D. Vest v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donnelle Vest, :
Petitioner :
: No. 189 C.D. 2022
v. :
: Submitted: December 2, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 20, 2024
Donnelle Vest (Petitioner) petitions for review of the February 3, 2022
Order of the Pennsylvania Parole Board (Board) that denied his request for
administrative relief and affirmed its February 8, 2021 decision ordering him to serve
6 months of backtime based on his recommitment as a technical parole violator (TPV)
and a concurrent term of 72 months’ backtime based on his recommitment as a
convicted parole violator (CPV). Petitioner’s sole argument on appeal is that he was
denied his right to counsel during the administrative appeal process. Upon review, we
affirm.
Facts and Procedural History
On March 22, 2002, Petitioner was sentenced in the Philadelphia County
Court of Common Pleas (trial court) to an aggregate term of 6½ to 15 years’
incarceration after he was convicted of three counts of robbery and one count of
criminal conspiracy, with a maximum sentence date of July 16, 2016. The Board
granted Petitioner parole, and he was released on February 11, 2008, to a community
corrections residency. (Certified Record (C.R.) at 10.)
On January 3, 2010, Petitioner was arrested in Philadelphia on charges of
possession of a controlled substance and possession with intent to deliver a controlled
substance. While Petitioner was found guilty of these drug offenses, his conviction
was overturned on appeal in February of 2011. (C.R. at 50.)
The Board declared Petitioner delinquent on June 8, 2011, after he moved
from his approved residence without obtaining written permission from the parole
supervision staff. The Board issued a warrant for Petitioner’s arrest after he was
arrested in Avondale, Arizona, on July 23, 2011, for armed robbery, burglary, and
kidnapping. Petitioner was found guilty of these offenses and on September 27, 2011,
he was sentenced by the Maricopa County Superior Court to an aggregate term of 10½
years’ incarceration.
On December 13, 2020, Petitioner was extradited to Pennsylvania and
returned to State Correctional Institution at Greene. Thereafter, the Board provided
him with a notice of revocation hearing reflecting the new conviction and technical
parole violation. (C.R. at 44-46.) Petitioner waived his rights to counsel and a
revocation hearing, and he admitted to the parole violations. The Board issued the
February 8, 2021 Notice of Decision (mailed February 18, 2021) recommitting him to
serve an aggregate term of 72 months’ backtime and recalculating his new maximum
date as March 16, 2028 (Decision). (C.R. at 73.) The Board advised Petitioner of his
ability to appeal the Decision and of his “right to an attorney in this appeal and in any
subsequent appeal to the Commonwealth Court.” (C.R. at 74.) It additionally informed
him that he “may be entitled to counsel from the public defender’s office at no cost.”
2
(C.R. at 74 (emphasis added).) The Decision enclosed the administrative remedies
form listing the names and addresses of all chief public defenders in the
Commonwealth and directed that “any request for a public defender should be sent
directly to the public defender’s office in the county where you currently reside.” (C.R.
at 74.)
The Board received a letter from Petitioner on March 10, 2021
(postmarked two days earlier), indicating that he had written to the Greene County
Public Defender on February 24, 2021, and that he had not received a response.
Petitioner asked if an appeal from the Decision had been filed on his behalf. (C.R. at
75.) The Board received a second letter from Petitioner on April 27, 2021 (postmarked
April 20), asking whether an appeal from the Decision had been filed and if any ruling
had been issued. Petitioner then filed an administrative remedies form with the Board
on June 21, 2021, challenging his recommitment. (C.R. at 79.) On February 3, 2022,
the Board denied Petitioner’s administrative appeal and affirmed its Decision,
explaining in pertinent part:
First, with respect to the correspondence received March 10,
2021, the Board does not have any record of receiving any
correspondence on your behalf from the Greene County
Public Defender’s office. Additionally, while you have the
right to counsel in the administrative appeal process, the
Board neither has the authority nor the obligation to appoint
counsel for you in this matter. Passaro v. Pennsylvania
Board of Probation and Parole, 424 A.2d 561 (Pa. Cmwlth.
1981). You will have to contact the public defender’s office
where you currently reside. Because you raise no other
issues in that correspondence, the Board will take no further
action on that request.
Next, the correspondence raising issues with the decision
revoking your parole recorded on February 8, 2021, were
neither received, nor were they submitted to prison officials
within the 30-day timeframe established in the Board’s
3
regulation. 37 Pa. Code § 73.1. As such, any submission
received after Monday March 22, 2021 cannot be accepted.
(C.R. at 96-97.) This counseled appeal followed.
Discussion
On appeal,1 Petitioner argues that he was denied his right to counsel during
the administrative appeal process where he requested the assistance of counsel within
the 30-day appeal period following issuance of the Decision. (Petitioner’s Br. at 9, 17-
22.)
It is well settled that “indigent parolees are entitled to the assistance of
counsel both at parole revocation hearings and in the prosecution of subsequent appeals
as of right.” Mesko, 245 A.3d at 1180; see also Section 6(a)(10) of the Public Defender
Act,2 16 P.S. § 9960.6(a)(10). However, “it is also well-settled that the Board is not
obligated to provide counsel to parolees nor does it have the power to appoint counsel
for indigent parolees.” O’Hara v. Pennsylvania Board of Probation & Parole, 487
A.2d 90, 95 (Pa. Cmwlth. 1985). Accordingly, a parolee must request that legal counsel
become involved and “the Board has no duty or responsibility to appoint counsel for
indigents appearing before it.” Mesko, 245 A.3d at 1180 (quoting Passaro, 424 A.2d
at 564). Consistent with these principles, the Board notifies parolees in its decisions
and administrative remedies forms of their right to counsel, that counsel may be
available from the county public defender’s office at no cost to them if they are
indigent, and that they must submit any requests for representation directly to that
office. Id.
1
Our standard of review in parole revocation cases is limited to determining whether
necessary findings are supported by substantial evidence, whether an error of law was committed, or
whether constitutional rights of the parolee were violated. Mesko v. Pennsylvania Board of Probation
& Parole, 245 A.3d 1174, 1179 (Pa. Cmwlth. 2021).
2
Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. §§ 9960.1–9960.13.
4
Here, at the outset of the parole revocation proceedings, Petitioner
expressly waived his right to counsel and to a hearing. He admitted to both the new
criminal offenses and the technical violation forming the basis for his recommitment.
In its Decision, the Board advised Petitioner of his rights to appeal and to be represented
by counsel during any appeal process. It also informed him that while he may be
entitled to representation at no cost to him, he must pursue this route directly with the
local public defender’s office. Although Petitioner sent a letter to the Board within the
appeal period inquiring whether an appeal had been filed on his behalf and claiming
that he had contacted the public defender’s office to no avail, the Board had no record
of receiving any correspondence from the public defender’s office relating to him.
Under these circumstances, in view of the record, we find that the Board
respected Petitioner’s right to counsel and provided him with ample notice that he was
responsible for securing any such representation if he chose to pursue an appeal. The
Board lacked the authority to appoint counsel for him and was under no obligation to
provide him with representation. We therefore conclude that Petitioner was not denied
his right to counsel during the administrative appeal process, and his sole issue on
appeal is meritless.
________________________________
PATRICIA A. McCULLOUGH, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donnelle Vest, :
Petitioner :
: No. 189 C.D. 2022
v. :
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 20th day of February, 2024, the Pennsylvania Parole
Board’s February 3, 2022 Order is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge