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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Andrew Outen, : Petitioner : : v. : : Pennsylvania Board of Probation and : Parole, : No. 1114 C.D. 2004 Respondent : Submitted: December 3, 2004 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JESS S. JIULIANTE, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE COLINS FILED: February 18, 2005 Before this Court is a petition to withdraw as counsel filed by James M. McClure, Esquire (Counsel), Assistant Public Defender for Huntingdon County. Counsel represents Andrew Outen (Petitioner), who has petitioned for review of the decision of the Pennsylvania Board of Probation and Parole (Board), which denied his request for administrative relief, challenging his recommitment as a technical parole violator. Counsel requests leave to withdraw on the basis that Petitioner's petition for review is frivolous and without merit. An attorney seeking to withdraw must comply with the requirements of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), by delineating in his no merit letter: (1) all issues that Petitioner wishes to raise for review; (2) the nature and extent of Counsel's review of those issues; and (3) Counsel's analysis of Petitioner's arguments in concluding that the latter's appeal is frivolous and/or without arguable merit. In considering Counsel's application for leave to withdraw, Counsel first must satisfy the requirements set forth in Turner, after which this Court must make an independent evaluation of the proceedings before the Board to determine whether Petitioner's appeal is wholly frivolous.1 A recounting of the facts follows. Petitioner was serving a sentence of nine years to twenty-three years when he was paroled in October, 2003 to the Joseph E. Coleman Center (Center) in Philadelphia for a minimum of three months. The conditions of his parole required, inter alia, participation in a community corrections program at the Center with out-patient alcohol/drug treatment and a successful discharge therefrom by the parole supervision staff. Petitioner failed to abide by the Center's rules on numerous occasions and when, on December 30, 2002, parole supervision staff went to the Center to take him into custody, he resisted arrest and punched the Director of Operations of the Center in the face. Petitioner was detained pending disposition of criminal charges filed as a result of this incident; the charges were dismissed on July 9, 2003. The Board lodged its warrant for violation of parole on July 16, 2003, and a preliminary hearing was scheduled for July 25, 2003. This hearing was continued at Petitioner's request, and subsequent hearings scheduled for August 13, 2003, August 25, 2003, September 15, 2003, October 15, 2003, and November 12, 2003 were also continued at the request of Petitioner or his attorney. The hearing was held on January 21, 2004. 1 A wholly frivolous appeal is one that is completely devoid of points that might arguably support an appeal. Congo v. Pennsylvania Board of Probation and Parole, 522 A.2d 676 (Pa. Cmwlth. 1987). 2 At the hearing, Petitioner, by his attorney, entered a plea of no contest to the violation of both parole Condition #5C (refrain from any assaultive behavior) and Condition #7 (special condition: removal or termination from the community correction center for any reason other than successful completion). Petitioner's attorney apprised the panel of his client's long-standing history of psychiatric illness and argued that the Center was not the proper place for treatment; he requested that Petitioner be reparoled directly to an alternate diagnostic and rehabilitation center also located in Philadelphia where psychiatrists on staff could deliver the treatment required. The hearing examiner advised Petitioner that five Board signatures would be required in order to re-parole him to the alternate rehabilitation center, and cautioned that although the two Board members present might agree that this course of action was warranted, he could not predict what the ultimate decision of the Board might be. Petitioner indicated that he understood. (Record, at p. 57). By decision mailed on March 11, 2004, the Board revoked Petitioner's parole and recommitted him as a technical parole violator to serve twenty-four months backtime. Petitioner requested administrative relief from the Board's decision, which was denied on May 6, 2004. Petitioner filed his petition for review,2 and Counsel filed the petition to withdraw. Applying the foregoing criteria to the present matter, we find that Counsel's submitted "no-merit" letter complies with the criteria set forth in Turner and adequately addresses the following issues raised by Petitioner: (1) the Board's 2 This Court's review of the Board's action is limited to determining whether the Board's adjudication is supported by substantial evidence, is in accordance with the law, and is observant of the petitioner's constitutional rights. Monroe v. Pennsylvania Board of Probation and Parole, 725 A.2d 223, 224 n.1 (Pa. Cmwlth.), petition for allowance of appeal denied, 560 Pa. 733, 745 A.2d 1226 (1999). 3 determination that Petitioner violated conditions #5C and #7 of his parole are not supported by substantial evidence; (2) the Board failed to conduct a timely violation hearing; (3) the backtime imposed by the Board was arbitrary and excessive and departed from the established presumptive range; (4) the Board erred in failing to provide Petitioner a reparole date as opposed to a review date; and (5) Petitioner was denied effective assistance of counsel. In considering the merits of Petitioner's issues, we first address Petitioner's argument that the Board's decision that Petitioner violated conditions #5C and #7 of his parole are not supported by substantial evidence. Substantial evidence has been defined as such evidence as a reasonable mind might accept as adequate to support a conclusion. Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984). This Court has long held that an admission or stipulation to a violation at the revocation hearing, standing alone, constitutes substantial evidence of the violation charged. Pitch v. Pennsylvania Board of Probation and Parole, 514 A.2d 638 (Pa. Cmwlth. 1986). Petitioner, by his counsel, clearly admitted to both violations. We also reject the Petitioner's argument that the Board failed to conduct a timely violation hearing. 37 Pa. Code §71.2 provides that a violation hearing must be conducted within 120 days of the preliminary hearing. The record indicates that all requests for continuances of scheduled hearings were made by either Petitioner or his attorney. This Court has made clear that periods of delay caused by continuances requested and granted to either the parolee or his counsel are excludable from determining whether the revocation hearing was timely. Pastuszek v. Pennsylvania Board of Probation and Parole, 544 A.2d 1051 (Pa. Cmwlth. 1988). Further, an offender who fails to lodge a timeliness objection at a revocation hearing waives that issue and may not complain about a violation of the 4 speedy hearing right on appeal. Commonwealth v. Collins, 492 Pa. 405, 424 A.2d 1254 (1981). Thus, Petitioner's argument is frivolous. Petitioner challenges the amount of backtime the Board imposed. 37 Pa. Code §75.4 provides for a presumptive range for violation of condition #5C for technical parole violators of six to eighteen months and a presumptive range for violation of condition #7 of three to eighteen months. The Board may aggregate the periods allowing for an imposition of between three and thirty-six months backtime for the charged offenses. The twenty-four month period of recommitment imposed is well within the presumptive range. This Court has held that it is within the Board's discretion to impose backtime within the presumptive range and that such decisions will not be overturned. Lotz v. Pennsylvania Board of Probation and Parole, 548 A.2d 1295 (Pa. Cmwlth. 1988), affirmed, 525 Pa. 567, 583 A.2d 427 (1990). The Board did not err in failing to set a date certain for reparole; we have held that a parolee has no automatic right to reparole following the service of his backtime and the Board is not required to set a date certain for reparole. Krantz v. Pennsylvania Board of Probation and Parole, 483 A. 2d 1044 (Pa. Cmwlth. 1984); Bowman v. Pennsylvania Board of Probation and Parole, 709 A.2d 945 (Pa. Cmwlth.), petition for allowance of appeal denied, 556 Pa. 696, 727 A.2d 1123 (1998). Finally, Petitioner alleges that his revocation hearing counsel was ineffective, and coerced him into admitting to the two violations, with a promise that he would be reparoled to an alternate treatment center. The test for determining the effectiveness of counsel's performance, known as the Strickland3 test, consists of two parts and requires the offender to show that: (1) counsel made 3 Strickland v. Washington, 466 U.S. 668 (1984) 5 errors so serious that counsel was not acting as "counsel" guaranteed by law; and (2) that counsel's deficient performance was so serious that there is a reasonable probability that, but for counsel's errors, the result of the revocation proceeding would have been different. LaCourt v. Pennsylvania Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985). Further, Petitioner bears the burden of showing counsel's ineffectiveness. Commonwealth v. McNeil, 487 A.2d 802 (Pa. Cmwlth. 1985). As stated above, Petitioner was cautioned by the hearing examiner that he could not predict how three other Board members would decide this matter and he acknowledged that he understood. Petitioner has provided no evidence that his counsel's performance was deficient, and nothing in the record suggests that the outcome of the proceeding could have been different had the admissions not been made. We concur with Counsel that Petitioner's appeal is wholly frivolous. Accordingly, because we conclude that no basis for relief exists, we affirm the Board's denial of administrative relief, and grant Counsel leave to withdraw. ________________________________________ JAMES GARDNER COLINS, President Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Andrew Outen, : Petitioner : : v. : : Pennsylvania Board of Probation : and Parole, : Respondent : No. 1114 C.D. 2004 O R D E R AND NOW, this 18th day of February 2005, the petition filed by James M. McClure for leave to withdraw as counsel for Andrew Outen (Petitioner) is granted. The order of the Pennsylvania Board of Probation and Parole denying Petitioner's request for administrative relief is AFFIRMED. ________________________________________ JAMES GARDNER COLINS, President Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Andrew Outen, : Petitioner : : v. : No. 1114 C.D. 2004 : Submitted: December 3, 2004 Pennsylvania Board of Probation and : Parole, : Respondent : BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JESS S. JIULIANTE, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE SMITH-RIBNER FILED: February 18, 2005 I dissent from the decision in this case because the majority has failed to discuss the extent of appointed counsel's review of the issues raised in this appeal and/or the analysis conducted by appointed counsel and the basis for his conclusion that Petitioner's appeal is frivolous. The majority states that appointed counsel has complied with the criteria set forth in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). I note that one of the issues raised by Petitioner is whether he was denied effective assistance of counsel and that appointed counsel in his no-merit letter simply states the applicable test in this regard and notes that Petitioner cannot meet the test. Appointed counsel's analysis on this issue is inadequate and does not meet the Turner standards because appointed counsel does not explain why the hearing counsel was not ineffective when he permitted a client with a long-standing history of psychiatric illness to enter a plea in the hopes of being re-paroled to a facility that would provide psychiatric treatment. 8 In Hont v. Pennsylvania Board of Probation and Parole, 680 A.2d 47 (Pa. Cmwlth. 1995), an en banc panel of this Court reviewed the procedures to be followed when an appointed counsel petitions to withdraw his or her appearance because an appeal is believed to be frivolous. Citing the standards enunciated in Turner, the Court noted that appointed counsel's "no-merit" letter (1) must detail the nature and extent of appointed counsel's review of each issue that the petitioner wishes to raise and (2) must include an explanation of appointed counsel's reasons for determining that the issues raised lack merit. When confronted with a petition to withdraw, the Court must conduct an independent assessment of the petition to withdraw to decide if it satisfies Turner and must agree with appointed counsel's assessment of the issues before the Court may grant the petition. In its independent assessment, the Court should at a minimum explain in its opinion whether appointed counsel has considered each issue raised and provided a substantive reason for concluding that the claims presented lack merit. Hont (citing Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992)). Because the majority has failed even to discuss appointed counsel's reasons for concluding that all of Petitioner's claims lack merit let alone to mention whether appointed counsel provided substantive reasons for his conclusions, I cannot join in the majority's decision. In addition, because appointed counsel in fact has failed to provide substantive reasons for concluding that the ineffective assistance of counsel claim lacks merit, I would deny the petition to withdraw. DORIS A. SMITH-RIBNER, Judge 9
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