Smith v. Com., Pennsylvania Bd. of Probation and Parole

• Decision Date: 25 April 1990
• Parties: , 58 USLW 2690 Pernell SMITH, Appellant, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE.
• Court: Pennsylvania Supreme Court

Page 558

574 A.2d 558

524 Pa. 500, 58 USLW 2690

Pernell SMITH, Appellant, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF

PROBATION AND PAROLE.

Supreme Court of Pennsylvania.

Argued Sept. 26, 1989.

Decided April 25, 1990.

[524 Pa. 502] Vincent J. Quinn, Asst. Public Defender, for appellant.

Timothy P. Wile, Asst. Chief Counsel and Robert A. Greevy, Chief Counsel, Harrisburg, for Pennsylvania Bd. of Probation and Parole, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION

NIX, Chief Justice.

This appeal, one of six such appeals consolidated for our review, asks that we consider the propriety of an order of the Commonwealth Court assessing attorney's fees and costs against appointed counsel for prosecuting what the court determined to be a frivolous appeal. For the following reasons, we uphold the authority of the Commonwealth Court to issue such an order. Therefore, we affirm the order in the instant case. The following facts are pertinent to the instant inquiry.

On January 25, 1985, appellant Pernell Smith was convicted of robbery and sentenced to a term of imprisonment of not less than eight months nor more than four years, eleven months. He was paroled on October 3, 1986, subject to the special condition that he maintain employment once obtained. Subsequently, the Board of Probation and Parole ("Board") discovered that he had failed to report to work, and appellant was arrested for a technical violation of the special condition of his probation. Appellant waived his right to counsel and to a full Board hearing and admitted to the technical violation. His arguments that he wanted a better paying job were rejected, and appellant was recommitted to serve ten months' back time, a term within the presumptive range ¹ of three to eleven months. After receiving notice of his recommitment, appellant requested and was appointed counsel from the Lancaster County Public Defender's Office. He filed a Petition for Administrative Relief, which was denied. He then filed a Petition for Review with the Commonwealth Court. The court determined appellant's appeal to be frivolous because the court had repeatedly held that it would not review the discretionary recommitment when the recommitment period is within the presumptive range. On that basis, the Commonwealth Court granted the Board's petition for attorney's fees pursuant to Rule 2744 of the Pennsylvania Rules of Appellate Procedure 117 Pa.Cmwlth. 220, 543 A.2d 221. Pa.R.A.P. 2744. The instant appeal is taken from that order.

Appellant raises two issues for our review. His initial contention is that the Commonwealth Court's order assessing attorney's fees against him and his court-appointed counsel, jointly and severally, is a violation of his constitutional right to appeal. Secondly, appellant contends that there is no material difference between offering an advocate's brief setting forth the arguments advanced by the client and the procedures prescribed by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), where counsel acknowledges that the client's claims are devoid of merit.

These contentions reflect a fundamental misconception of our judicial process. The tribunal of original jurisdiction possesses the authority to assess the facts, reconcile conflicts of facts, and impose appropriate sanctions provided by law. The reviewing court merely assesses the actions of the inferior tribunal to determine whether that body committed errors of law or abused its discretion in imposing its mandate. The power to impose the sanction is vested in the tribunal of original jurisdiction and it will not be disturbed by a reviewing body unless there is a demonstration that the original forum failed to follow existing law or abused its discretion. In this instance, the tribunal of original jurisdiction was the Board of Probation and Parole. The Board acted in this matter pursuant to 37 Pa.Code § 75.3. ² This provision provides that recommitment can be ordered by the Board where there has been a finding of substantial evidence that a parole violation has occurred. As long as the period of recommitment is within the presumptive range for the violation, the Commonwealth Court will not entertain challenges to the propriety of the term of recommitment. Congo v. Pennsylvania Board of Probation and Parole, 104 Pa.Commw. 511, 522 A.2d 676 (1987); Wagner v. Pennsylvania Board of Probation and Parole, 92 Pa.Commw. 132, 498 A.2d 1007 (1985); Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa.Commw. 49, 484 A.2d 413 (1984).

As reflected in section 75.3(b), the presumptive ranges of parole backtime set forth in the Code "are intended to structure the discretion of the Board while allowing for individual circumstances in terms of mitigation and aggravation to be considered in the ... decision." As long as the recommittal is within the presumptive range, the Board's judgment in assessing mitigating and aggravating factors is precluded from further review. The heart of the instant complaint is that the preclusion of review of the Board's assessment of mitigating and aggravating factors within the presumptive range violates the right of appeal.

Appellant's contention fails to acknowledge the fact that the standard of review of recommitment orders by the Parole Board has been established by the legislature. The Parole Board is an independent administrative agency established by the legislature as part of an exclusive system for the administration of parole in Pennsylvania. Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 583, 28 A.2d 897, 898 (1942); 61 P.S. § 331.1 et seq. ³ The Board is governed by the Administrative Law and Procedure Act, 2 Pa.C.S. § 101 et seq., which provides authority for the Board to promulgate rules and regulations to effectuate its purposes. 2 Pa.C.S. § 102; see also, 61 P.S. §§ 331.1, 331.2. The Administrative Law and Procedure Act also provides the means of judicial review of actions taken by the Board. 2 Pa.C.S. § 704. The Act provides, in pertinent part:

§ 704. Disposition of appeal

The court shall hear the appeal.... After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the [rules relating to agency practice and procedure] have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence....

Thus, once the Board has acted pursuant to its regulations, the Commonwealth Court's duty is to review the action to see if the basis for it is established by substantial evidence.

Here the Board's action was the recommitment of appellant to prison after a determination that he was a technical parole violator. This determination was based upon a finding that he had violated Special Condition No. 6 of his parole, maintaining employment once secured. Appellant does not challenge the Board's action as being a violation of his constitutional rights or the law, nor does he dispute that he failed to maintain employment. Rather, his allegations are premised upon the belief that the Board did not give adequate consideration to the evidence he presented as a mitigating circumstance. We affirm that this aspect of the recommitment order is not appealable. See Chapman v. Pennsylvania Board of Probation and Parole, supra. The Board is accorded broad discretion in the assessment of aggravating and mitigating circumstances, much like the trial court is accorded discretion in its exercise of sentencing power. See Commonwealth v. Jones, 523 Pa. 138, 565 A.2d 732 (1989). To restrict the Board's discretion in this limited area would be to open the floodgates of litigation to the many parole violators who would challenge an action of the Board which is already narrowed by the Board's own regulations. This we decline to do. Absent some special circumstances which would justify a reconsideration of our determination that this delegation is constitutional, see Commonwealth ex rel. Banks v. Cain, supra, the Board's exercise of its discretion, within the reasonable parameters reflected by the establishment of the presumptive range, must be upheld.

Generally, an appeal which is determined to lack any basis in law or fact is considered to be frivolous. McCoy v. Court of Appeals, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). An appeal is not frivolous merely because it lacks merit. Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974). In focusing upon this concept of frivolity which the Supreme Court relied upon in Anders to justify the withdrawal of counsel, this Court made the following pertinent observation in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185, 1187 (1981):

[I]t is apparent that the right to withdraw is in the first instance tied to a finding, after a conscientious review of the record, that the appeal is "wholly frivolous." This Court has also noted "that lack of merit in an appeal is not the legal equivalent of frivolity." (Citation omitted.)

Anders 'appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.' (Citation omitted.)

The United States Supreme Court further noted in McCoy, supra, that:

[T]he terms "wholly frivolous" and "without merit" are often used interchangeably in the Anders brief context. Whatever term is used to describe the conclusion an attorney must reach as to the appeal before requesting to withdraw and the court must reach before granting the request, what is required is a determination that the appeal lacks any basis in law or fact.

486 U.S. at 438-39 n. 10, 108 S.Ct. at 1902 n. 10, ...