SANTIAGO v. PA. BD. of PROB. PAROLE, 96 Pa. Commw. 51 (1986)

506 A.2d 517

Commonwealth Court of Pennsylvania.
March 19, 1986.

Parole — Revocation — Counsel — Frivolous appeal — Ineffective counsel — Withdrawal — Substitute counsel.

1. Once counsel in a parole revocation appeal has concluded after a full examination of the record that the appeal is wholly frivolous, it is the responsibility of the Commonwealth Court of Pennsylvania to make a full examination of the proceedings and make an independent judgment of whether the appeal is wholly frivolous. [56]

2. Counsel is not ineffective and does not act contrary to the best interests of the client when, after a conscientious review of the record, counsel correctly determines that the parole revocation appeal is wholly frivolous and seeks leave of court to withdraw; once counsel has determined that a matter is wholly frivolous, counsel must communicate that conclusion to the client with a request to discontinue the matter, and, if the client fails or refuses to do so, to seek leave to withdraw. [58]

3. In a parole revocation appeal, the inmate is not entitled to substitute counsel at public expense once appointed counsel has withdrawn after concluding correctly that the appeal is wholly frivolous. [58]

Submitted on briefs January 9, 1986, to Judges CRAIG and PALLADINO, and Senior Judge BARBIERE, sitting as a panel of three.

Appeal, No. 1448 C.D. 1984, from the Order of the Pennsylvania Board of Probation and Parole in the case of Daniel Burgos Santiago, Parole No. 2850-P, dated April 3, 1984 and July 3, 1984.

Parolee recommitted as convicted parole violator. Parolee appealed to the Pennsylvania Board of Probation and Parole for administrative relief. Appeal denied. Parolee appealed to the Commonwealth Court of Pennsylvania. Counsel for parolee filed petition to withdraw.

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Held: Leave to withdraw as counsel granted. Order affirmed.

Daniel Burgos Santiago, petitioner, for himself.

Wendie Ziegler, Assistant Public Defender, for respondent.

OPINION BY SENIOR JUDGE BARBIERE, March 19, 1986:

Daniel Burgos Santiago has petitioned for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board parole revocation order. That revocation order revoked his parole and returned him to prison as a convicted parole violator to serve fifteen months on backtime, when available. Since Santiago was incarcerated at the State Correctional Institution at Rockview (SCI-Rockview) when he filed his pro se petition for review, this Court appointed the Public Defender of Centre County to represent him in his appeal pursuant to our holding i Passaro v. Pennsylvania Board of Probation and Parole, 56 Pa. Commw. 32, 424 A.2d 561 (1981).[1] Santiago’s counsel has since filed a

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petition to withdraw and an Anders[2] brief on the grounds that the appeal is wholly frivolous. Santiago has answered counsel’s motion to withdraw and filed a pro se brief in which he raises those points which he considers worthy of merit. It is counsel’s petition to withdraw which is before the Court at this time.

The following facts are pertinent to our disposition of this matter. Santiago was initially sentenced in Lancaster County Common Pleas Court on June 13, 1980 to a term of three to six years following his conviction for the offense of Robbery.[3] That sentence was modified by Judge BUCHER on June 27, 1980 to time served to four years, eleven months, and twenty-nine days. The original maximum term expiration date of that sentence was January 14, 1984, Santiago being given credit for one-year, four months, and twenty-eight days prior commitment time.[4] He was paroled from the Lancaster County Prison on December 22, 1980.[5]

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Santiago was arrested by Lancaster County Police on December 28, 1980 and charged with Burglary.[6] He was sentenced to a term of one to three years following his plea of guilty to that offense. On November 9, 1981, the was given a Full Board Revocation Hearing at which time he waived counsel representation. On November 12, 1981, the Board revoked his parole and ordered that he be returned to prison as a convicted parole violator to serve fifteen months on backtime, when available.[7] He was transferred on December 28, 1983 from Lancaster County Prison to SCI-Rockview. On that date he completed serving the maximum term of his Burglary sentence and became available to the Board to serve the backtime imposed by its order of November 12, 1981. On January 10, 1984, the Board entered an order in which it reaffirmed its revocation order of November 12, 1981 and set a tentative re-parole date of March 28, 1985 and recomputed the maximum term of his Robbery sentence pursuant to Section 21.1(a) of the Act of August 6, 1941 (Parole Act), P.L. 861, added by the Act of August 24, 1951, P.L. 1401, as amended,

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61 P. S. § 331.21a(a), to January 20, 1987.[8] Santiago pursued both a pro se and a counseled administrative appeal with the Board pursuant to 37 Pa. Code § 71.5(h) which were subsequently denied and this appeal followed.

In his appeal to this Court, Santiago and his appointed appellate counsel raise two contentions: (1) that the Board is confining him illegally in that he has completed the maximum terms of both his Robbery and Burglary sentences; and (2) that he was improperly transferred from Lancaster County Prison to SCI-Rockview. Appointed appellate counsel filed an Amended Petition for Review and subsequently filed a motion to withdraw as well as an Anders brief, both of which have been served upon Santiago. Santiago has since filed a pro se brief in which he challenges the conclusions of his appointed counsel that his appeal is frivolous and requests that this Court appoint him new counsel. Santiago has also claimed that his appointed counsel is ineffective and requests appointment of substitute counsel.

Before ruling on appointed counsel’s motion to withdraw, we must first determine whether counsel has complied with the threshhold requirements which we set forth in Craig v. Pennsylvania Board of Probation and Parole, 93 Pa. Commw. 586, 502 A.2d 758 (1985), for properly presenting a motion to withdraw to this Court for disposition. In Craig, we determined that in order for appointed counsel to be granted leave to withdraw from representing an indigent parolee in an appeal of a parole revocation order, counsel must:

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(1) Notify the parolee of his or her request to withdraw;
(2) Furnish the parolee with a copy of his or her Anders brief;
(3) Advise the parolee of his or her right to retain new counsel or raise any points which he or she may deem worthy of consideration in a pro se brief; and
(4) Allow the parolee thirty days in which to respond to counsel’s motion to withdraw either by filing a pro se brief or procuring substitute counsel.

Id. at ___, 502 A.2d 760. See also, Scott v. Jacobs, 76 Pa. Commw. 100, 463 A.2d 110 (1983). Our review of the record satisfies us that counsel has complied with those requirements and that the matter is ripe for our consideration. We also note that Santiago has filed a pro se brief in which he raises a number of points which he contends were either ignored or overlooked by counsel.

Once counsel has concluded, after a full examination of the record, that an appeal is wholly frivolous, it becomes our responsibility as the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous Craig, 93 Pa. Commw. at 593, 502 A.2d at 761. Our review of the record in this matter compels us to concur with counsel’s judgment that the appeal is wholly frivolous and that under no conceivable legal argument or theory would Santiago be entitled to the relief he seeks.[9] Additionally, we have

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determined that the brief submitted by appointed counsel satisfies the mandates of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and Craig.

Having found from our independent study of the record that the appeal is wholly frivolous, we grant counsel’s request to withdraw. We must now turn our attention to Santiago’s request for appointment of substitute legal counsel.

There is no question that an indigent prisoner is entitled to free legal counsel to assist him in appealing a parole revocation order of the Board. See Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021
(1980), cert. denied, 450 U.S. 1050 (1981); Brewer v. Pennsylvania Board of Probation and Parole, 90 Pa. Commw. 75, 494 A.2d 36 (1985). Having appointed counsel who has conscientiously searched the record and has concluded that the case is wholly frivolous and entirely without merit, we must now determine whether an indigent prisoner has a right to free substitute legal counsel to review the work of the first appointed counsel, in essence, a legal “second opinion.” Our review of the case law convinces us that he does not. I LaCourt v. Pennsylvania Board

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of Probation and Parole, 87 Pa. Commw. 384, 488 A.2d 70 (1985), we noted that:

[W]hile an indigent parolee facing revocation of his or her parole is entitled to appointed counsel to represent him before the Board, . . . . an indigent parolee does not have the right to appointed counsel of his or her choice. . . . A parolee’s right to counsel guarantees only that an indigent parolee be provided with counsel who is competent and who represents his best interests in an effective manner.

Id. at 390, 488 A.2d at 74-75. Counsel is not ineffective or acting contrary to the best interests of his or her client when, after a conscientious review of the record, counsel correctly determines that the case is wholly frivolous and seeks leave of court to withdraw. Indeed, once counsel has determined that a matter is wholly frivolous, counsel is duty bound to communicate that conclusion to the client with a request to discontinue the appeal and, if the client fails or refuses to do so, to seek leave to withdraw. Code of Professional Responsibility, DR 7-102(A)(2) and EC 7-4; see also, Polk County v. Dodson, 454 U.S. 312, 323 (1981). In addition, our Supreme Court concluded that once a reviewing court is satisfied with counsel’s assessment of the appeal as wholly frivolous, counsel has fully discharged his responsibility to the prisoner and can do no more. McClendon, 495 Pa. at 473-474, 434 A.2d at 1187. Therefore, since this Court agrees with Santiago’s appointed appellate counsel’s conclusion that his appeal is wholly frivolous, she has fully discharged her duty and responsibility to him and he is not entitled to appointment of substitute counsel at public expense.

Because of our conclusion that the appeal is entirely without merit and there can be no basis for the relief

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sought, we also affirm the Board’s order which denied Santiago administrative relief.

ORDER
NOW, March 19, 1986, after an extensive and independent examination of the entire record, the petition of Wendie Ziegler, Esquire, for leave to withdraw as counsel for petitioner is hereby granted and counsel’s entry of appearance on behalf of petitioner is ordered stricken. In that the Court’s independent examination of the record has shown this appeal to be wholly frivolous, the order of the Pennsylvania Board of Probation and Parole at Parole No. 2850-P, dated April 3, 1984, and July 3, 1984, which denied administrative relief to Daniel Burgos Santiago, are hereby affirmed.