John H. Lewis, Jr., with him Morgan, Lewis & Bockius, for plaintiff.
Salvatore Cucinotta, Assistant Attorney General, with him Leonard Packel, Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendants.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Judge Manderino did not participate in the decision. Opinion by Judge Crumlish, Jr.
[4 Pa. Commw. 152 Page 153]
This action in mandamus questions the constitutional authority of the Pennsylvania Board of Probation and Parole to recommit the petitioner as a convicted parole violator to serve that portion of his original court imposed maximum sentence remaining when he was first paroled. Petitioner also questions the procedure used by the Board in revoking his parole.
On May 29, 1961 petitioner was sentenced to five to ten years as a result of convictions on various charges. The sentence was effective March 8, 1961 making petitioner's minimum and maximum expiration dates March 8, 1966 and March 8, 1971. He was paroled on March 8, 1966 but subsequently arrested on March 1, 1967 on another charge. Petitioner was convicted on June 5, 1967 and sentenced to one to two years on that charge. As a result of this conviction a hearing was held before the Board and the petitioner was recommitted
[4 Pa. Commw. 152 Page 154]
as a convicted parole violator on July 12, 1967 and the maximum expiration date extended to June 5, 1972. He was given no credit for the time spent on parole under the supervision of the Board.
The petitioner contends that the refusal of the Board to credit him for the time spent on parole is unconstitutional; that the hearing provided him was defective in that he was not afforded the assistance of counsel; and that the action of the Board was statutorily improper because the hearing was attended by only one member of the Board.
The constitutionality of exactly this recommitment situation has been recently upheld by this Court in Williams v. Board of Probation and Parole, 3 Pa. Commonwealth Ct. 633 (1971). The facts in that case are not effectively distinguishable from this factual setting and, on the basis of the reasoning in President Judge Bowman's opinion, we hold that the Board is not constitutionally required to "credit" petitioner for the time spent by him at liberty on parole. As was stated by Judge Joseph Lord, III, of the Federal District Court for the Eastern District of Pennsylvania, in United States ex rel. Heacock v. Myers, 251 F. Supp. 773, 774 (E.D. Pa. 1966): "Certainly a state is not precluded by the Federal Constitution from giving paroled convicts an added inducement to 'go straight' by retaining the ability to recommit them for crimes they commit while on parole. See Zerbst v. Kidwell, 304 U.S. 359, 363, 58 S. Ct. 872, 82 L. Ed. 1399 (1938). No constitutional question is involved in the Parole Board's failure to give relator credit for time on parole and its adjustment of the expiration date of his new maximum. Miller v. Gladden, 228 F. Supp. 802 (D. Or. 1964), aff'd, 341 F. 2d 942 (C.A. 9, 1965); Woods v. Steiner, 207 F. Supp. 945 (D. Md. 1962). See also United States ex rel. Klorber v. Myers, 237 F. Supp. 682
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(E.D. Pa. 1965); United States ex rel. Horne v. Pennsylvania Bd. of Parole, 234 F. ...