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RICHARD A. MITCHELL v. COMMONWEALTH PENNSYLVANIA (07/22/77)

decided: July 22, 1977.

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



Appeal from an Order of the Pennsylvania Board of Probation and Parole in case of In Re: Richard A. Mitchell, Parole No. 6995-G.

COUNSEL

Richard A. Mitchell, 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 President Judge Bowman.

Author: Bowman

[ 31 Pa. Commw. Page 245]

Richard A. Mitchell (petitioner) filed a "Petition for the Writ of Mandamus," which we have treated as a petition for review pursuant to the Pennsylvania Rules of Appellate Procedure. An answer on behalf of the Pennsylvania Board of Probation and Parole (Board), including new matter and the certificate of the Chairman of the Pennsylvania Board of Probation and Parole pursuant to Section 8 of the Act of August 6, 1941 (Act), P.L. 861, as amended, 61 P.S. ยง 331.8, was duly filed.

In response thereto, petitioner filed a "Traverse" in the nature of a reply to new matter and a motion for summary judgment. A cross motion for summary judgment was filed by the Board, which motions were ordered submitted on briefs. The pleadings being closed, and there being no genuine issue as to any material fact, this case is ripe for disposition by summary judgment. Pa. R.C.P. No. 1035.

The facts are as follows. On April 10, 1972, petitioner was sentenced to a term of two to five years for the offenses of burglary, larceny and receiving stolen goods.*fn1 An overlapping sentence for the offenses of receiving stolen goods, forgery and conspiracy of one and one-half to three years was handed down on February 7, 1973.*fn2

On May 18, 1974, petitioner was paroled from both sentences, subject to standard limitations upon his activities.

[ 31 Pa. Commw. Page 246]

Arrests followed on July 7, 1974, on charges of receiving stolen goods, and on July 15, 1974, on charges of burglary and theft by unlawful taking or disposition. A detention hearing conducted by the Board on September 5, 1974, resulted in petitioner being continued on parole pending disposition of the outstanding criminal charges.

On March 26, 1975, petitioner was convicted of the charges involved in the July 15, 1974 arrest, sentenced to two and one-half to five years, and released on bail pending appeal. On January 13, 1976, petitioner was convicted of corrupting the morals of a minor, criminal attempt, and criminal conspiracy, with sentencing deferred to an unspecified date.

On February 7, 1976, while on bail, petitioner was arrested for unauthorized use of a vehicle, possession of stolen credit cards, resisting arrest, speeding and reckless driving. Two days later, the Board issued its "warrant"*fn3 against petitioner, reciting the charges involved ...


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