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EARL WILLIAM KUYKENDALL v. PENNSYLVANIA BOARD PROBATION & PAROLE (09/07/76)

decided: September 7, 1976.

EARL WILLIAM KUYKENDALL, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION & PAROLE, RESPONDENT



Original jurisdiction in case of Earl William Kuykendall v. Pennsylvania Board of Probation & Parole.

COUNSEL

Earl Kuykendall, petitioner, for himself.

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

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision in this case. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.

Author: Bowman

[ 26 Pa. Commw. Page 235]

On December 26, 1975, Earl William Kuykendall (plaintiff) filed a complaint in mandamus in this Court against the Board of Probation and Parole (Board). The Board filed an answer with new matter and plaintiff then filed a reply to the new matter. Plaintiff seeks relief from what he terms an unlawful recomputation of his prison sentence, and credit for service of this allegedly unlawful recommittal against a subsequent conviction sentence. The matter is now before us on cross motions for judgment on the pleadings. Judgment on the pleadings is proper at this time, as the material facts are not in dispute. Commonwealth ex rel. Pittenger v. Leechburg Area School Board, 19 Pa. Commonwealth Ct. 140, 339 A.2d 149 (1975); Commonwealth ex rel. Dawson v. Board of Probation and Parole, 17 Pa. Commonwealth Ct. 550, 333 A.2d 796 (1975).

Plaintiff was convicted in 1968 in the Court of Common Pleas of Adams County for receiving stolen goods and given an indeterminate to five year sentence (original sentence); the maximum expiration date of said sentence was April 26, 1973 to be served at the State Correctional Institution at Camp Hill (Camp Hill). Plaintiff was paroled in 1969, but was recommitted as a convicted parole violator and his original sentence was extended to July 14, 1973. This particular extension of sentence is not in dispute.

[ 26 Pa. Commw. Page 236]

Plaintiff was released again on parole on July 21, 1971, however, on April 7, 1972, he was declared delinquent as of March 11, 1972, because his whereabouts were unknown to the Board. Plaintiff was not located until his arrest on new criminal charges on December 25, 1973. Plaintiff was convicted on February 13, 1974, on the new charges and was sentenced to serve one to two years (new sentence) at the State Correctional Institution at Huntingdon (Huntingdon).

After said conviction and a parole revocation hearing thereon, the Board recommitted plaintiff as a convicted parole violator. The result of this action was another recomputation of plaintiff's original sentence making the expiration date thereof February 6, 1976; this recomputation was based upon a denial of credit for time spent on parole from July 21, 1971, to the July 14, 1973, expiration date as mandated by Section 21.1(a) of the Act of August 6, 1941 (Parole Act), P.L. 861, as amended, 61 P.S. ยง 331.21a(a).

On November 20, 1974, plaintiff was paroled on his original sentence (expiring February 6, 1976) to begin serving his new sentence. He was then immediately released on bail incident to an appeal of this conviction; however, after revocation of said bail, the maximum date of his new sentence was recomputed to expire August 14, 1977, as measured by his time on bail.

Plaintiff seeks in this action a definitive determination of his right to be free from the custodial authority of the Board in light of the Board's extension of the expiration date of his original sentence. More precisely, plaintiff contends that even though he was delinquent on parole when arrested on December 25, 1973, and in fact had been for more than a year prior ...


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