Opinion
No. 1937 C.D. 2011
05-10-2012
Ryan J. Allamon, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Ryan J. Allamon (Petitioner) petitions for review of the September 27, 2011 determination of the Pennsylvania Board of Probation and Parole (Board), dismissing as untimely his administrative appeal from recommitment as a technical and convicted parole violator and recalculation of his maximum sentence date. Petitioner alleges that his appeal was untimely due to the ineffective assistance of counsel and, as a result, the Board's order should be reversed and he should be allowed to proceed nunc pro tunc.
Petitioner is an inmate currently incarcerated at the State Correctional Institution at Smithfield, Huntingdon County, Pennsylvania. The Board issued an order recorded July 26, 2011, and mailed August 1, 2011, which revoked Petitioner's parole and recommitted him as a technical parole violator to serve 12 months backtime and as a convicted parole violator to serve his unexpired term of two years, eleven months, thirty days concurrently, for a total of his unexpired term of two years, eleven months, thirty days. (R. Item 3, Notice of Board Decision.) By letter dated September 1, 2011, received by the Board September 6, 2011, Petitioner, through counsel, petitioned the Board for administrative relief, alleging errors in the calculation of the Board's order. (R. Item 5, Board Petition for Relief.) On September 27, 2011, the Board, by letter to Petitioner's counsel, dismissed the petition for administrative relief as untimely; to be timely, the petition must have been received by the Board on or before August 31, 2011, the last day of the statutory appeal period. (R. Item 5, Board Dismissal of Petition for Review.) An appeal to this Court followed.
The proper procedure to raise an ineffective assistance of counsel claim is to file a petition with the Board. Scott v. Pennsylvania Board of Probation and Parole, 739 A.2d 1142, 1145 (Pa. Cmwlth. 1999). An exception presents when a petitioner is prohibited from raising the issue below, so that it is only before this Court that petitioner is first able to challenge counsel's effectiveness. Vreen v. Pennsylvania Board of Probation and Parole, 515 A.2d 637, 639-640 (Pa. Cmwlth. 1986). We find that the unique facts of this case fall within this exception and that Petitioner's claim was raised when he was first able to do so, in his petition for review to this Court. (Petition for Review, ¶6(c).) --------
On November 4, 2011, the Board filed a motion to stay the filing of a certified record and to limit the issue for our review to whether the Board properly dismissed Petitioner's petition as untimely. The record shows that the Board served a copy of its Motion on Petitioner's counsel via first class mail November 4, 2011. Nevertheless, Petitioner did not file a response to the Board's motion. On November 22, 2011, this Court granted the Board's motion to limit.
Petitioner admits in his brief to this Court that the Board is prohibited from accepting petitions for administrative relief if they are not received within 30 days of the mailing date of the Board's determinations. (Pet. Brief at 10.) See 37 Pa. Code § 73.1(b)(1). However, Petitioner argues that the Board's dismissal should be reversed and Petitioner should be allowed to proceed nunc pro tunc, because Petitioner's untimely filing was due to ineffective assistance of counsel. (Pet. Brief at 10.) In support of this argument, Petitioner asserts facts that are outside the record. (Id. at 11.) The facts allege that Petitioner affirmatively sought the assistance of counsel from the Huntingdon County Public Defender in perfecting his appeal, but that counsel did not file the request for administrative relief until after the time allowed had expired, because she did not know about the request. (Pet'r. Brief at 11.)
This Court's scope of review is limited to a determination of whether the necessary finding of facts are supported by substantial evidence, whether an error of law was committed, and whether any constitutional rights of the parolee have been violated. Vreen v. Pennsylvania Board of Probation and Parole, 515 A.2d 637, 639 n.6 (Pa. Cmwlth. 1986). Furthermore, our review is limited to the record certified by the Pennsylvania Board of Probation and Parole. 2 Pa. C.S. § 704 ("The court shall hear the appeal without jury on the record certified by the Commonwealth agency.").
Under Pennsylvania law, it has long been clear that an indigent parolee facing revocation of parole is entitled to the effective assistance of counsel in perfecting an appeal to the Board and that the responsibility for providing competent and effective counsel lies with the county where the indigent parolee is confined. See LaCourt v. Pennsylvania Board of Probation and Parole, 488 A.2d 70, 75 (Pa. Cmwlth. 1985). In the case before us that county is Huntingdon and that responsibility is borne by the Huntingdon County Office of Public Defender. However, the assistance of counsel in making a petition for administrative relief to the Board is not automatic; instead, it is the responsibility of the parolee to affirmatively request the assistance of counsel. Snipes v. Pennsylvania Board of Probation and Parole, 527 A.2d 1080, 1081-1082 (Pa. Cmwlth. 1987).
The record certified by the Board does not speak to whether petitioner affirmatively sought the aid of counsel within the time provided to file an appeal with the Board. What the record does show is that Petitioner was represented by counsel as of September 1, 2011, making it clear that at some point in time during his appeal process, Petitioner affirmatively requested the assistance of counsel.
To demonstrate ineffective assistance of counsel, a parolee must satisfy a two-prong test: first, the parolee must show that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed under law and, second, the parolee must show that counsel's deficient performance prejudiced parolee's defense such that, but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. LaCourt, 488 A.2d at 75.
This test requires a fact-intensive inquiry to determine if the legal standard for ineffective assistance of counsel has been met. Such an inquiry is impossible when, as here, no hearing has been held to establish a record on the issue, and what record does exist has already been subject to an unopposed motion to limit. This Court was faced with a similarly deficient record in Larkin v. Pennsylvania Board of Probation and Parole, 555 A.2d 954, 956 (Pa. Cmwlth. 1989).
In Larkin, this Court analyzed a claim of ineffective assistance of counsel where the petitioner alleged he had requested the Public Defender's Office to perfect an appeal prior to the expiration of the 30-day appeal period and the Public Defender's Office had failed to do so, leading to the Board's denial of the petitioner's underlying claim on the grounds of untimeliness. 555 A.2d at 956. We stated that:
If in fact the Petitioner did request his attorney to file an appeal, the failure to do so may have constituted ineffective assistance of counsel. And if the untimeliness of Petitioner's appeal were the result of some third party's intervening negligence, then an appeal nunc pro tunc under these circumstances would be appropriate. A showing must be made that fraud, duress or coercion caused the delay and for appeal purposes, negligence on the part of administrative officials may be deemed to be the equivalent of fraud.Id. at 957 (internal citations omitted). Key to the analysis of the ineffective assistance of counsel claim in Larkin, was the date on which the petitioner contacted the Public Defender's Office. 555 A.2d at 956. If the petitioner affirmatively requested the assistance of counsel in sufficient advance of the end of the statutory appeals process, than the failure of the Public Defender Office to file a timely appeal would constitute a breakdown in administrative processes, making nunc pro tunc status appropriate. Larkin, 555 A.2d at 957. Because the record was insufficient to resolve the issue, this Court remanded the case to the Board to conduct an evidentiary hearing and determine if the failure to file a timely appeal was due to the ineffective assistance of counsel. Id. at 958.
As in Larkin, the record here is insufficient to determine whether Petitioner's ineffective assistance of counsel claim has merit. As a result, this Court must reverse the Board's order and remand Petitioner's case to the Board for an evidentiary hearing to determine whether the failure of Petitioner's attorney to file a timely appeal with the Board was due to the ineffective assistance of counsel. If after conducting an evidentiary hearing, the Board concludes that the assistance of counsel received by Petitioner was ineffective and that this ineffectiveness was due to the breakdown of administrative processes in the Huntingdon County Public Defender Office, than an appeal nunc pro tunc will lie, and the Board is then directed to hear the merits of Petitioner's administrative appeal.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 10th day of May, 2012, the order of the Pennsylvania Board of Probation and Parole mailed September 27, 2011, which dismissed Ryan J. Allamon's petition for administrative relief as untimely, is reversed and this case is remanded to the Board to conduct an evidentiary hearing on the issue of the effectiveness of Petitioner's counsel consistent with this opinion.
/s/_________
JAMES GARDNER COLINS, Senior Judge