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COMMONWEALTH PENNSYLVANIA v. JERRY HOLMES (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JERRY HOLMES, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal, at No. 320 September Term, 1970.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

William T. Nicholas, District Attorney, Norristown, for appellee.

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

Author: Price

[ 248 Pa. Super. Page 554]

Appellant Jerry Holmes pled guilty to burglary and criminal conspiracy on November 30, 1971. He was sentenced to a term of two to twenty-three months imprisonment in the Montgomery County Prison and a consecutive probationary period of one year. After granting credit for time served from September 19, 1971, the lower court noted that appellant was eligible for parole and recommended release by the county probationary officials as soon as possible. On December 3, 1971, appellant was paroled for the remaining twenty-one months of his sentence.

On May 11, 1973, appellant was arrested in Philadelphia County for murder. The Montgomery County Adult Probation Office learned of this arrest and, in August of 1973, issued a bench warrant. Shortly thereafter, the original parole period expired. On April 24, 1974, appellant pled guilty to murder and was sentenced to nine to twenty years imprisonment. The bench warrant was lodged as a detainer with the officials at Graterford State Penitentiary on May

[ 248 Pa. Super. Page 55515]

, 1975. A Gagnon I pre-revocation hearing was held on January 23, 1976. Appellant's parole was revoked after a Gagnon II revocation hearing held on February 27, 1976, and he was sentenced to serve the twenty-one months remaining on his original sentence.*fn1

Appellant now contends that his due process rights were denied because his parole was not revoked within a reasonable time of the violation.*fn2 We agree and, therefore, must reverse the lower court's order revoking parole.

The United States Supreme Court, in its recent decision in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), held that postponing a parole revocation hearing until after the parolee has completed the sentence for the conviction which constituted the parole violation does not offend the principles of due process set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

"Petitioner's . . . confinement and consequent loss derives not in any sense from the outstanding parole violation warrant, but from his two 1971 homicide convictions. Issuance of the warrant and notice of that fact to the institution of confinement did no more than express the Board's intent to defer consideration of parole revocation to a later time. . . . With only a prospect of future incarceration which is far from certain we cannot say that the parole violation warrant has any present or inevitable effect upon the liberty interests which Morrissey sought to protect. Indeed, in holding that '[t]he revocation hearing ...


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