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COMMONWEALTH PENNSYLVANIA v. WILLIAM R. PARKER (12/15/76)

decided: December 15, 1976.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
WILLIAM R. PARKER, APPELLANT



No. 387 April Term, 1976 Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. 7307589 December Term, 1973.

COUNSEL

John J. Dean, John H. Corbett, Jr., Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, Asst. Dist. Attys., Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Cercone

[ 244 Pa. Super. Page 115]

The instant appeal arises from the revocation of appellant's parole following a Gagnon II hearing in the court below. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See also Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973). Appellant argues that the hearing was not held "as speedily as possible," and therefore the court violated the mandates of Pa.R.Crim.P. 1409. The facts are as follows:

As a result of a plea of guilty to a robbery charge on February 13, 1974, appellant was sentenced to six to twenty-three months in prison. After serving sixty days of that sentence, appellant was paroled for the balance of his term, which was to expire on January 10, 1976.

In October, 1974, while on parole, appellant was arrested as a result of charges that he was a leader of an auto larceny ring that included children. While awaiting trial on the October offenses, and while still on parole, appellant was again arrested in April, 1975 for similar theft offenses. He was convicted on the charges arising from the October offenses, on April 11, 1975, and sentencing was deferred pending a pre-sentence report. On July 1, 1975, appellant pleaded guilty to the charges arising from the April offenses, and a sentence of 11 1/2 to 23 months was immediately imposed. Thereafter, sentence was suspended on the outstanding October charges.

[ 244 Pa. Super. Page 116]

When appellant's parole officer learned of the April and July convictions, he prepared a report on appellant's status for his supervisor. The report was submitted on August 8, 1975. Principally because of the court's summer vacation, the supervisor, whose duty it was to schedule revocation hearings with the court, was unable to arrange a meeting with the appropriate judge until October 7, 1975. Shortly after that meeting a revocation hearing date was set for November 4, 1975. (The lower court judge, himself, stated that this was the earliest possible date for the hearing.) The hearing was conducted at that time and appellant's parole was revoked.

Appellant now claims that the delay of four months between his guilty plea and sentence on July 1, 1975, and the parole revocation hearing on November 4, 1975, violated the rules of criminal procedure. A fortiori, appellant argues, the delay of approximately eight months between the time he was arrested on the April offenses, and when his parole was revoked therefor in November, was impermissible.

Pa.R.Crim.P. 1409 provides as follows:

"Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that ...


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