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PAUL HELVY v. COMMONWEALTH PENNSYLVANIA (06/09/87)

decided: June 9, 1987.

PAUL HELVY, 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 Paul Helvy, Parole No. 5667J.

COUNSEL

Daniel J. Mancini, Assistant Public Defender, for petitioner.

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

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 106 Pa. Commw. Page 488]

Paul Helvy (petitioner) petitions for review of the September 12, 1985 recommitment order and the February 5, 1986 denial of administrative relief of the Pennsylvania Board of Probation and Parole (Board).

The petitioner, while on parole, was arrested on a detainer warrant on December 25, 1984 and charged with armed robbery and conspiracy. He was subsequently charged with technical violations of parole conditions 5(i) (abstain from unlawful possession or sale of narcotics and drugs) and 5(ii) (refrain from owning or possessing firearms or other weapons). 37 Pa. Code § 65.4. On May 2, 1985, after a preliminary revocation hearing at which the petitioner was represented by the Allegheny County Public Defender's Office, he was recommitted to serve eighteen months backtime for the

[ 106 Pa. Commw. Page 489]

    above-mentioned technical parole violations. On June 26, 1985 his pro se request for administrative relief was denied as being untimely filed. 37 Pa. Code § 71.5(h).

On June 5, 1985, the petitioner pled guilty to the robbery charge*fn1 and was sentenced to serve from four to eight years in prison. On September 12, 1985, after an August 14, 1985 full board revocation hearing at which the petitioner was represented by the Allegheny County Public Defender's Office, the Board reaffirmed its eighteen month recommitment of the petitioner as a technical parole violator and recommitted him as a convicted parole violator to serve an additional forty-eight months backtime for his robbery conviction.*fn2 On February 5, 1986, the petitioner's January 29, 1986 request for administrative relief was denied.

The petitioner filed a petition for review with this Court on February 28, 1986, and the Board filed a motion to quash that petition as untimely.*fn3 On June 9, 1986, the Board's motion was denied because the petitioner's request for review of the September 12, 1985 and February 5, 1986 orders raised the issue of the ineffectiveness of counsel in failing to object to allegedly irrelevant and hearsay evidence at the petitioner's August 14, 1985 revocation hearing and in failing to file a request for administrative relief from the September 12, 1985 recommitment order.*fn4

[ 106 Pa. Commw. Page 490]

It is well-settled that an indigent, incarcerated prisoner is entitled to the assistance of counsel at any revocation hearing, whether as a convicted violator or as a technical violator, and in the prosecution of any appeals therefrom. Brewer v. Pennsylvania Board of Probation and Parole, 90 Pa. Commonwealth Ct. 75, 494 A.2d 36 (1985). And, in order to prevail on a claim of ineffective assistance of counsel, the petitioner must show that counsel made errors so serious that he was not functioning as guaranteed by law, and that the deficient representation ...


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