation issued in August, 1984, and the two summary criminal citations.*fn7 Harper admits he paid the fines and costs on those citations. Under Section 6501(b) of the Vehicle Code, 75 Pa. C.S. § 6501(b), the payment of fines and costs on a Vehicle Code citation constitutes a guilty plea to the offense charged. See Department of Transportation, Bureau of Traffic Safety v. Williamson, 91 Pa. Commonwealth Ct. 84, 496 A.2d 910 (1985). Similarly, under Pa. R. Crim. P. 56, the payment of fines and costs of a summary criminal citation constitutes a guilty plea. Cf. Commonwealth v. Kinley, 19 Pa. D. & C. 3d 621 (C.P.Clinton 1981). He is not permitted to relitigate the validity of those guilty pleas at a parole Violation Hearing. Morrissey v. Brewer, 408 U.S. 471 (1972). Those guilty pleas constitute substantial evidence of Harper's violation of 37 Pa. Code § 63.4(4). LaCourt v. Pennsylvania Board of Probation Page 259} and Parole, 87 Pa. Commonwealth Ct. 384, 488 A.2d 70 (1985).

To support the violation of 37 Pa. Code § 63.4(5)(iii), the parole agent produced Edward Plank and Donald Orwig, both of whom testified Harper hit them several times in the face. N.T. (10/30/85) 30-31, 58; R.50-51, 77. That testimony, which the Board credited, is substantial evidence supporting the Board's finding Harper engaged in assaultive behavior in violation of 37 Pa. Code § 63.4(5)(iii). Harper's argument the Board erred by disregarding the conflicting evidence he presented is unpersuasive since it is the Board's function, as the factfinder, to assess evidentiary weight and evaluate witness credibility. Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 49, 484 A.2d 413 (1984). In that role, the Board was permitted to disregard the general release given by Orwig in a related civil case as that release did not conflict in any way with Orwig's testimony at Harper's Violation Hearing. The fact a third witness, Daniel Nunn, gave a prior inconsistent statement regarding the assault incident in which he stated he was not assaulted by Harper, likewise does not deprive the Board's findings of substantial evidentiary support. The mere presence of conflicting testimony or evidence in the record does not mean the Board's findings are not supported by substantial evidence. See Chapman. Accordingly, we must reject Harper's challenge to the Board's findings regarding his violation of 37 Pa. Code §§ 63.4(4) and 63.4(5)(iii).

Harper's third contention is the twenty-four months backtime imposed by the Board is harsh and excessive. The Board's presumptive range for multiple technical parole violations including a violation of condition 5C is eighteen months. 37 Pa. Code § 75.4. If the Board imposes backtime in excess of the maximum presumptive range, it is required to justify the increased backtime by

[ 103 Pa. Commw. Page 260]

    listing the aggravating factors upon which it based the increased backtime. 37 Pa. Code § 75.3(c); Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 38, 483 A.2d 1044 (1984). The Board listed the following reasons to justify the imposition of backtime in excess of the maximum listed in 37 Pa. Code § 75.4:

Aggravating reasons: Overall parole adjustment in terms of behavior was marginal at best. Previously given supervisory conferences and warned by both agent and supervisor about your behavior. Previously continued on parole following obvious violations of drug abuse and failing to report. This hearing does not concern itself with one isolated incident, but rather with several incidents involving assaultive behavior. You are presently under supervision for an assaultive offense. Although the records indicate you have a good employment record, the records also reflect that you purposely chose to ignore the agent's instructions. Warnings by both agent and supervisor, and not be completely [sic] with both agent and a previous employer.

The aggravating reasons, as found by the Board, must also be supported by substantial evidence contained in the record. Cf. Pierce v. Pennsylvania Board of Probation and Parole, 92 Pa. Commonwealth Ct. 457, 500 A.2d 181 (1985) (Board bears the burden of justifying its recommitment time by substantial evidence). Our review of the record, in particular the Parole Violation Report, Board form PBPP-257B, dated October 21, 1985, provides substantial evidence to support the aggravating reasons listed by the Board. The record clearly shows Harper's counsel was provided with a copy of the PBPP-257B, N.T. (10/30/85) 40-42; R.60-62, and the report itself is part of the record. R. 172-174. These aggravating factors, supported by substantial evidence,

[ 103 Pa. Commw. Page 261]

    are sufficient under 37 Pa. Code § 75.3(c) to justify the Board exceeding the maximum presumptive range listed in 37 Pa. Code § 75.4 for multiple technical parole violations including a violation of general condition 5C.

However, in view of our holding the violation of 37 Pa. Code § 63.4(3)(ii) is not supported by substantial evidence, we are required to remand the question of backtime to the Board for its reconsideration in light of that holding. While there are sufficient aggravating reasons to justify the imposition of twenty-four months backtime for the remaining parole violations, the imposition of backtime is solely a matter for the Board's discretion. Gundy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 618, 478 A.2d 139 (1984). That being so, we may not usurp the Board's discretion by presuming it would impose the same backtime for multiple counts of violations of two, rather than three, parole conditions. Cf. Green v. Pennsylvania Board of Probation and Parole, 101 Pa. Commonwealth Ct. 132, 515 A.2d 1006 (1986) (judicial discretion will not be substituted for administrative discretion in parole matters).

Harper next contends the Board failed to prove parole ceased to be an effective rehabilitative tool. Harper's argument is misplaced. The burden of showing the continued viability and effectiveness of parole as a rehabilitative tool, once the Board has proven the parole violation or violations, by a preponderance of the evidence is upon the parolee, not the Board. O'Hara v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 356, 487 A.2d 90 (1985). Once the Board has established the fact a parole violation has occurred, there is a presumption parole has ceased to be an effective tool for rehabilitating the parolee. The burden is then upon the parolee to show, despite the parole violation, parole remains a viable and effective means of

[ 103 Pa. Commw. Page 262]

    rehabilitation. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Simmons v. Pennsylvania Board of Probation and Parole, 74 Pa. Commonwealth Ct. 283, 459 A.2d 897 (1983). See also Pickert v. Pennsylvania Board of Probation and Parole, 100 Pa. Commonwealth Ct. 44, 514 A.2d 252 (1986) (Barbieri, J., concurring). Despite the evidence he presented of a good employment history, we cannot say the Board abused its discretion, in light of the parole violations and his poor parole adjustment history, when it determined Harper was no longer a good parole risk.

The remaining issues raised by Harper, concerning mainly alleged technical defects in his arrest and detention by the Board and alleged procedural defects in his Violation Hearing were not raised before the Board either at the Violation Hearing or on administrative appeal. Therefore, pursuant to Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. § 703(a), and Pa. R.A.P. 1551(a), those issues are waived and cannot be considered for the first time on judicial appeal. Seifrit v. Pennsylvania Board of Probation and Parole, 100 Pa. Commonwealth Ct. 226, 514 A.2d 654 (1986); Lantzy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 626, 477 A.2d 18 (1984).

Having thus disposed of Harper's contentions, we reverse the Board's finding he violated 37 Pa. Code § 63.4(3)(ii) and remand the matter to the Board for its reconsideration of the imposition of backtime consistent with this opinion.

Order

Now, January 20, 1987, the Order of the Pennsylvania Board of Probation and Parole at Parole No. 1983-K, dated February 28, 1986, denying administrative relief to Michael Thomas Harper, is hereby reversed and the parole revocation order at Parole No. 1983-K, dated December

[ 103 Pa. Commw. Page 26319]

, 1985, is hereby reversed insofar as it finds Michael Thomas Harper violated 37 Pa. Code § 63.4(3)(ii) and affirmed insofar as it finds Michael Thomas Harper violated 37 Pa. Code §§ 63.4(4) and 63.4(5)(iii). The matter is remanded to the Pennsylvania Board of Probation and Parole for reconsideration of the imposition of backtime for the remaining parole violations consistent with this opinion. The Motion of Michael Thomas Harper to vacate this Court's prior appointment of counsel is hereby denied and his Motion to Delete Documents from the Certified Record and his Motion for Summary Relief are hereby quashed.

Jurisdiction is relinquished.

Disposition

Order denying relief reversed. Parole revocation order reversed in part and affirmed in part. Motion to vacate counsel appointed by Court denied. Motion for deletion of documents from certified record quashed. Motion for summary relief quashed. Case remanded to Board.


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