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FRED J. MANGONE v. COMMONWEALTH PENNSYLVANIA (11/25/88)

decided: November 25, 1988.

FRED J. MANGONE, 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 Fred Mangone, Parole No. 4176M.

COUNSEL

Robert B. Stewart, III and Fred J. Mangone, pro se, for petitioner.

Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 123 Pa. Commw. Page 35]

Counsel for Petitioner, Fred Mangone (Mangone), has filed a petition for leave to withdraw as counsel for Petitioner on the basis that Petitioner's appeal is frivolous.

This Court held in Craig v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 586, 502 A.2d 758 (1985), that where counsel seeks leave to withdraw on grounds that an appeal is frivolous, counsel must petition the court on the basis that the appeal is frivolous; file an advocate's or Anders brief and serve a copy thereof along with a copy of counsel's petition upon

[ 123 Pa. Commw. Page 36]

    the parolee;*fn1 and give notice of parolee's right to secure the services of substitute counsel or file a pro se brief raising any points the parolee deems worthy of merit.*fn2 It is then the responsibility of this Court to make an independent examination of the record to determine if the appeal is frivolous.

On September 6, 1982, Mangone was paroled from two four to twenty year concurrent sentences as a result of his convictions for robbery in Allegheny County. He was arrested on January 30, 1984 on new criminal charges and released the same day on his own recognizance. Mangone failed to report the arrest to the parole supervision staff who received notice of the arrest on February 3, 1984 through the Allegheny County Bail Agency. On February 8, 1984, the date Mangone failed to appear for preliminary hearing, the Pennsylvania Board of Probation and Parole (Board) lodged a detainer warrant against Mangone and declared him delinquent effective that date.

On March 21, 1984, Mangone was arrested in Fayette County on additional criminal charges.*fn3 The Board lodged another warrant and detainer against Mangone the same day and scheduled a hearing for April 3, 1984. Mangone subsequently requested five continuances of the hearing, and on September 11, 1984, Mangone requested a further continuance of his hearing pending

[ 123 Pa. Commw. Page 37]

    disposition of the criminal charges which was granted. At the conclusion of this hearing, Mangone signed a waiver as to all timeliness issues. On December 6, 1984, he was convicted of burglary in the Allegheny County Common Pleas Court and sentenced on September 6, 1986 to a term of two and one-half to five years. Mangone subsequently entered a plea of nolo contendere to the Fayette County charge of unsworn falsification; the remaining charges were dismissed. Mangone once again requested a continuance of the full Board hearing pending disposition of the petition for review filed before this Court challenging the timeliness of the hearing. This Court held that the hearing was not held ...


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