Murray v. Jacobs

• Decision Date: 17 July 1986
• Citation: 512 A.2d 785,99 Pa.Cmwlth. 39
• Parties: Wendell MURRAY, Petitioner, v. Fred W. JACOBS, et al., Respondents.
• Court: Pennsylvania Commonwealth Court

Page 785

512 A.2d 785

99 Pa.Cmwlth. 39

Wendell MURRAY, Petitioner, v. Fred W. JACOBS, et al., Respondents.

Commonwealth Court of Pennsylvania.

Argued Feb. 3, 1986.

Decided July 17, 1986.

Frederick I. Huganir, Office of Public Defender of Cumberland County, Carlisle, for petitioner.

Robert A. Greevy, Harrisburg, for respondents.

Before CRAIG and COLINS, JJ., and BARBIERI, Senior Judge.

COLINS, Judge.

Wendell Murray (petitioner) seeks review of an order of the Pennsylvania Board of Probation and Parole (Board) which recommitted him to prison for twelve (12) months backtime. Petitioner alleges that he was denied his right to counsel and his right to a hearing within a reasonable time; therefore, he posits, the Board's order should be reversed. The issue before this Court is whether either or both of these rights were improperly denied petitioner and, if so, what the appropriate remedy should be.

The record presents the following factual scenario. Petitioner was originally convicted for the offense of robbery, violation of the Uniform Firearms Act, and delivery of drugs, for which he was sentenced to serve seven and one-half (7 1/2) to fifteen (15) years, with minimum and maximum expiration dates of April 21, 1984, and October 21, 1991, respectively. Petitioner was released on parole effective April 21, 1984. Unfortunately, he was unable to return to society without incident, and he was arrested on November 10, 1984, on the charges of retail theft and resisting arrest. These charges emanated from an incident involving petitioner's shoplifting a single package of cigarettes. Petitioner was held in the Cumberland County Prison, and he did not post bond relative to the new charges.

On April 30, 1985, petitioner appeared before Judge Hoffer of the Court of Common Pleas of Cumberland County and entered a plea of guilty to retail theft. The charge of resisting arrest was withdrawn by the District Attorney at this time. He was sentenced to a term of five and one-half (5 1/2) to twenty (20) months running from the date of incarceration (November 10, 1984); having served this sentence, he was granted immediate parole. The order of the trial court specifically stated "[i]t appearing that the defendant has served this sentence, we place him on parole to the state detainer as soon as the officials can pick him up." (emphasis added).

Petitioner was transferred to a State Correctional Institution on May 7, 1985. A hearing was scheduled for June 17, 1985; however, the hearing was continued at the Board's request. It was rescheduled and held on August 26, 1985, resulting in the Board's order to recommit petitioner. ¹

Petitioner first argues that he was denied his right to counsel at the August 26, 1985 hearing. The right to counsel is a statutory right. Coades v. Pennsylvania Board of Probation and Parole, 84 Pa.Commonwealth Ct. 484, 496, 480 A.2d 1298, 1305 (1984). It is well-settled that under Pennsylvania law a parolee is entitled to assistance of counsel at the Board's revocation hearings and to free counsel if indigent. Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973); Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969). Of course, petitioner may waive his right to counsel, provided that such waiver is sufficient to satisfy a test of fundamental fairness under Pennsylvania law. Coades, 84 Pa.Commonwealth Ct. at 499, 480 A.2d at 1305. The Board's regulations require that a parolee be informed of his right to counsel at two stages of revocation proceedings. Prior to a hearing, he must be informed of his right to counsel, his right to free counsel if indigent, and that he will not be penalized for requesting counsel. 37 Pa.Code §§ 71.4(3)(ii)-(iii). At the hearing, the Board's regulations provide:

If a parolee appears without counsel at such hearing, it shall first be determined that he understands his right to counsel, his right to free counsel if he is unable to afford counsel, and that he shall not be penalized for requesting counsel. If the Examiner is satisfied that the refusal of counsel by the parolee is knowingly, intelligently, and freely made, he shall then accept and make a part of the record a written waiver to that effect.

37 Pa.Code § 71.4(5)(iv).

While the record does contain a signed waiver of representation of counsel, dated May 7, 1985, on a form this Court has previously approved, Coades, it is equally clear that this waiver was revoked. Counsel for petitioner appeared for the hearing of June 17, 1985, which was continued indefinitely. Counsel was also given notice on August 23, 1985, of the August 26, 1985 hearing. More telling is the following dialogue from the revocation hearing of August 26, 1985:

Mr. Moul: On May 7, 1985, you signed a waiver of a representation by counsel.

Mr. Murray: May 7th?

Mr. Moul: May 7th. Uh, hm.

Mr. Murray: No. No. No. No. I never signed that on May 7th. I never signed no papers to waive no counselor.

Mr. Moul: You never signed the waiver?

Mr. Murray: No. The only waiver I ever signed was in the county in '84.

Mr. Moul: Well, Mr. Murray, as I indicated, the, we are taping this okay? but, now as indicated here, and I have a copy of it indicates that you waived attorney representation.

Mr. Murray: Well, I want an attorney.

The Board's regulations provide that if a parolee wishes to exercise his right to counsel, then the examiner shall terminate the proceeding, and promptly reschedule such, presumably to allow for the appearance of counsel. 34 Pa.Code § 71.4(5)(iv). In this case, however, the examiner proceeded throughout some twenty-five pages of the record, in an attempt to persuade the petitioner to waive his right to counsel. In fact, the record begins with the following exchange:

Mr. Murray: Are you saying I can't have an attorney?

Mr. Moul: No, I'm not saying that Mr. Murray. Let me explain to you again. What we were here scheduled for today was a revocation hearing. ²

Later, the following colloquy took place:

Mr. Moul: Right, I understand that, But the Public Defender's office notified the Board that they would be unable to come today.

Mr. Murray: So what are you saying? I got to have a hearing without a Public ... without an attorney, is that what you're saying?

Mr. Moul: No, I'm not saying that. You have the right to have attorney representation as I indicated. If you want attorney representation, you have that right.... If you want the hearing today, you would have to reaffirm your waiver that uh, attorney representation. If you want an attorney, it would be necessary for you to request a continuance of the hearing until at such time that an attorney can be available.

....

Mr. Murray: Why are you people putting me through all this trouble? I mean why ... you wait to the last minute to give me a hearing and now you tell me I can't have an attorney. I mean, why I mean, you know, because I have pre-aides [sic] syndrome?

In the face of the pressure to either waive his right to counsel or continue to remain imprisoned until some unarticulated period when the Board could reschedule his hearing, petitioner chose to have the hearing. The record indicates petitioner was particularly concerned with continued incarceration while waiting for a hearing because he had pre-aids syndrome, and the treatment facilities at the correctional institution where he was housed were inadequate to treat his condition. A further delay, after already waiting for over three months for a hearing, could have been detrimental to his health. The hearing examiner could not set a date for a future hearing, and petitioner did not know how much longer he could be incarcerated without a hearing. Such consideration forced petitioner to waive counsel. The totality of circumstances in the instant case indicate that petitioner's waiver of counsel was not freely made and is, therefore, ineffective. See Coades (waiver of counsel must be intelligent and voluntary to be considered effective).

Since our determination that petitioner's waiver was defective is based in part on the manner in which this hearing was scheduled, we must examine the unusual circumstances surrounding the scheduling of the hearing.

Preliminarily, we note that the Board must provide a parolee a revocation hearing within a reasonable time. Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972). In United States ex rel. Burgess v. Lindsey, 395 F.Supp. 404 (E.D.Pa.1975), Judge Higginbottom entered an unpublished order which set the limit of a "reasonable time" to 120 days, with certain exceptions. The Board's regulations were subsequently revised to reflect this order, and now provide, in pertinent part:

(2) The hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere of the guilty verdict at the highest trial court level except as follows:

(i) If the parolee is confined outside the jurisdiction of the Pennsylvania Bureau of Correction, such as confinement out-of-state, confinement in a Federal correctional institution, or confinement in a county correctional institution where the parolee has not waived the full Board Revocation Hearing required by Commonwealth of Pennsylvania ex rel Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), in which case the final Revocation Hearing shall be held within 120 days of the official verification of the Board of the return of the parolee to a State correctional facility. The parolee, who is confined in a county correctional institution and who waived the final Revocation Hearing by a quorum of the Board as required in the Rambeau decision shall be deemed to be within the jurisdiction of the Pennsylvania Bureau of Correction beginning with the date of his waiver of such Board hearing.

37 Pa.Code § 71.4(2)(i). In this case, the guilty plea was entered while petitioner was confined in a county correctional institution, and he had not yet...