since parolees right to counsel is not as strongly protected as is a criminal defendants, the re quirements to effectuate an effective waiver of that right are not as stringent
How later courts described this case
- since parolees right to counsel is not as strongly protected as is a criminal defendants, the re quirements to effectuate an effective waiver of that right are not as stringent
- a review of this Court's decisions interpreting our State Constitution indicates that the due process guarantees of our Constitution are no greater than those afforded by the federal constitution
- to effectuate parolee’s valid waiver of counsel, Board must inform parolee of right to counsel at hearings, right to free counsel if indigent, and name and address of appropriate public defender
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Judge Barry :
I dissent.
Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8 , 314 A.2d 842 (1973), involved a constitutional challenge to tbe procedures by which the Commonwealth revoked parole and recommitted a parolee convicted *505 of a crime committed while on parole. The Pennsylvania Supreme Court held, in a 5-2 vote on this issue, that parolees are entitled to representation by counsel at parole revocation hearings. It reasoned that a parolee is entitled to assistance of counsel because a parole revocation hearing involves critical rights of a convicted parole violator. The court, furthermore, noted that it had recently extended the same rights to technical parole violators, Commonwealth v. Tinson, 433 Pa. 328 , 249 A.2d 549 (1969), and that, similarly, aid of counsel might be as crucial to a technical parole violator as to a convicted parole violator. Rambeau has been recognized in various other contexts such as in Commonwealth v. Fowler, 271 Pa. Superior Ct. 138 , 412 A.2d 614 (1979), where the court set forth certain guidelines to establish whether a parolee’s waiver of the right to counsel was voluntary and informed, and in Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 32 , 424 A.2d 561 (1981), where we held that the public defender of the county in which an indigent parolee is incarcerated must, upon proper request provide counsel for a parole revocation hearing.
In Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549 , 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981), the Pennsylvania Supreme Court’s most recent pronouncement on this issue involved an indigent parolee, convicted on new charges, who alleged, in part, that he was improperly denied assistance of counsel at a parole revocation hearing. Citing both Bambean and Tinson , the Pennsylvania Supreme Court held that counsel is required at a parole revocation hearing to insure the constitutional validity of that hearing.
I believe these cases demonstrate that the Pennsylvania Supreme Court recognizes the parolee’s right to counsel under our state constitution. In this re *506 spect, the Pennsylvania Constitution provides protections not contained in the United States Constitution. Gagnon v. Scarpelli, 411 U.S. 778 (1973). Gagnon held that counsel is constitutionally required where there is substantial justification or mitigation of the parole violation, which would render revocation inappropriate or'there may be complex or difficult defenses to present. With an opportunity to expressly narrow its holdings in Rambeau and Tinson by adopting the Gagnon rationale, the Pennsylvania Supreme Court in Bronson chose otherwise. This decision binds us.
• The Board has recognized this rule of law and promulgated'rules- which explicitly recognize that a convicted parole violator is entitled to appointed counsel at his' parole revocation hearing. 37 Pa. Code §71.4 (3) (ii).
• I believe the petitioner argues correctly that his right to be represented by counsel has been violated because his waiver of the right to counsel was not informed and voluntary. Examination of the colloquy between the Board and the petitioner indicates that petitioner did not have the requisite understanding to knowingly, intelligently, and voluntarily waive his right to counsel. The Board, however, could have assured that petitioner’s waiver was voluntary and informed and, therefore, valid had it made a more penetrating and comprehensive inquiry into the circumstances before the waiver was tendered.
I, moreover, believe that we should model guidelines for valid .waiver of counsel in parole revocation hearings after Fowler . What good is a right if the system doesn’t provide for its protection? The parolee must understand the nature of his parole violation, the consequence of his conduct, the possible justification or mitigation of the parole violation which would render revocation inappropriate and which may be complex to present or develop, and all other facts *507 necessary for comprehension of the entire proceeding. I do not believe that adoption of these guidelines would imply that the Board’s proceedings are part of a criminal proceeding. Nevertheless, as the Supreme Court stated in Commonwealth v. Brown, 503 Pa. 514, 526 , 469 A.2d 1371, 1377 (1983):
Most important is that it must be remembered parole and probation as well as the criminal trial fall under the penumbra of the criminal justice system. All of the components of that system are designed to achieve the basic objectives of the system. Each segment of the system intermeshes with the whole to achieve the overall objectives of the system, and the efficiency of the system is dependent upon the harmony existing between the parts. Thus to suggest that the policies of one segment seek a purpose inimical to the policies of the others misconstrues the relationship of the various components among themselves.
For these reasons, I would hold that, since the record does not indicate that petitioner effectively waived his right to counsel, the case should be remanded to the Board for the appointment of counsel to assist petitioner should he be unwilling to waive the right to counsel following an effective on-the-record colloquy.