Opinion
December 11, 1987.
Pennsylvania Board of Probation and Parole — Questions not properly raised — Modification of recommitment order — Waiver — Due process — Effective assistance of counsel — Burden of proof.
1. Questions not properly raised in proceedings before the Pennsylvania Board of Probation and Parole will not be considered on appeal from a decision of the Board. [575]
2. Failure to file an additional petition for administrative relief with the Pennsylvania Board of Probation and Parole when a recommitment order was modified after the initial petition was filed constitutes a waiver of a due process challenge to the action modifying the order. [575]
3. A parolee is entitled to effective assistance of counsel in a revocation proceeding. [575]
4. A parolee seeking relief due to a claimed ineffective assistance of counsel must prove that counsel committed errors so serious that he was not acting as counsel and that such errors were so serious that he was not acting as counsel and that such errors were so serious that a reasonable probability exists that, but for such errors, the outcome of the proceeding would have been different. [575]
5. In the absence of evidence that the failure of counsel to introduce certain evidence would have affected the outcome or that mitigating circumstances even existed that counsel could have introduced at a revocation proceeding, a claim of ineffective counsel made by a parolee must fail. [576]
Submitted on briefs August 4, 1987, to President Judge CRUMLISH JR., Judge DOYLE, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 285 C.D. 1987, from the Order of the Pennsylvania Board of Probation and Parole in the case of James A. Hughes, Parole No. 4999-J.
Parolee recommitted as technical and convicted parole violator. Parolee appealed to the Pennsylvania Board of Probation and Parole for administrative relief. Appeal denied. Parolee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John P. Liekar, Sr., for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
James A. Hughes (Petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief. We affirm.
This Court's scope of review is limited to determining whether constitutional rights were violated, errors of law were committed, or findings of fact were unsupported by substantial evidence. Seyler v. Pennsylvania Board of Probation and Parole, 97 Pa. Commw. 302, 509 A.2d 438 (1986).
On September 26, 1973, Petitioner was sentenced in Westmoreland County for robbery by assault to a term of 1-to-10 years, effective April 9, 1973. The maximum expiration date of Petitioner's sentence was April 9, 1983. Starting April 9, 1974, Petitioner was paroled, recommitted, and reparoled several times, the last being July 12, 1985. At this time, Petitioner's maximum expiration date was June 25, 1987.
On August 17, 1985, Petitioner was declared delinquent by the Board for moving from his approved residence without notifying his parole officer. Subsequently, he was arrested in Westmoreland County for driving under the influence of alcohol. Released on bond, he was again arrested on October 15, 1985 for driving under the influence, unsworn falsification to authorities, false reports to law enforcement officers, receiving stolen property, and conspiracy. On November 27, 1985, Petitioner was charged in Greene County with two counts of theft by unlawful taking, alleged to have occurred in September 1985.
Petitioner pleaded guilty on March 3, 1986 to the Greene County theft-by-unlawful-taking charges, and received concurrent prison terms of 2 1/2-to-5 years effective March 3, 1986. In Westmoreland County, on June 16, 1986 Petitioner pleaded guilty to unauthorized use of a motor vehicle, and was sentenced to 11 1/2-to-23 months, effective July 2, 1986. Additionally, on a guilty plea to driving under the influence, he was sentenced to 48 hours-to-23 1/2 months, and on a guilty plea to theft by deception he received a 6-to-12 month sentence, both effective July 2, 1986.
Consequently, a full Board hearing was held on September 18, 1986, at which Petitioner was present and represented by counsel. By notice dated October 21, 1986 and mailed to Petitioner on October 30, 1986, the Board recommitted Petitioner for 48 months total backtime as both a technical parole violator (TPV) and a convicted parole violator (CPV). As a TPV, Petitioner received 12 months for violating conditions number 2 (moving from approved residence without written permission of parole agent) and number 3 (failure to notify of arrests), and 18 months backtime for twice violating special condition number 6 (failure to complete outpatient therapy programs and consumption of alcohol). As a CPV, Petitioner was given 18 months backtime for the offenses of theft by unlawful taking, theft by deception, unauthorized use of a motor vehicle, driving without a license, "one-way roadway," and unauthorized use or transfer of a registration. Petitioner's maximum termination date of sentence was set at April 11, 1990.
Petitioner timely filed a request for administrative relief with the Board pursuant to 37 Pa. Code § 71.5(h). In the interim, Petitioner was notified by the Board, by a decision mailed December 22, 1986, that on December 17, 1986 the Board had modified his recommitment with regard to total time to be served as a TPV and CPV, resulting in an extension of his maximum termination date of sentence from April 11, 1990 to October 1, 1990. By decision dated and mailed January 14, 1987, the Board denied petitioner's request for administrative relief. Petitioner's timely petition for review to this Court followed.
Petitioner presents four issues on this appeal: (1) whether the Board erred in recommitting him after a parole revocation hearing at which no evidence as to his sentence status was introduced; (2) whether, in computing Petitioner's backtime, the Board erred in not crediting him for time served on parole in good standing; (3) whether the Board denied Petitioner due process by modifying his parole revocation to enhance his maximum termination date of sentence without affording him another hearing; and (4) whether Petitioner was denied effective assistance of counsel. Initially, we agree with the Board that Petitioner has waived review of the first two issues by failing to include these issues in his request for administrative relief to the Board. It is well-settled that failure to raise an issue before the Board results in waiver and precludes this Court from review. Prough v. Pennsylvania Board of Probation and Parole, 78 Pa. Commw. 606, 467 A.2d 1234 (1983). Likewise, we agree that Petitioner has waived his due process claim. Although the Board's recomputation date of sentence occurred after he filed his petition for administrative relief from the recommitment order, the correct course of action would have been for Petitioner to file a second petition for administrative relief raising his due process claim before the Board. As he failed to do so, the Board never received an opportunity to address the issue, and it must be regarded as waived. Prough. Accordingly, we will confine our review to Petitioner's ineffectiveness of counsel claim.
It is beyond dispute that a parolee in a revocation proceeding has a right to effective assistance of counsel. Vereen v. Pennsylvania Board of Probation and Parole, 101 Pa. Commw. 63, 515 A.2d 637 (1986); LaCourt v. Pennsylvania Board of Probation and Parole, 87 Pa. Commw. 384, 488 A.2d 70 (1985). In order to establish a right to relief due to ineffective counsel, a parolee has the burden of showing two things: (1) counsel made errors of such a serious nature that counsel was not operating as "counsel" as guaranteed by law; and (2) the errors were so serious that a reasonable probability exists that but for counsel's errors, the outcome of the proceeding would have been different. LaCourt; Vereen.
Here, Petitioner alleges that his counsel was ineffective at the parole revocation hearing in that counsel failed to introduce Petitioner's "sentence status with regard to backtime" into the record, resulting in an extension of his parole expiration date, and that counsel did not present any mitigating evidence or testimony on behalf of Petitioner.
These arguments are unpersuasive. Petitioner does not allege anything that would show that his counsel's failure to introduce Petitioner's sentence status with regard to his backtime would have affected the outcome of the revocation hearing. In other words, whatever the status of Petitioner's various reparoles, such information would only be relevant to his maximum termination date, which, if it was in error, should have been the subject of a separate request for administrative relief after it had been determined by the Board. As to the second contention, Petitioner has failed to allege that any mitigating circumstances existed or, if they existed, that his counsel should have been aware of them. Accordingly, petitioner's claim of ineffective assistance of counsel must fail.
Affirmed.
ORDER
NOW, December 11, 1987, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.