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RICHARD A. PYATT v. COMMONWEALTH PENNSYLVANIA (06/17/77)

decided: June 17, 1977.

RICHARD A. PYATT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of Richard A. Pyatt v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Richard A. Pyatt, 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. Opinion by Judge Rogers.

Author: Rogers

[ 30 Pa. Commw. Page 581]

Richard A. Pyatt has filed a petition for review in the nature of mandamus asking us to review the action of the Pennsylvania Board of Probation and Parole revoking his parole. Both the petitioner and the Board have filed motions for summary judgment. We grant the Board's motion.

[ 30 Pa. Commw. Page 582]

On August 11, 1969, Pyatt was sentenced in the Court of Common Pleas of Monroe County to a term of imprisonment from 3 years and 6 months to 7 years for the offense of burglary, with an effective date of January 30, 1969 and a maximum date of January 30, 1976. He was paroled on July 30, 1972. On May 7, 1975, while still on parole, he was arrested by Monroe County authorities on a charge of recklessly endangering another person, a misdemeanor of the second degree. On July 16, 1975, petitioner was arrested on charges of technical parole violations. After a hearing conducted by a representative of the Board addressed both to the charges of technical parole violations and the new criminal charges, Pyatt was released and continued on parole under close supervision pending disposition of the outstanding charges.

On April 9, 1976, a Monroe County jury found Pyatt guilty of recklessly endangering another person and he was later sentenced to a term of imprisonment of from 3 months to 6 months, effective June 11, 1976. Petitioner was arrested on a parole board warrant on May 19, 1976, a date two days after the Board became aware of the new criminal conviction. The Board scheduled a revocation hearing on the basis of new conviction for June 2, 1976; the hearing was continued at the request of petitioner's counsel; and it was finally conducted on June 15, 1976. On June 30, 1976, the Board took action to recommit the petitioner on the original sentence as a convicted parole violator when he was available.

Pyatt first says that because his new conviction was of a misdemeanor, and not a felony, the Board had no authority to recommit him as a convicted parole violator. Section 21.1(a) of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a(a), provides that a parolee may be recommitted on his original sentence if he "commits [and is convicted of] any

[ 30 Pa. Commw. Page 583]

    crime punishable by imprisonment. . . ." The Crimes Code, 18 Pa. C.S. § 2705, provides that the crime of recklessly endangering another person is a misdemeanor of the second degree. Misdemeanors of the second degree are punishable by terms of imprisonment as long as 2 years. 18 Pa. C.S. § 1104.

The petitioner next says that the Board was without authority to revoke his parole as a convicted parole violator and to recommit him on the original sentence after January 30, 1976, the maximum date of his original sentence. While petitioner's conviction of the new offense did not occur until after January 30, 1976, he committed the crime on or before May 7, 1975 while he was on parole. We have repeatedly held that the Board may recommit and recompute the sentence of a parolee who commits a crime while on parole although he is not convicted and his parole not revoked, until after the maximum date of the original sentence.*fn1 Kuykendall v. Pennsylvania Board of Probation and Parole, 26 Pa. Commonwealth Ct. 234, 363 A.2d 866 (1976); Choice v. ...


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