ROMINGER
LEGAL
Pennsylvania Court Cases and Opinions -
PA Legal
Research
NOT FINDING
WHAT YOU NEED? -CLICK HERE
|
ROMINGER
LEGAL
|
||||||||||
|
Pennsylvania Court Cases and Opinions -
PA Legal
Research
|
||||||||||
| Need Legal Help? | ||||||||||
|
NOT FINDING
WHAT YOU NEED? -CLICK HERE
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE |
|
|
Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Keith A. DeWitt, : Petitioner : : v. : No. 1073 C.D. 2004 : Submitted: December 3, 2004 Pennsylvania Board of Probation and : Parole, : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: February 24, 2005 This case is before us on counsel's petition to withdraw his representation of Keith DeWitt (Petitioner), whose request for administrative relief was denied by the Pennsylvania Board of Probation and Parole (Board). We affirm the decision of the Board and grant counsel's request to withdraw. Petitioner was sentenced to a term of one and one-half to three years incarceration. Petitioner was paroled on September 4, 2001 with a parole maximum date of March 1, 2003. On May 9, 2002 the Board issued an order recommitting Petitioner as technical parole violator to serve four months. On October 22, 2002 Petitioner was reparoled. Between February 20 and February 27, 2003 Petitioner made several calls to his ex-girlfriend. The ex-girlfriend complained to the police that Petitioner's calls were harassing her. On March 1, 2003, Petitioner's parole expired. On March 7, 2003, the Owinsburg police department charged Petitioner with harassment by communication in connection with the February phone calls to his ex-girlfriend. In an order recorded June 17, 2003 the Board declared Petitioner delinquent for control purposes effective February 20, 2003. On October 29, 2003 Petitioner entered pleas of guilt to three counts of harassment by communication and was sentenced to six months probation. On November 6, 2003, the Board issued a warrant to commit and detain Petitioner. Petitioner waived his right to a panel hearing and a revocation hearing was held on December 18, 2003. In a decision recorded March 31, 2004, the Board recommitted Petitioner to his unexpired term of ten months and twenty days. A counseled and uncounseled petition for administrative relief was sent to the Board. Both petitions were denied by the Board on May 14, 2004. This appeal followed.1 On appeal, the issues before this court include: (1) whether the Board lacked jurisdiction over Petitioner to revoke his parole, (2) whether Petitioner was denied allocution and (3) whether the Board erred in determining that Petitioner lost credit for time spent on parole due to his recommitment as a convicted parole violator. As to counsel's petition to withdraw, Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985), requires counsel to (1) notify the petitioner of his request to withdraw, (2) furnish the petitioner with a 1 Our review is limited to determining whether necessary findings are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violator. Williams v. Pennsylvania Board of Probation and Parole, 654 A.2d 235 (Pa. Cmwlth. 1995). 2 brief referring anything in the record that might arguably support the appeal and (3) advise petitioner of the right to retain counsel or personally raise any arguments which the petitioner considers worthy of consideration.2 In this case, counsel for Petitioner advised Petitioner of his request to withdraw. Counsel also furnished him a copy of the brief filed with this court. The brief lists each issue raised in Petitioner's petition for review and provides legal citation in evaluating and addressing each issue. Specifically, as to whether the Board had jurisdiction over Petitioner, counsel in his brief states that the issue is waived inasmuch as it was not raised at the revocation hearing. Even if the issue was not raised, counsel states that in accordance with the law, parole may be revoked after the expiration of the parole for conduct which occurred during the period of parole. As to whether the Board denied Petitioner allocution, counsel references the record where Petitioner was given an opportunity to put anything he wanted on the record. Finally, as to whether the Board properly credited Petitioner with time, counsel states that the issue was not raised in Petitioner's counseled petition for administrative relief or in the subsequent petition for review filed with this court. Even if the issue was not waived counsel, although not agreeing with this court's view on the matter, acknowledges that Dorsey v. Pennsylvania Board of Probation and Parole, 854 A.2d 994 (Pa. Cmwlth. 2004) provides authority for the proposition that a parolee loses credit for all time spent on parole if the parolee is subsequently recommitted as a convicted parole violator. Counsel has met the technical requirements set forth in Craig and, as such, we will now make a full evaluation of the proceedings before the Board and 2 Craig is based on Anders v. California, 368 U.S. 738 (1967). 3 the merits of Petitioner's case in order to determine whether the appeal is wholly frivolous. Id. An appeal is wholly frivolous only when it is lacking in points that might arguably support an appeal. The first issue we will address is whether the Board lacked jurisdiction over Petitioner. We initially note, however, that this issue was not raised at the hearing and issues not then raised are waived. Nicastro v. Pennsylvania Board of Probation and Parole, 455 A.2d 295 (Pa. Cmwlth. 1983). Even if the issue had not been waived, this court has previously stated that parole may be revoked after the expiration of the parole period for conduct which occurred during parole. Williams. As to whether Petitioner was denied an opportunity to speak at his hearing, the certified record reveals that the hearing examiner offered him the opportunity to put anything he wanted to on the record. (C.R. at p. 37.) Petitioner, in fact, testified as to his job situation and his daughter. (C.R. at p. 37-39.) As such, there is no merit to Petitioner's contention that he was not afforded an opportunity to speak at his hearing. Finally, Petitioner argues that he is entitled to credit for time spent at liberty while on parole. This court stated in Houser v. Pennsylvania Board of Probation and Parole, 682 A.2d 1365 (Pa. Cmwlth. 1996), petition for allowance of appeal denied, 547 Pa. 759, 692 A.2d 568 (1997), and most recently reiterated in Dorsey v. Pennsylvania Board of Probation and Parole, 854 A.2d 994 (Pa. Cmwlth. 2004) that parolees do not receive credit for time served while at liberty on parole in good standing prior to technical parole violations when recommitted as a convicted parole violator. 4 Upon consideration of Petitioner's arguments, we conclude that they lack points which would arguably support an appeal. The Board had jurisdiction over Petitioner, Petitioner had an opportunity to speak at the Board hearing and the Board properly determined that as a convicted parole violator, Petitioner forfeited credit for the time spent on parole. Accordingly, the decision of the Board is affirmed. In addition, because counsel has satisfied the requirements in Craig, we grant counsel leave to withdraw. JIM FLAHERTY, Senior Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Keith A. DeWitt, : Petitioner : : v. : No. 1073 C.D. 2004 : Pennsylvania Board of Probation and : Parole, : Respondent : O R D E R Now, February 24, 2005, the decision of the Board of Probation and Parole in the above-captioned matter is affirmed. In addition, we grant counsel's motion to withdraw as counsel. JIM FLAHERTY, Senior Judge
|
|
|
NOW - CASE
LAW - All 50 States - Federal Courts - Try
it for FREE
We
now have full text legal news
drawn from all the major sources!!
Pennsylvania Lawyer Help Board
Find An Attorney
TERMS
OF USE - DISCLAIMER - LINKING POLICIES
Created and Developed by
Rominger Legal
Copyright 1997 - 2010.
A Division of
ROMINGER, INC.
