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LAMONT CONGO v. COMMONWEALTH PENNSYLVANIA (03/11/87)

decided: March 11, 1987.

LAMONT CONGO, 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 Lamont Congo, Parole No. 4028H.

COUNSEL

Lamont Congo, petitioner, for himself.

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

John C. Armstrong, Assistant Public Defender, Parole Division, for Office of Public Defender.

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

Author: Barbieri

[ 104 Pa. Commw. Page 512]

In this parole revocation appeal, we are called upon to determine whether the appeal of Petitioner, Lamont Congo, is "wholly frivolous" so as to entitle his appointed counsel leave to withdraw. Congo appealed an order of the Pennsylvania Board of Probation and Parole (Board) that recommitted him as a convicted parole violator to serve the entire remaining balance of his unexpired term, seven years, three months, and thirteen days. It is counsel's petition for leave to withdraw that is before the Court at this time.

The following facts are pertinent to our disposition of counsel's petition. On November 9, 1981, while on parole, Congo and a friend, Raymond King, were involved in an altercation with one Robert Hendericks. Hendericks and King had fought previously with King being the loser. Congo tried unsuccessfully to shoot Hendericks and passed the gun to King who then succeeded in shooting Hendericks. Hendericks subsequently died of his wounds. Congo was arrested on May 25, 1982, and charged with Murder*fn1 and Possession of an Instrument of Crime.*fn2 He was convicted of Third Degree Murder and Possession of an Instrument of Crime in Philadelphia County Common Pleas Court on December 16, 1982. In the meantime, the Board asserted that he had violated conditions 5B*fn3 and 5C*fn4 of his parole.

[ 104 Pa. Commw. Page 513]

On January 9, 1985, he was given a parole Violation/Revocation Hearing before a quorum of the Board at the State Correctional Institution at Graterford (SCI-Graterford). Following that hearing, the Board, by order dated February 26, 1985, revoked his parole and recommited him as a technical parole violator for thirty-six months and as a convicted parole violator for the entire balance of his unexpired term. The Board also extended the maximum term expiration date of his original sentence to June 4, 1992.

On June 16, 1986, Congo sought administrative relief and reconsideration of the Board's February 26, 1985, order that recommitted him as a technical parole violator in light of the Pennsylvania Supreme Court's decision in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). On June 20, 1986, the Board partially granted the relief he requested by vacating its prior recommitment as a technical parole violator but now required him to serve his entire unexpired term as a convicted parole violator for his murder conviction. He appealed that decision contending the Board should have reduced his backtime by thirty-six months and moved up his re-parole eligibility date accordingly. We appointed the Montgomery County Public Defender to represent him pursuant to Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981), since he was incarcerated in SCI-Graterford, in Montgomery County. Following his review of the record, counsel has petitioned for leave to withdraw under our decision in Craig v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 586, 502 A.2d 758 (1985), on the ground that Congo's appeal is wholly frivolous. See generally Wile, The Right to Counsel Under Pennsylvania Law in State Parole Revocation Hearings, 91 Dick. L.R. 151, 182-183 (1986).

[ 104 Pa. Commw. Page 514]

In reviewing a petition by counsel for leave to withdraw based upon the alleged frivolity of an appeal, we must first ascertain whether counsel has complied with the technical requirements of Craig. In this case, we are satisfied that counsel has done so. Counsel has filed a petition for leave to withdraw as well as an Anders*fn5 brief, both of which have been served upon Congo. Counsel has also informed him of his right to procure substitute counsel or to file a pro se brief raising any points he may deem worthy of merit. Finally, Congo has been provided with thirty days in which to respond to counsel's petition either by the filing of a pro se brief or the procurement of substitute counsel and has duly filed a ...


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