T. Palmer v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Troy Palmer, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 2068 C.D. 2007 Submitted: April 11, 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: May 23, 2008 Troy Palmer (Palmer) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that recommitted him to serve 12 months backtime as a technical parole violator. James L. Best, Esq. (Appointed Counsel), Palmer s appointed counsel, petitions for leave to withdraw. Because the issues raised in Palmer s petition are wholly frivolous, we affirm the Board s order and grant Appointed Counsel s petition to withdraw. In 2001, Palmer began serving a three to seven year sentence for the offense of corrupt organizations (state sentence). The state sentence had a minimum and maximum expiration date of July 24, 2004 and July 24, 2008, respectively. Certified Record (C.R.) at 1. Effective July 25, 2004, the Board paroled Palmer from the state sentence to an approved residence. Notably, as conditions of parole, the Board required Palmer: to maintain regular contact with parole supervision staff by notifying staff within 72 hours of any change in status, including changes in employment; to refrain from assaultive behavior, possessing ammunition, body armor, and drug paraphernalia; and, to remain inside the approved residence from 10 p.m. until 6 a.m. everyday. C.R. at 4-6, 8, 103-06. On November 15, 2006, the Board lodged a detainer against Palmer upon information he failed to notify his parole supervisor of a change in employment status, engaged in assaultive behavior against the mother of his child, possessed body armor and a hypodermic needle at his residence, and violated curfew. Id. at 10-15. A preliminary hearing was scheduled for November 27, 2006. Represented by John Hekking, Esq. (Hearing Counsel), Palmer waived the preliminary hearing in the presence of hearing examiner Audrey Starling (Examiner Starling). C.R. at 20. Subsequently, Examiner Starling conducted a violation hearing. C.R. at 27. During the violation hearing, the Board presented evidence establishing Palmer ceased employment and failed to notify his parole officer of the status change, possessed body armor and drug paraphernalia at his residence, 2 and violated curfew.1 In opposition, Hearing Counsel elicited testimony, made objections, and sought suppression of all evidence related to the search and seizure of the body armor and drug paraphernalia from Palmer s residence. Notably, Palmer did not object to Examiner Starling conducting the violation hearing. Examiner Starling subsequently rendered a decision recommitting Palmer as a technical parole violator, finding he failed to notify his parole supervisor of a change in employment status, possessed body armor and drug paraphernalia, and violated curfew.2 Palmer sought administrative review from the Board arguing Examiner Starling improperly presided over both the preliminary and violation hearings. He also asserted Hearing Counsel ineffectively represented him. The Board denied Palmer relief, finding his objections without merit. Palmer filed a petition for review, where he raised similar issues. In November 2007, this Court appointed Counsel to represent Palmer. Upon review of Palmer s petition for review, Appointed Counsel filed a petition to withdraw based on his determination Palmer s appeal lacked any basis in law or fact. In accordance with Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), Counsel filed a no-merit letter. 1 The Board did not present any evidence regarding Palmer s assaultive conduct because the alleged victim refused to testify. 2 Palmer does not challenge any findings of fact, and, therefore, they are conclusive on appeal. See Pa. Liquor Control Bd. v. Unemployment Comp. Bd. of Review, 879 A.2d 388, 390 n.4 (Pa. Cmwlth. 2005). 3 Initially, we note that an indigent parolee is entitled to appointed counsel on appeal, but this right does not require appointed counsel to prosecute a frivolous appeal. Presley v. Pa. Bd. of Prob. & Parole, 737 A.2d 858 (Pa. Cmwlth. 1999). Therefore, when in the exercise of his professional judgment, counsel determines the issues raised are wholly frivolous, and when this Court concurs, counsel will be permitted to withdraw. Id. A wholly frivolous appeal is one completely devoid of points that might arguably support an appeal. Congo v. Pa. Bd. of Prob. & Parole, 522 A.2d 676 (Pa. Cmwlth. 1987). To withdraw, counsel must satisfy the procedural requirements in Craig v. Pennsylvania Board of Probation & Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must notify the parolee of his request to withdraw, furnish the parolee with either a copy of a brief complying with Anders v. State of California, 386 U.S. 738 (1967), or a no-merit letter satisfying the requirements of Turner, and inform the parolee of his right to retain new counsel or submit a brief on his own behalf. If counsel proceeds under Turner, the letter must substantively contain: 1) the nature and extent of counsel's review; 2) the issues the parolee wishes to raise; and, 3) counsel's analysis in concluding the parolee s appeal is frivolous. Id.; see Funk v. Pa. Bd. of Prob. & Parole, 795 A.2d 489 (Pa. Cmwlth. 2002). We require counsel to comply with these requirements to ensure an offender s claims are considered and counsel has substantial reasons for concluding the claims are frivolous. Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). 4 Here, Appointed Counsel notified Palmer of his request to withdraw, advised Palmer of his right to obtain substitute counsel, and informed Palmer of his ability to submit a brief raising any points he desired. Further, Appointed Counsel served Palmer with a copy of his petition to withdraw and the no-merit letter. Therefore, Appointed Counsel complied with the technical requirements of Craig. Furthermore, Counsel s no-merit letter complies with Turner. It contains a statement indicating Appointed Counsel reviewed the proceedings affecting Palmer, Palmer s petition for review, and the Board s record. In addition, it addressed all the issues Palmer raised on appeal. Moreover, it sets forth Appointed Counsel s analysis of the issues and why each is frivolous. Accordingly, Appointed Counsel complied with Turner, and we may now conduct an independent review to ascertain whether Appointed Counsel s characterization of the appeal as frivolous is correct. Hill v. Pa. Bd. of Prob. & Parole, 707 A.2d 1214 (Pa. Cmwlth. 1998).3 Our independent evaluation reveals Palmer s contentions are wholly frivolous. First, Palmer maintains the Board failed to provide him a hearing in accordance with Section 71.2 of its regulations, 37 Pa. Code §71.2 (relating to procedure for violation of parole condition).4 More specifically, without 3 Our review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, or whether the necessary findings of fact were supported by substantial evidence. Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). 4 37 Pa. Code §71.2 provides, in relevant part (with emphasis added): (Footnote continued on next page ¦) 5 acknowledging he waived his preliminary hearing, Palmer argues Examiner Starling improperly presided over both his preliminary and violation hearings. Appointed Counsel addressed this issue and advised Palmer there is no legal basis to challenge Examiner Starling s role here because Palmer waived the preliminary hearing and agreed to proceed to a violation hearing before Examiner Starling. We agree with Appointed Counsel s analysis. Section 71.2 of the Board s regulations clearly provides that when a parolee waives his rights to a preliminary hearing and agrees to proceed before a (continued ¦) The following procedures shall be followed if a parolee, not already detained after appropriate hearings for other technical violations or criminal charges, has been charged with a technical violation: *** (5) When the parties are present and assembled for the preliminary hearing, the examiner shall verbally advise the parolee and counsel of the following: the parolee may retain counsel for the proceedings; the parolee may, with leave of the examiner, waive the right to the preliminary hearing; and, if the preliminary hearing is waived, the hearing may proceed as a violation hearing before the examiner, unless the parolee asserts the right to be heard by a panel at a violation hearing. *** (iv) If the parolee waives both the right to a preliminary hearing and the right to be heard by a panel at a violation hearing, both waivers shall be signed by the parolee. The examiner may follow the procedures governing violation hearings, and the Board may treat the proceeding as a violation hearing. 6 single hearing examiner, the hearing examiner may proceed under the procedures regarding violation hearings. See 37 Pa. Code §71.2(5)(iv). Here, Palmer waived his hearing rights and agreed to proceed before Examiner Starling. See C.R. at 28. Pursuant to Board regulations, Examiner Starling held a violation hearing. Examiner Starling committed no error, and Palmer s argument fails. Next, Palmer asserts an ineffective assistance of counsel claim. To this end, Palmer vaguely argues Hearing Counsel failed to fully investigate the validity of the technical violations and did not properly question witnesses. C.R. at 138. Appointed Counsel specifically addressed this issue and advised Palmer that Hearing Counsel effectively represented his interests. We agree. It is well settled that an indigent parolee facing revocation of his parole is entitled to appointed counsel to represent him before the Board. LaCourt v. Pa. Bd. of Prob. & Parole, 488 A.2d 70 (Pa. Cmwlth. 1985). A parolee s right to counsel only guarantees that an indigent parolee be appointed counsel who is competent and who represents his best interests in an effective manner. Vereen v. Pa. Bd. of Prob. & Parole, 515 A.2d 637 (Pa. Cmwlth. 1986); LaCourt. Because counsel s stewardship is presumptively effective, a parolee has the burden of demonstrating counsel s ineffectiveness so as to entitle him to relief. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Vereen; LaCourt. A parolee s ineffective assistance of counsel claim has two parts, both of which must be demonstrated before relief will be granted. Id. The parolee must show: (1) counsel made errors so serious that counsel was not functioning as 7 counsel guaranteed by law; and (2) counsel s errors were so serious that there is a reasonable probability that but for counsel s errors, the result of the proceeding would have been different. Vereen; LaCourt. Here, Palmer has not filed a brief in response to Appointed Counsel s no-merit letter and Palmer s petition fails to advance any specific allegation of ineffectiveness. See Pet. for Review. Palmer neither identifies what evidence Hearing Counsel failed to present when contesting the technical violations nor suggests relevant testimony that should have been elicited during the violation proceeding. Further, Palmer does not explain how the additional evidence or examination of witnesses would have affected the outcome of the proceeding. In addition, this Court s review of the record reveals no error, serious or otherwise. To the contrary, the record reveals Hearing Counsel effectively represented Palmer s interests. To this end, Hearing Counsel elicited testimony, made objections, and presented a suppression of evidence argument on Palmer s behalf. See C.R. at 26-102. Hearing Counsel unquestionably served his role as a zealous advocate here, and Palmer is not entitled to relief. Based on the foregoing, we conclude Appointed Counsel sufficiently addressed all the issues raised in Palmer s petition, and we agree the issues are wholly frivolous. Therefore, we affirm the Board s order and grant Counsel s petition to withdraw. ROBERT SIMPSON, Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Troy Palmer, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 2068 C.D. 2007 ORDER AND NOW, this 23rd day of May, 2008, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED and the petition of James L. Best, Esq. to withdraw as counsel is GRANTED. ROBERT SIMPSON, Judge
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