J. Williams v. PA Board of Probation and Parole (Complete Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jermaine L. Williams, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1494 C.D. 2007 Submitted: February 15, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: April 24, 2008 Jermaine L. Williams (Williams) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal of a Board order recommitting him as a technical parole violator to serve nine months backtime on his seven-year state prison sentence. On appeal, Williams asserts the Board violated his right to due process because it failed to provide a final fact-finding hearing prior to parole revocation and because it utilized improper procedures for obtaining Williams violation hearing waiver. In accord with our recent decision in Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257 (Pa. Cmwlth. 2008), we affirm. In 2000, Williams began serving a seven-year sentence for drugrelated offenses and escape (original state sentence). Certified Record (C.R.) at 3. The Board first paroled Williams in June 2004. Id. at 12. Shortly thereafter, the Board declared Williams delinquent. Id. at 15. In January 2005, the Board recommitted Williams to serve six months backtime as a technical parole violator (failure to report and use of drugs). Id. at 16. The evidence upon which the Board relied included Williams admission to the violations. Id. Thereafter, the Board paroled Williams a second time in June 2005. Id. at 20. Less than a month after his parole, the Board again declared Williams delinquent, and it ultimately recommitted him to serve twelve months backtime as a convicted and technical parole violator.1 Id. at 24; 25-30. Again, the Board relied in part on Williams admission to revoke his parole. Id. at 25. The Board last paroled Williams on December 26, 2006. Id. at 32. Later that same day, the Board declared Williams delinquent when he failed to report to a parole agent. Id. at 36. A month after his parole, and while he was delinquent, Harrisburg police arrested Williams in late January 2007 for providing false identification to law enforcement authorities. Id. at 37. Accordingly, the Board lodged a detainer. Id. at 38. The resulting notice of charges and hearings alleged Williams violated Condition #4 of his parole. Id. at 39. This condition required Williams to comply with all local, state and federal criminal laws as well as the Vehicle Code, 75 Pa. C.S. §§101-9805, and the Liquor Code, Act of April 12, 1951, as amended, 47 P.S. §§1-101 10-1001. Id. Thus, within two years of 1 Williams was convicted of fleeing or attempting to elude a police officer; providing false identification to law enforcement; and, using or possessing drug paraphernalia. The technical violations included change of address without permission; drug use; and, failure to complete a community corrections program. Certified Record (C.R.) at 25-27; 37. 2 Williams first parole, the Board recommitted Williams twice for technical parole violations. On February 20, 2007, twenty days after his arrest, Williams executed several Board forms while incarcerated. Williams signed these forms in the presence of Parole Agent Larry Smith (Parole Agent). In particular, Williams signed a notice of charges and hearings. C.R. at 39. He also executed forms waiving representation by counsel, his right to a preliminary hearing, and his right to a panel hearing. Id. at 49-50. Important for this appeal, Williams also executed a violation hearing waiver the same day. Id. at 51. In this form, Williams acknowledged an understanding of his constitutional rights to a violation hearing, and he waived the right of his own free will, without promise, threat or coercion. Id. Williams also knowingly, voluntarily and willingly, admitted to a violation of Condition #4 of his parole. Id. He further acknowledged his right to withdraw his admission of the violation within ten calendar days. Id. In the space provided, Williams did not offer an explanation for his conduct. Id. Parole Agent witnessed Williams execution of the violation hearing waiver. Id. A Board panel subsequently prepared a report based on Williams waivers and admission. Id. at 43-48. Relying on Williams admission in the violation hearing waiver, the Board recommitted him to serve nine months backtime. Id. at 60. 3 Represented by the Centre County Public Defender s Office, Williams filed a petition for administrative relief. C.R. at 62-64. Raising numerous issues, Williams alleged the Board violated his due process rights by failing to conduct a final revocation hearing. He also alleged the Board s violation hearing waiver form is not authorized by the act commonly known as the Parole Act.2 Williams further alleged, to the extent he executed a violation hearing waiver, that he did not knowingly and intelligently waive his right to the hearing. Williams maintained Parole Agent failed to advise Williams of his rights under Board regulation 71.2, 37 Pa. Code §71.2.3 In addition, Williams did not appear before a hearing examiner to be verbally advised of his right counsel. See 37 Pa. Code §71.2(5) (where parolee is present for preliminary hearing, the examiner shall verbally advise the parole of his right to counsel). These events, Williams asserted, violated due process. 2 Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §§331.6 331.34a. 3 The Board s regulation details the procedures it must follow when charging a parolee with technical parole violations. It also explains the parolee s due process rights during the revocation process, including the right to counsel during the revocation proceeding; the right to a preliminary hearing to determine whether probable cause exists to believe the parolee committed a parole violation; and the right to a violation hearing to determine, based on the evidence presented, whether the parole violation occurred. 37 Pa. Code §71.2. Specifically, Williams asserted Parole Agent unlawfully induced execution of the violation hearing waiver by promising Williams a faster turnaround time on his greensheet. He abandons this claim on appeal. Williams further alleged Parole Agent failed to inform Williams a preliminary hearing would be held within 14 days; he had the right to counsel; and, there is no penalty for requesting counsel. See id. at §71.2(1)(ii), (iv); (11)(vi). However, Williams admits executing Board Form 72, which generally identifies these rights, in his appellate brief. Pet r Br. at 13; C.R. at 49-50. 4 The Board reviewed the existing record and affirmed its recommitment order, noting Williams admitted the violation. C.R. at 70; see Wile, Pennsylvania Law of Probation and Parole, §17.7 (2d ed. 2003) (Board review is limited to determining whether the decision is supported by substantial evidence or whether a violation of law occurred). Williams appealed.4 Williams now asserts the Board violated his due process rights by failing to conduct a final revocation hearing in accord with its regulations. See 37 Pa. Code §71.2. He also contends the Board s procedures in securing the hearing violation waiver violated his right to due process because the Parole Act and Board regulations mandate a final hearing for state parole revocation proceedings. Specifically, assuming the laws allow for waiver, Williams asserts his waiver was not intelligent because a hearing examiner did not advise him of his rights, in particular the right to counsel. He claims the lack of a valid waiver of counsel invalidates the purported violation hearing waiver. In addition, he claims the Board s actions impermissibly commingled the duties of a parole agent and a hearing examiner. We recently addressed the same claims in Prebella and, therefore, a closer review of that case is appropriate. In Prebella, the Board likewise recommitted the parolee several times for technical parole violations. The final revocation decision providing the basis for our opinion occurred when a treatment 4 Our review is limited to determining whether the substantial evidence supports the Board s decision, and whether the Board erred as a matter of law or violated the parolee s constitutional rights. 2 Pa. C.S. §704; Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). 5 center discharged the parolee for using illicit drugs. As a result of his discharge from the treatment program, the Board arrested the parolee. On arrest, the parolee admitted to his parole agent that he used cocaine. Four days after his arrest, the parolee executed several Board forms. In the forms, the parolee waived counsel but requested a hearing, waived a preliminary hearing but requested a violation hearing, and waived a panel hearing. Of primary interest for current purposes, the parolee in Prebella also executed the same violation hearing waiver form at issue here, acknowledging his constitutional rights and the violation of his parole. Without a hearing, the Board recommitted Prebella, based on his admissions. After the Board s decision and despite the violation hearing waiver and admissions, the parolee sought administrative relief. Specifically, the parolee asserted his parole agent promised him placement in a half-way back program if he admitted to using a controlled substance. The Board, noting the record reflected the parolee voluntarily admitted two technical parole violations, affirmed its recommitment order. On appeal to this Court, the parolee asserted his uncounseled waiver of a violation hearing transgressed the Board s regulations and deprived him of the right to counsel. Speaking through the current author, this Court rejected the parolee s claims and explained, at length: the Board s regulations specifically envision waivers by parolees accused of violations, including waiver of a violation hearing. See 37 Pa. Code §71.2(5) (right to preliminary hearing and right to counsel may be waived, parolee may waive right to have violation hearing before Board panel); 37 Pa. Code §71.21(7) (violations may be admitted, agreed to or stipulated); 37 Pa. Code §71.2(9) 6 (examiner shall initiate scheduling a violating hearing if desired by the parolee or by the Board s representative to resolve remaining contested relevant facts ) (emphasis added). Further, ¦ Pennsylvania law clearly supports the type of waivers executed here. In order to effectuate a knowing and voluntary waiver in Parole Board cases, all that is required is for the Board to show that it followed its own regulations and provided the necessary information to the offender prior to the offender signing the written waiver form. See Robyler v. Pa. Bd. of Prob. & Parole, [609 A.2d 884 (Pa. Cmwlth. 1992)] (waiver of counsel); Wile Pennsylvania Law of Probation and Parole, §13.25 (2d. ed. 2003). The waiver need not be effectuated in an on the record colloquy. See Coades v. Pa. Bd. of Prob. & Parole, [480 A.2d 1298, 1305 (Pa. Cmwlth. 1984)] (waiver of counsel). Rather, as here, execution of the Board s form is sufficient. See also Hill v. Pa. Bd. of Prob. & Parole, [492 A.2d 80 (Pa. Cmwlth. 1985)] (waiver of counsel). Right to counsel in a state parole violation hearing is not based on either the state or federal constitutions, but rather on statutory law, case law and regulatory law. Worthington v. Pa. Bd. of Prob. & Parole, 784 A.2d 275 (Pa. Cmwlth. 2001). A parolee s waiver of counsel is deemed informed and voluntary if, as here, the parolee is informed of [the] right to counsel, provided the name and address of the appropriate public defender, and gives his written statement that he has been fully advised of this right and waived it out of his own free will. Roblyer; Hill. There is no authority that each of multiple waiver forms must contain a provision waiving the right to counsel; there is no authority that a parolee must repeatedly waive the right to counsel; and there is no authority that an unconditional waiver of counsel is nevertheless implicitly limited in duration or breadth. Rather, a written waiver of counsel continues effective according to its terms until revoked by a parolee. A parolee must have an opportunity to be heard and to show, if he can, that he did not violate the 7 conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation. Morrissey v. Brewer, [408 U.S. 471, 488 (1972)]. However, nothing in Morrissey prevents a parolee from waiving a violation hearing without first consulting counsel. A parole revocation hearing is not the equivalent of a criminal prosecution in any sense. Id. at 489. In addition, ¦ the violation hearing waiver form here reflects [the parolee] voluntarily, knowingly and intelligently waived his right to a violation hearing and admitted the parole violations. ¦. Prebella, 942 A.2d at 261-262 (emphasis by italics added).5 As in Prebella, the record here shows Williams, a recidivist parole violator, signed the violation hearing waiver after being advised his constitutional rights to preliminary and violation hearings, and that he did so of his own free will, without promise, threat or coercion. C.R. at 51. Williams further admitted the violation knowingly, intelligently, and voluntarily, and with knowledge his admission could be withdrawn within ten days. Id. Indeed, Williams does not claim innocence or that he attempted to withdraw his admission. In view of the foregoing, the record supports the Board s final decision Williams admitted violation of his parole. Id. at 60. 5 We further reject Williams claims that the Board s violation hearing waiver form commingles the duties of the parole agent and the hearing examiner, each having the duty to advise a parolee of the right to counsel. As we stated in Prebella, there is no authority that a parolee must repeatedly waive the right to counsel or that an unconditional waiver of counsel is limited in duration or breadth; [r]ather, a written waiver of counsel continues effective according to its terms until revoked by a parolee. Id. at 262. Thus, it matters not at what stage of the proceedings the parolee executes a waiver of counsel or by whom the waiver is procured so long as the parolee is advised of the right. 8 Accordingly, we affirm. ROBERT SIMPSON, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jermaine L. Williams, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1494 C.D. 2007 ORDER AND NOW, this 24th day of April, 2008, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED. ROBERT SIMPSON, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jermaine L. Williams, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1494 C.D. 2007 Submitted: February 15, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE SMITH-RIBNER FILED: April 24, 2008 I respectfully dissent because the majority failed to resolve the issue regarding the validity of Petitioner Jermaine L. Williams' written waiver of his right to counsel in this revocation proceeding. Williams argues that the Board of Probation and Parole (hereafter Board) violated his due process rights by failing to ascertain that Williams intelligently waived his right to counsel. See 37 Pa. Code §71.2(1)(iv) ("parolee shall be notified of the following: ¦ [t]he right to retain counsel, and the name and address of the public defender of the county of confinement"). To effectuate a valid waiver of his right, the Board must establish that Williams received oral as well as written notice that he had a right to retain counsel and that he was entitled to a public defender, if indigent, and provided with the name and address of the local public defender. See 37 Pa. Code §71.2(5), (14). Williams acknowledges that the record contains his written notice of charges and that the reverse side contains a listing of his right to counsel and to a free public defender if indigent. However, the record fails to show that he was given oral notice of this right, and the space on the notice provided to him is blank where the name and address of the public defender is to be listed while no notice, oral or written, was given indicating that he would not be penalized by requesting counsel. See Roblyer v. Pennsylvania Board of Probation and Parole, 609 A.2d 884 (Pa. Cmwlth. 1992). Williams argues that the Board did not comply with its regulations and that these omissions prove that his written waiver was not valid. The majority relies on Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257 (Pa. Cmwlth. 2008), where the Court held that the parolee voluntarily, knowingly and intelligently waived his right to counsel, right to a preliminary hearing and right to a violation hearing because Pennsylvania law supported the type of waiver that he signed. It rejected his argument that he was induced to do so by a promise from Board staff regarding his return to a halfway house program. The Court highlighted language included in the form, which stated that rights were waived of the signer's own free will, without promise, threat or coercion. The majority summarily responds to Williams' arguments by stating that he signed his waiver after "being advised his constitutional rights to preliminary and violation hearings, and that he did so of his 'own free will, without promises, threat or coercion.' " Slip Op. at 8. In Roblyer this Court reversed a Board order to deny reconsideration of its recommitment decision and remanded the matter for the Board to conduct a hearing to determine whether the petitioner had made a voluntary and informed waiver of his right to counsel (particularly in that case where the parolee was under medication), and if the Board determined that the waiver was not voluntary it was to hold a parole revocation hearing where the petitioner would be represented by counsel if he so chose. In Roblyer the issue was not even raised in an DAS-R - 12 administrative appeal; rather, it was raised for the first time in his request for the Board to reconsider its recommitment order. The Court rejected the strict test for finding a valid waiver of counsel in criminal proceedings, but it held that it was sufficient if "the Board inform the parolee of the right to counsel, provide the name and address of the appropriate public defender and obtain a written statement from the parolee that he has been fully advised of his right and has waived it of his or her own free will, without threat or coercion." Id., 609 A.2d at 886. In Coades v. Pennsylvania Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984), cited in Prebella, the Court discussed Board regulations that require the Board to notify a parolee, orally and in writing, of a right to retain counsel and the right to free counsel, if indigent, and to provide the parolee with the name and address of the local public defender. The Court determined that the Board must assure the parolee that he will not be penalized for requesting counsel, and it noted that the Board's form adopted in 1977 provides this information printed on the reverse side. However, the Court was unequivocal when it stated that the Board or hearing examiner must ensure that a parolee is aware of the right to counsel and the right to free counsel, if indigent, and that no penalty will befall the parolee if he requests counsel. The Court indicated that Board regulations do not require that this counseling take place on the record so long as the Board follows its regulations and provides the parolee with the required counseling. In Hill v. Pennsylvania Board of Probation and Parole, 492 A.2d 80 (Pa. Cmwlth. 1985), the Court concluded that the Board complied there with the requirements set forth in Coades for effecting a valid waiver of counsel. The Board there informed the parolee of his right to counsel at a hearing and of his right to free counsel, if DAS-R - 13 indigent, and provided him with the name and address of the applicable public defender. The record here is devoid of any evidence to show that Williams was orally informed by a hearing examiner, hearing panel or Board staff regarding his right to counsel and the right to free counsel if he could not afford to retain counsel. A review of the waiver form signed by Williams shows that he was not provided with the name and address of the applicable public defender; the space provided for this information is blank. See Certified Record, Section 14, p. 49. The majority excuses the Board s failure to comply with its own regulations and dismisses Williams argument in this regard by simply stating that he signed the waiver form of his own free will and made no effort to withdraw it. That is not the standard and does not represent a legally sufficient basis for rejecting the argument presented. Roblyer; Coades; Hill. I therefore dissent because the record clearly demonstrates that the Board did not comply with its own regulations in obtaining Williams waiver of counsel. DORIS A. SMITH-RIBNER, Judge DAS-R - 14

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