Opinion
No. 2444 C.D. 2010
06-04-2012
Mark Edward Donahue, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Mark Edward Donahue (Donahue) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board), which denied his request for administrative relief. Donahue's counsel, Richard C. Shiptoski, Esq. (Counsel), however, filed a petition for leave to withdraw as counsel. Counsel asserts, as expressed in his Anders brief, that the issues Donahue raises in this petition for review are without merit. We now grant Counsel's petition for leave to withdraw and affirm the Board's order.
We summarize the pertinent facts and procedural history below. In 1997, Donahue was convicted of robbery and terroristic threats and sentenced to serve consecutive terms of incarceration for a combined sentence of seven (7) years six (6) months to fifteen (15) years. (Certified Record (C.R.) at 4.) Following an intervening recommitment, the Board again granted parole to Donahue and released him on May 12, 2008.
The certified record reveals that Donahue's history of convictions extends to periods before this particular set of convictions, but we begin with these convictions as it was Donahue's conduct while on parole from these convictions that gave rise to the pertinent actions of the Board.
On May 12, 2009, the Board issued a warrant to commit and detain Donahue, apparently because he had been arrested on new drug-related criminal charges on May 11, 2009. On June 5, 2009, the Board issued a Notice of Charges and Hearing referencing the date of Donahue's arrest in May 2009. On November 18, 2009, Donahue pleaded guilty to a charge of possession of a controlled substance (cocaine) with the intent to deliver, (C.R. at 84), and was sentenced to a term of incarceration of three (3) years, three (3) months to six (6) years, six (6) months and two (2) years of "special probation," (C.R. at 55, 89).
The Board received official verification of Donahue's new convictions on November 18, 2009. The Board held a revocation hearing on January 19, 2010. (C.R. at 58-77.) The Board mailed a Notice of Board Decision on February 17, 2010, recommitting Donahue as a convicted parole violator and imposing eighteen (18) months backtime. (C.R. at 85.) The Board calculated Donahue's new maximum date to be April 15, 2015. (C.R. at 97.) The Board issued a second Notice of Board Decision, referencing the Board's February 2010 recommitment decision and setting forth the new date on which Donahue would be eligible for reparole. (C.R. at 99.)
Donahue filed a request for administrative relief, which the Board received on April 27, 2010. (C.R. at 100.) In his request, Donahue raised a number of objections to the Board's actions, beginning with an apparent challenge to the legitimacy of the detainer the Board issued on May 12, 2009. (Id.) Donahue also contended that the June 2009 Notice of Hearing and Charges did not identify a revocation hearing date in violation of 37 Pa. Code § 71.4(2)(i), included an erroneous indictment number, and was mailed five months before Donahue was convicted on the new criminal charges. Donahue also alleged that the Board's January 2010 revocation hearing was more than 120 days after the Board sent the June 2009 Notice of Hearing, which he claimed violated 37 Pa. Code § 71.4(1).
The Board denied Donahue's request for administrative relief, concluding that his request was untimely, and Donahue filed a petition for review with this Court. Upon the application of the Board for a remand, this Court issued a per curiam order dated August 10, 2010, directing the Board to address the merits of Donahue's request for administrative relief. The Board mailed an order on October 13, 2010, in which it identified three issues Donahue raised in his request for administrative relief: (1) whether the Board erred in failing to notify Donahue of its decision to detain him in May 2009; (2) whether the Board failed to give him proper notice of the charges against him that the Board would consider in its revocation hearing; and (3) whether the Board's revocation hearing was timely.
The remand order was docketed with this Court at Donahue v. Pennsylvania Bd. of Prob. and Parole, 1480 C.D. 2010.
With regard to the first issue, the Board cited this Court's decision in Whittington v. Pennsylvania Board of Probation and Parole, 404 A.2d 782 (Pa. Cwmlth. 1979), where we commented that "the fact remains that the failure to hold a timely detention hearing in the absence of a timely objection in no way affects the validity of a subsequent revocation hearing." Whittington, 404 A.2d at 783. As to the second issue, the Board relied upon Donahue's comments during the course of the revocation hearing, which the Board viewed as resulting in waiver, and concluded that the Board's process did not violate its notice requirements. Finally, the Board concluded that its revocation hearing was timely under 37 Pa. Code § 71.4(1)(ii), because the Board held the hearing within 120 days of Donahue's decision to waive his right to a panel hearing.
Donahue then filed the present petition for review, seeking to challenge the Board's order. The only question Donahue raises in this petition for review is whether the Board's actions violated the regulatory requirements relating to pre-hearing notice of the exact date of the Board's revocation hearing and the charges against him.
We begin by addressing Counsel's request to withdraw from his representation of Donahue. When no constitutional right to counsel is involved in a probation and parole case, an attorney seeking to withdraw from representing a prisoner may file a no-merit letter, as compared to an Anders brief. In Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this Court held that a constitutional right to counsel in a parole and probation matter arises only when the prisoner's case includes:
In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court held that, in order for a criminal defendant's counsel to withdraw from representing his client in an appeal, the counsel must assert that the case is completely frivolous, as compared to presenting an absence of merit. An appeal is completely or "wholly" frivolous when there are no factual or legal justifications that support the appeal. Craig v. Pennsylvania Bd. of Prob. and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). However, in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), our Supreme Court held that in matters that are collateral to an underlying criminal proceeding, such as parole matters, a counsel seeking to withdraw from his representation of a client may file a "no-merit" letter that includes information describing the extent and nature of the counsel's review, listing the issues the client wants to raise, and informing the court of the reasons why counsel believes the issues have no merit.
[a] colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.Hughes, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778 (1973)). The record in this matter contains no suggestion by Donahue that he did not commit the crimes for which he received a new criminal conviction, nor does Donahue suggest any reasons constituting justification or mitigation for his new criminal conviction. Thus, Donahue only has a statutory right to counsel under Section 6(a) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10). Therefore, this case is one in which a no-merit letter would have sufficed Counsel's responsibilities in seeking to withdraw his representation of Donahue.
When an attorney files an Anders brief "when a no-merit letter would suffice, the Anders brief must at least contain the same information that is required to be included in a no-merit letter." Seilhamer v. Pennsylvania Bd. of Prob. and Parole, 996 A.2d 40, 42-43 (Pa. Cmwlth. 2010). In order to satisfy the procedural requirements associated with no-merit letters, Counsel must: (1) notify the parolee that he has submitted to the Court a request to withdraw; (2) provide the parolee with a copy of counsel's no-merit letter; and (3) advise the parolee that he has the right to obtain new counsel and to submit to the Court a brief of his own raising any arguments that he may believe are meritorious. Reavis v. Pennsylvania Bd. of Prob. and Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006). In seeking to withdraw, an attorney must include the following descriptive information in the no-merit letter: (1) the nature and extent of counsel's review of the case; (2) the issues the parolee wants to raise; and (3) the analysis counsel used in reaching his conclusion that the issues are meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009).
Counsel served Donahue with his petition for leave to withdraw and his Anders brief. In a letter addressed to Donahue, Counsel advised Donahue of his right to retain counsel and to file a brief on his own behalf. Thus, Counsel has complied with these requirements.
Counsel's Anders brief includes a thorough recitation of the pertinent factual and procedural history in this case, identifies the issue raised in the petition for review, discusses the key factual elements that are pertinent to the issue, and applies the holding of relevant decisions of this Court to the facts. Thus, we conclude that Counsel's Anders brief demonstrates adequate compliance with the requirements for a no-merit letter, and we may proceed to consider whether Counsel is correct in asserting that Donahue's appeal has no merit. As indicated above, the sole issue Donahue raises in his petition for review is whether the Board erred and violated its own regulations by failing to provide Donahue with pre-hearing notice of the exact date of the revocation hearing and the charges against him.
Counsel identifies the issue in this matter as whether the Board erred or violated its own regulations regarding a parole violator's right to notice of hearing and charges. In the discussion section of his brief, Counsel discusses the colloquy that occurred during the hearing, which suggested that Donahue waived the notice issues. Counsel then cited a decision of this Court that rejected a parolee's claim of inadequate notice based upon the conclusion that the parolee waived an inadequate notice claim during the course of the revocation hearing. --------
The Board's regulation relating to the notice requirements for revocation hearings provides:
§ 71.4 Conviction for a new criminal offense
The following procedures shall be followed before a parolee is recommitted as a convicted violator:
(1) A revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contender . . .
(2) Prior to the revocation hearing, the parolee will be notified of the following:
(Emphasis added.)(i) The right to a revocation hearing, the right to notice of the exact date and the right at the revocation hearing to be heard by a panel.
This provision clearly requires the Board to provide a parolee with pre-revocation hearing notice of the exact date upon which the Board will be conducting a revocation hearing. Pre-hearing notice may be essential in order to enable a parolee facing revocation of parole the opportunity to prepare to respond to the charges that triggered the Board's action. See Champion v. Pennsylvania Bd. of Prob. and Parole, 399 A.2d 447 (Pa. Cmwlth. 1979) (holding that failure of Board to provide notice that revocation hearing would involve parolee's new criminal conviction in addition to technical violations violated Board regulations and minimum due process requirements as described in Morrissey v. Brewer, 408 U.S. 471 (1972)).
The Board in this case, however, concluded that, during the course of the revocation hearing, Donahue waived any objection to the Board's failure to comply with the requirement, and, therefore, Donahue was precluded from raising this claim in his request for administrative review. In Hill v. Pennsylvania Board of Probation and Parole, 492 A.2d 80 (Pa. Cmwlth. 1985), appeal denied, 514 Pa. 650, 524 A.2d 496 (1987), a parolee, during the course of his revocation hearing, elected to waive his right to counsel rather than accept an offer for a continuance of the hearing. In his appeal to this Court, the parolee asserted that the Board improperly denied him his right to counsel and violated his due process rights by allegedly failing to provide him with sufficient time to prepare his defense. Hill, 492 A.2d at 82. We rejected both of these claims. With regard to the waiver of counsel, we concluded that the colloquy regarding the parolee's right to counsel demonstrated that the parolee had effectuated a valid waiver of his right to counsel.
As to the parolee's due process claim, this Court noted:
There can be no question that one of the minimum due process requirements which the Board's parole revocation hearings must satisfy is that the parolee must be given prior written notice of the hearing and of the charges being brought by the Board. Here, however, while the Board only afforded [the parolee] two days notice, the hearing examiner offered him a continuance in order to afford more time in which to prepare his defense and to arrange for the production of witnesses. As he did when the examiner offered him a continuance to procure counsel, [the parolee] declined the continuance stating only that he wanted to put the fact he had only two days notice of the hearing on the record to serve as a basis for an eventual appeal. In our view, when Hill refused the examiner's offer of a continuance of his Revocation Hearing, he effectively waived his right to contest the limited notice time. Accordingly, we must reject [the parolee]'s claim of prejudice due to lack of sufficient advance notice of his parole Revocation Hearing.Id. at 84 (internal citations omitted).
During the course of the revocation hearing in this case, the hearing officer engaged in the following colloquy with Donahue:
Q: Did you notice or know what the information is we're dealing with today?
A: Yeah, I didn't—I don't actually have a notice, but I know—I understand the situation.
Q: Do you want an opportunity to look at this again?
Parole Agent: Take a look at that.(C.R. at 69-71.) Thereafter, Donahue's parole agent submitted into the record the sentencing sheet generated by the Lackawanna Court of Common Pleas in which Donahue pleaded guilty to the new criminal charge. (C.R. at 72.) Donahue stated to the hearing officer that he had an opportunity to review the sentencing sheet. (C.R. at 73.) The hearing examiner then asked Donahue to testify regarding any potential mitigating factors that he would like the Board to consider.
Q: This is a notice of today's hearing. The notice is dated 2009. Was there a prior hearing scheduled in this that was not held, or was this--? I don't know that it's dated that way.
Parole Agent: No.
Q: You notice that the date of the report up there, that precedes even the other information.
Parole Agent: Yeah, that was the arrest report date.
Q: Okay. That was back when he was charged?
Parole Agent: Yeah. We had to—we had to amend this, this notice of charges.
Q: Okay. So the date—the actual date signed of this notice is January 12, 2010. So it was prepared more recently?
Parole Agent: It was amended because of the billing indictment number that was—it was changed to match, so we had to redo it.
Q: Okay. Well, at any rate, Mr. Donahue, do you feel you're ready to go ahead having looked at that piece of information about the notice for today's hearing?
A: Yeah
Thus, during the course of the hearing, the hearing examiner, who recognized deficiencies in the Board's notice to Donahue regarding the date of the revocation hearing and the charges upon the potential revocation would be based, asked Donahue if he knew what the charges were and if he was prepared to proceed with the hearing. Donahue indicated that he understood the charges and that, despite the failure of notice, he would proceed with the hearing. The facts in this case, therefore, are somewhat distinguishable from the facts in Hill, because the parolee in that case had two days' notice of the hearing and the charges. Moreover, while the hearing examiner in Hill asked the parolee if he wanted a continuance of the hearing, in this case, the hearing officer asked Donahue if he was ready to proceed despite the apparent deficiencies of the Board's notice.
Despite this distinction, we believe Counsel's assessment of the merits is correct. Although the hearing examiner in this case did not specifically ask Donahue if he wanted a continuance of the hearing, he did ask Donahue if he was familiar with the charges that were the subject of the revocation hearing—his new criminal conviction—and, when the hearing examiner asked Donahue if he was prepared to proceed despite the inadequacy of the notice, Donahue agreed to proceed. We note further that, in his request for administrative relief, Donahue points to no information that he would have sought to submit during the hearing if he had been given timely notice of the date of the hearing. Based upon the hearing examiner's implicit offer to allow Donahue additional time and the fact that, in his request for administrative relief, Donahue alleged no specific evidence that he could offer in response to the charges, we conclude that Donahue waived the adequate-notice issue during the course of the revocation hearing.
Consequently, we agree with Counsel's assessment that there is no merit to Donahue's appeal. Accordingly, we will grant Counsel's petition for leave to withdraw and affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 4th day of June, 2012, the petition for leave to withdraw as counsel filed by Richard C. Shiptoski, Esq., is GRANTED, and the order of the Board is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge