noting that a defendant is entitled to the assistance of counsel -8- J-S15030-23 at his parole revocation hearing because the assistance of counsel is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected
How later courts described this case
- noting that a defendant is entitled to the assistance of counsel -8- J-S15030-23 at his parole revocation hearing because the assistance of counsel is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected
- upholding the constitutional right of a convicted parolee to a revocation hearing and counsel, and, after failure of the board to afford the parolee those rights, remanding for a new revocation hearing
- prisoner has due process right to be heard by whole Board which must evaluate whether reasonable cause exists to believe parole has been violated; no reference to a delegation of authority to conduct the revocation hearing as in 28 DCMR 219.4 (1987)
- rejecting claimed violations of constitutional protections against double jeopardy and bills of attainder
Written by the judges who cited it.
The opinion
Concurring and Dissenting Opinion by
Mr. Justice Eagen :
In Morrissey and Booher v. Brewer, 408 U.S. 471 , 92 S. Ct. 2593 (1972), upon which the majority mainly rely for their decision in this case, the United States Supreme Court ruled that before a State may revoke the parole of an alleged technical parole violator (i.e., one who violated conditions of parole), constitutional due process requires that the parolee receive adequate written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard in person and to present witnesses before a neutral and detached body, such as a traditional parole board, and a statement of findings by the hearing body detailing why the parole is revoked. It did not rule as the majority opinion indicates that a hearing and the other protective procedures mentioned are required if the revocation is based on the parolee’s conviction of a crime while on parole. Nonetheless, I agree with the *26 majority that such procedures are wise and should be followed in all revocation parole cases. This would not impose too great or unfair a burden on the Commonwealth or the taxpayers.
The above conclusion is also influenced by the fact that, even where the revocation is grounded on the commission of a crime while on parole, the Board of Parole may in its discretion abstain from entering a revocation order. See The Act of August 6, 1941, P. L. 861, §21.1, as amended, 61 P.S. §331.21a. At such a hearing, while the parolee may not relitigate issues already determined against him in another forum, such as the commission of the crime (see Morrissey and Booher v. Brewer, supra), he will have the opportunity of presenting evidence to influence the Board’s discretion in his favor.
However, I strongly disagree with the majority’s ruling that a convicted parolee must be given the assistance of legal counsel at a revocation hearing. In Morrissey, the Court specifically refrained from resolving whether the assistance of counsel is required at a revocation parole hearing based on technical violations. But, it did emphasize the required hearing need not be before a board including judicial officers or lawyers, and also significantly said parole revocation “is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” 408 U.S. at 480 , 92 S. Ct. at 2600 . Furthermore, the court’s order in Morrissey impliedly indicates legal assistance is not constitutionally required.
In Morrissey the State asserted in its brief that the parolees involved had been given a hearing (without counsel) before the Parole Board and that the parolees had admitted to the Board violating the conditions of parole (again without counsel). Since the record failed to include evidence sustaining the State’s assertion as *27 to this the Court remanded the record for further proceedings and said: “If it is determined that petitioners [the parolees] admitted parole violations to the Parole Board . . . and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter. If the procedures . . . are found to meet the standards laid down in this opinion that, too, would dispose of the due process claims for these cases.” It appears to me that if the assistance of counsel is constitutionally required, the Court would not have ordered such a remand, but would have reversed the orders of revocation forthwith. 408 U.S. at 490 , 92 S. Ct. at 2605 .
I am not unmindful that in Commonwealth v. Tinson, 433 Pa. 328 , 249 A. 2d 549 (1969), we held that at the hearing sur revocation of parole for technical violations the parolee must be provided with the assistance of counsel. Our decision in Tins on apparently gives the parolee more than is constitutionally required. Cf. Morrissey and Booher v. Brewer. Regardless of this, a substantia] difference exists between the situation where the revocation of parole is based on technical violations and that where the revocation is based on the commission of a crime while on parole. In the former instance, the truth of the commission of the violations has never been litigated or established and if the parolee denies such violations occurred, in all fairness he should have the opportunity to refute the charges with the assistance of counsel. However, in the situation where the commission of crimes, while on parole has been established either by trial or guilty plea in another forum, this issue may not be relitigated in the parole revocation hearing. But since the parolee may offer evidence at such a hearing of extenuating circumstances to influence the Board’s decision, the question may arise, as to how such a hearing differs from the proceeding where sentence is imposed by a court following *28 a conviction of criminal charges and in which counsel is constitutionally required. The simple answer is that, unlike a sentencing hearing, a revocation parole hearing “is not part of the criminal prosecution . . . and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” 408 U.S. at 480 , 92 S. Ct. at 2600 .
Mr. Chief Justice Jones joins in this concurring and dissenting opinion.