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ROBERT LEE CHOICE v. PENNSYLVANIA BOARD PROBATION AND PAROLE (05/11/76)

decided: May 11, 1976.

ROBERT LEE CHOICE, PLAINTIFF
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, DEFENDANT



Original jurisdiction in case of Commonwealth of Pennsylvania ex rel. Robert Lee Choice v. Pennsylvania Board of Probation and Parole.

COUNSEL

Robert Lee Choice, plaintiff, for himself.

Robert A. Greevy, Assistant Attorney General, with him Robert P. Kane, Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by President Judge Bowman.

Author: Bowman

[ 24 Pa. Commw. Page 439]

This case poses the question of whether the Pennsylvania Board of Probation and Parole (defendant) may lawfully and constitutionally extend the maximum sentence of a parolee who committed a crime while on parole, but was not convicted until after the expiration of the court-imposed maximum sentence. We hold that it can.

Robert Lee Choice (plaintiff) instituted his action by a complaint in mandamus filed with the Supreme Court of Pennsylvania. Defendant raised preliminary objections to the Supreme Court's jurisdiction and a demurrer. The Supreme Court by Order dated November 24, 1975, transferred the matter to this Court, and it is now before us on defendant's demurrer.

Plaintiff alleges his release from the Rockview State Correctional Institution on October 10, 1970, after serving

[ 24 Pa. Commw. Page 440]

    one year, two months of a one to five year sentence. On August 25, 1974, plaintiff was arrested (while still on parole) on new criminal charges, and defendant lodged a detainer against him pending the outcome of the new criminal charges. This detainer was lifted on December 13, 1974, the date of the expiration of his original maximum sentence. Shortly thereafter, on January 14, 1975, plaintiff was convicted on the new criminal charges, and defendant lodged another detainer against plaintiff. After hearing, plaintiff was recommitted as a parole violator, and the maximum term of his original sentence was extended.

This complaint followed questioning defendant's "jurisdiction" to extend plaintiff's sentence after expiration of the original sentence; the complaint averred that such action subjected plaintiff to double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

In addition, plaintiff raised the argument that since the detainer had been lifted, defendant could not properly lodge another detainer against him subsequent to conviction. Although the precise legal significance of this assertion is unclear, we will deal with this point later in this opinion.

We here sustain defendant's preliminary objections as mandated by our decision in Mitchell v. Board of Probation & Parole, 18 Pa. Commonwealth Ct. 69, 335 A.2d 856 (1975). There we held that Section 21.1 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. ยง 331.21a, on its face gives defendant the authority to recommit a parolee who perpetrated another crime while on parole, although the ...


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