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COMMONWEALTH PENNSYLVANIA EX REL. JAMES R. JOHNSTON v. PENNSYLVANIA BOARD PROBATION AND PAROLE (06/27/75)

decided: June 27, 1975.

COMMONWEALTH OF PENNSYLVANIA EX REL. JAMES R. JOHNSTON, PLAINTIFF,
v.
THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE, DEFENDANT



Original jurisdiction in case of Commonwealth of Pennsylvania ex rel. James R. Johnston v. The Pennsylvania Board of Probation and Parole.

COUNSEL

Simon B. John, with him Thomas P. Ruane, Jr., for plaintiff.

James C. Barnes, Jr., Deputy Attorney General, with him Robert A. Greevy, Assistant Attorney General, J. Andrew Smyser, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant.

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

Author: Bowman

[ 20 Pa. Commw. Page 70]

Plaintiff, Johnston, has filed a complaint in mandamus within our original jurisdiction to which the defendant, Pennsylvania Board of Probation and Parole, (Board), has filed preliminary objections. For the reasons hereafter stated, the Board's preliminary objections are sustained and plaintiff's complaint is dismissed.

For the limited purpose of considering defendant's preliminary objections in the nature of a demurrer, we must accept as true all well-pleaded averments in plaintiff's complaint. Bruhin v. Commonwealth, 14 Pa. Commonwealth Ct. 300, 320 A.2d 907 (1974). The facts are not in dispute, however, and we are solely concerned with a legal issue.

Plaintiff was arrested in October of 1968 and imprisoned on various charges, including burglary and larceny,

[ 20 Pa. Commw. Page 71]

    to which he pleaded guilty before Judge Feigus of the Court of Common Pleas of Fayette County. On February 25, 1969, plaintiff, who was eighteen years of age, was sentenced as a youthful offender by Judge Feigus, on the aforementioned changes, to the State Correctional Institution at Camp Hill for a maximum period of four (4) years to be computed from October 8, 1968. After serving a portion of that sentence, plaintiff was released on parole, but on September 25, 1973, he was again arrested for burglary. He was sentenced on the burglary charge on January 31, 1974, to a term of imprisonment of two (2) to five (5) years.

The Board, on February 13, 1974, notified plaintiff that pursuant to section 13 of the Act of April 28, 1887, P.L. 63, as amended, 61 P.S. § 486 (Act), the date of termination of the original sentence imposed upon him on February 25, 1969, was extended from October 14, 1972 to October 14, 1974,*fn1 thereby extending that sentence to six (6) years from the four year maximum ordered by Judge Feigus. Because of the extension of his sentence by the Board, plaintiff is ineligible for parole on his most recent conviction. Hence this action is not moot.

Plaintiff alleges that the Board, in changing his maximum sentence pursuant to the Act, violates the equal protection clause of the 14th Amendment of the United States Constitution. The Act provides in section 4, 61 P.S. § 483, that a court may sentence an individual to Camp Hill if he is between the ages of fifteen and twenty-one, but, pursuant to section 5 of the Act, 61 P.S. § 484, if the court elects to do so, the sentence imposed must be in conformity with the Act. The Act further provides in sections 6 and 13, 61 P.S. §§ 485, ...


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