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NORMAN L. JOHNSTON v. PENNSYLVANIA BOARD PROBATION AND PAROLE (03/01/78)

decided: March 1, 1978.

NORMAN L. JOHNSTON, PLAINTIFF
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, DEFENDANT



Original jurisdiction in case of Norman L. Johnston v. Pennsylvania Board of Probation and Parole.

COUNSEL

W. Robert Landis, for plaintiff.

Robert A. Greevy, Assistant Attorney General, and Robert P. Kane, Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Rogers.

Author: Rogers

[ 34 Pa. Commw. Page 114]

Norman L. Johnston has filed a complaint in mandamus and a petition for writ of habeas corpus challenging his detention as a parole violator by the Pennsylvania Board of Probation and Parole. The Board has filed a motion for summary judgment which we grant.

Johnston was sentenced to a term of imprisonment on charges of prison breach, assault and battery and receiving stolen goods. He was released on parole and while still on parole was arrested on November 3, 1975 by the Pennsylvania State Police in Chester

[ 34 Pa. Commw. Page 115]

County on charges of burglary, theft, receiving stolen property and criminal conspiracy. On November 12, 1975, the petitioner was given a preliminary hearing before a District Justice who concluded that a prima facie case was made out and who fixed bail. Johnston was released that same day after posting bail.

On December 19, 1975, Johnston was arrested by an agent of the Board for violating conditions 2 and 3 of his parole which are as follows:

2. You will live at Thompson Road in Kennett Square and may not change your residence without written permission.

3. You will comply with all Municipal, County, State and federal Criminal laws, and abide by any written instructions of the Pennsylvania Board of Probation and Parole or your Parole Agent. You will immediately notify your Parole Agent of any arrest by law enforcement agencies.

On or about December 24, 1975, Johnston filed with this Court a complaint in mandamus and a petition for writ of habeas corpus. He alleged in both pleadings that he had been arrested for the technical parole violation of changing his residence without notice to and permission of the Board. He complained that he was being detained on this technical charge without being afforded the preliminary hearing required by Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973). It was conceded that no preliminary hearing had been afforded so that Johnston was ordered to be released and the Board directed to conduct a preliminary hearing on December 26, 1975. At the hearing, the Board considered the technical parole ...


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