Opinion
November 7, 1979.
Pennsylvania Board of Probation and Parole — Right to counsel — Technical parole violator — Hearing — Notice — Harmless error.
1. A parolee is entitled to have counsel present at a technical violation hearing, and due process rights are violated when the parolee was deprived of counsel as a result of a defect in the notice of hearing which specified no date for the hearing. [209]
2. A parolee or his counsel has no duty to make inquiry as to the date a parole violation hearing is scheduled when the required notice is defective in omitting the date. [210]
3. The denial of a parolee's right to counsel at a technical violation hearing through issuance of a defective notice of hearing constitutes harmless error when a subsequent hearing was held for which proper notice was given and at which counsel for the parolee was present and which resulted in a reaffirmation of the commitment of the parolee as a technical parole violator and commitment as a convicted parole violator. [210]
Submitted on briefs, September 26, 1979, to President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., MENCER, ROGERS, BLATT, DiSALLE, CRAIG and MacPHAIL.
Original jurisdiction, No. 189 Misc. Dkt. No. 2, in case of Artia McCloud v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole. Petition for review in the Commonwealth Court of Pennsylvania challenging commitment as technical parole violator. Motions for summary judgment filed. Held: Motion of petitioner denied. Motion of respondent granted.
Artia McCloud, petitioner, for himself.
Robert A. Greevy, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.
In this petition for review, we are asked by petitioner to set aside the action of the Pennsylvania Board of Probation and Parole (Board) recommitting petitioner as a technical parole violator or alternatively to order the Board to grant him a new hearing on the charges of technical parole violations.
On June 13, 1977, petitioner was released by the Board under parole supervision. The following June, petitioner was arrested on a variety of new criminal charges pursuant to which the Board issued a warrant charging petitioner with technical as well as criminal violations of his parole.
On October 18, 1978, following a timely preliminary hearing on the charges of technical violations, petitioner appeared before the Board for a violation hearing. Although represented by counsel at the earlier hearing, petitioner had no attorney with him at the violation hearing. Petitioner argues that his attorney was not present because the notice of hearing was defective in that no date for scheduling of the violation hearing was included. This defect, concludes petitioner, was a violation of the Board's own regulations and minimum due process entitling him to at least a new hearing.
See regulation found at 37 Pa. Code § 71.2(12)(ii).
Although we are in agreement with the basic legal argument advanced by petitioner, the factual posture of the instant petition obviates the prayed-for relief.
While the Board acknowledges the defect in the notice, it is argued that petitioner or his attorney should have contacted the Board to ascertain when the hearing was to be scheduled. We reject the Board's position; there is absolutely no sound basis on which such a duty of inquiry by the petitioner can be founded. Our Superior Court has recognized the importance of notice of the Board's proceedings on several occasions. See, eg., Commonwealth v. Spence, 252 Pa. Super. 341, 381 A.2d 949 (1977). A parolee's right to have counsel present at a technical violation hearing is firmly established, Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969), and the importance of full and adequate notice to the realization of that right can hardly be doubted.
The facts of this case thus far recounted would entitle petitioner to relief were it not for certain additional facts. From the certificate of the Board's chairman we learn that petitioner was found guilty and sentenced on the new criminal charges by Judge TREDINNICK of the Montgomery County Court of Common Pleas. Petitioner was then accorded a revocation hearing at which he was represented by counsel. The Board took action as recorded on March 21, 1979, reaffirming petitioner's commitment as a technical parole violator and recommitting him as a convicted parole violator. Petitioner has in essence already received the relief here sought making the Board's earlier error harmless.
Accordingly, we will enter the following
ORDER
AND NOW, November 7, 1979, the motion for summary judgment of Artia McCloud is hereby denied, and the cross-motion for summary judgment of the Pennsylvania Board of Probation and Parole is hereby granted.