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HENDERSON v. BOARD PROBATION AND PAROLE (03/16/72)

decided: March 16, 1972.

HENDERSON
v.
BOARD OF PROBATION AND PAROLE



Original jurisdiction.

COUNSEL

Richard C. Seamans, Voluntary Defender, for petitioner.

Salvatore J. Cucinotta, Deputy Attorney General, with him Leonard Packel, Deputy Attorney General, and J. Shane Creamer, Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers.

Author: Per Curiam

[5 Pa. Commw. 8 Page 9]

Plaintiff, Ulysses Henderson, was sentenced on criminal charges in Allegheny County to a term of four to ten years beginning in 1950. He was granted parole after serving his minimum sentence in 1954. In 1956, Henderson was arrested on new criminal charges, sentenced to serve a term of one and one-half to ten years, and was entered to serve this new sentence before completing the unexpired portion of his first sentence.

Parole was granted as to the second sentence after he had served the minimum and Henderson was immediately recommitted to serve the balance of nearly six years remaining on his first sentence as a convicted parole violator.

In 1961, Henderson was reparoled as to the first sentence and continued in good standing until August

[5 Pa. Commw. 8 Page 101965]

when he was again arrested on new criminal charges. This arrest resulted in conviction and a third sentence for a term of five to ten years. The Board of Probation and Parole reclassified Henderson as a convicted parole violator as to the second sentence. In 1969 he was reparoled and reentered to begin serving the third sentence.

In June 1971, Henderson instituted the subject action in mandamus to compel the defendant-Board to recompute his remaining sentence or sentences to credit him with the time spent on parole in good standing against such sentence or sentences. The Board filed an answer denying plaintiff's legal conclusions to which plaintiff filed a reply asserting a minor factual matter not germane to the disposition of the central legal issues in this case. Subsequently, defendant filed a motion for judgment on the pleadings alleging that plaintiff has failed to state a claim upon which relief can be granted.

Plaintiff premises his request for relief on three arguments, two of which may be disposed of without lengthy discussion because this Court has ruled in several recent decisions that these arguments are without merit.

First, plaintiff argues that the denial of credit against sentence for that period spent on parole in good standing prior to arrest and conviction on new charges constitutes a denial of equal protection and due process as well as a violation of the double jeopardy clause under the United States Constitution. He contends that because technical parole violators are given credit against sentence for time spent on parole in good standing, that under considerations of equal protection, convicted parole violators must be ...


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