Prebella v. Pennsylvania Board of Probation and Parole

In Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257 (Pa. Cmwlth. 2008), the Court expressly recognized a parolee may waive his right to a final violation hearing. The parolee in Prebella executed the waiver of violation hearing and admission form, and admitted he used cocaine in violation of the terms of his parole. The parolee also signed a notice of charges and hearings; waiver of counsel; waiver of preliminary hearing; and waiver of panel hearing. The Board subsequently recommitted the parolee to serve backtime, and the parolee sought administrative relief. He maintained a board agent coerced him into waiving his rights and promised him placement in a half-way back program if he admitted the parole violation. On appeal, the parolee asserted he waived his constitutional rights based on the agent's misrepresentations. Rejecting the parolee's claim the Board's waiver of violation hearing and admission form violated his right to due process, the Court stated at length: the Board's regulations specifically envision waivers by parolees accused of violations, including waiver of a violation hearing. See 37 Pa. Code 71.2(5) (right to preliminary hearing and right to counsel may be waived, parolee may waive right to have violation hearing before Board panel); 37 Pa. Code 71.2(7) (violations may be admitted, agreed to or stipulated); 37 Pa. code 71.2(9) (examiner shall initiate scheduling a violation hearing "if desired by the parolee or by the Board's representative to resolve remaining contested relevant facts") Further, and also contrary to the parolee's argument, Pennsylvania law clearly supports the type of waivers executed here. In order to effectuate a knowing and voluntary waiver in Parole Board cases, all that is required is for the Board to show that it followed its own regulations and provided the necessary information to the offender prior to the offender signing the written waiver form. See Roblyer v. Pa. Bd. of Prob. & Parole, 148 Pa. Commw. 107, 609 A.2d 884 (Pa. Cmwlth. 1992) (waiver of counsel); Wile, Pennsylvania Law of Probation and Parole, 13:25 (2d. ed. 2003). The waiver need not be effectuated in an "on the record colloquy." See Coades v. Pa. Bd. of Prob. & Parole, 84 Pa. Commw. 484, 480 A.2d 1298, 1305 (Pa. Cmwlth. 1984) (waiver of counsel). Rather, as here, execution of the Board's form is sufficient. See also Hill v. Pa. Bd. of Prob. & Parole, 89 Pa. Commw. 140, 492 A.2d 80 (Pa. Cmwlth. 1985) (waiver of counsel). Right to counsel in a state parole violation hearing is not based on either the state or federal constitutions, but rather on statutory law, case law and regulatory law. Worthington v. Pa. Bd. of Prob. & Parole, 784 A.2d 275 (Pa. Cmwlth. 2001). A parolee's waiver of counsel is deemed informed and voluntary if, as here, the parolee is informed of right to counsel, provided the name and address of the appropriate public defender, and gives his written statement that he has been fully advised of this right and waived it out of his own free will. Roblyer; Hill. There is no authority that each of multiple waiver forms must contain a provision waiving the right to counsel; there is no authority that a parolee must repeatedly waive the right to counsel; and there is no authority that an unconditional waiver of counsel is nevertheless implicitly limited in duration or breadth. Rather, a written waiver of counsel continues effective according to its terms until revoked by a parolee. A parolee "must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or if he did, that circumstances in mitigation suggests that the violation does not warrant revocation." Morrissey v. Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 33 L. Ed.2d 484 (1972). However, nothing in Morrissey prevents a parolee from waiving a violation hearing without first consulting counsel. A parole revocation hearing is not the equivalent of a "criminal prosecution in any sense." Id. at 489, 92 S. Ct. 2593. In addition, and also contrary to the parolee's contentions, the violation hearing waiver form here reflects the parolee voluntarily, knowingly and intelligently waived his right to a violation hearing and admitted the parole violations. ...Prebella, 942 A.2d at 261-62. In Prebella, the Court upheld the uncounseled written waivers of preliminary and violation hearings. Despite the parolee's later raised claims that he had been promised leniency to induce the waivers, the Court did not require an "on the record colloquy" to validate the choice to waive. Rather, the clear statements in the forms were sufficient to establish the validity of the waivers.