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GERALD A. WASHINGTON v. FRED W. JACOBS (06/02/78)

decided: June 2, 1978.

GERALD A. WASHINGTON, PETITIONER
v.
FRED W. JACOBS, CHAIRMAN OF THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE AND WILLIAM B. ROBINSON, COMMISSIONER OF PENNSYLVANIA BUREAU OF CORRECTIONS AND JULIUS T. CUYLER, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GRATERFORD, PENNSYLVANIA AND ANTHONY J. SEPELA, RECORDS OFFICER FOR BUREAU OF CORRECTION OF THE STATE CORRECTIONAL INSTITUTION LOCATED AT GRATERFORD, PENNSYLVANIA, RESPONDENTS



Original jurisdiction in case of Gerald A. Washington v. Fred W. Jacobs, Chairman of the Pennsylvania Board of Probation and Parole; William B. Robinson, Commissioner of Pennsylvania Bureau of Corrections; Julius T. Cuyler, Superintendent of the State Correctional Institution at Graterford, Pennsylvania; and Anthony J. Sepela, Records Officer for Bureau of Correction of the State Correctional Institution at Graterford, Pennsylvania.

COUNSEL

Gerald A. Washington, petitioner, for himself.

Robert A. Greevy, Assistant Attorney General, with him Robert P. Kane, Attorney General, for respondents.

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

Author: Disalle

[ 35 Pa. Commw. Page 604]

Gerald A. Washington (Petitioner) filed a petition for review of the action of the Pennsylvania Board of Probation and Parole (Board) which extended Petitioner's original maximum sentence date. The Board filed an answer and new matter and the Petitioner replied to the new matter. Both parties filed motions for summary judgment which are now before us for disposition.

The facts are as follows: On October 25, 1972, Petitioner was sentenced to a term of two to ten years for the offense of voluntary manslaughter. The effective

[ 35 Pa. Commw. Page 605]

    date of his sentence was October 16, 1970, with a minimum date of October 16, 1972, and a maximum date of October 16, 1980. On February 9, 1973, Petitioner was paroled subject to the standard limitations upon his activities. On March 15, 1973, Petitioner was arrested on robbery and other charges. On March 16, 1973, the Board filed a parole violation warrant against Petitioner, and a detention hearing was scheduled on March 27, 1973, but due to a gunshot wound Petitioner was unavailable. The hearing was rescheduled for April 3, 1973. Again, Petitioner was unavailable because he had been transferred to another institution to answer the robbery charges. On May 14, 1973, the detention hearing was held.

Petitioner maintains that his rights were violated because he did not have his first level hearing within 15 days after the Board's warrant was issued. The argument is untenable. The Board attempted to have the detention hearing within 15 days but was unable to do so because of the Petitioner's unavailability. This first level hearing was held within a reasonable period of time. The Board's rule providing for a preliminary hearing within 15 days after the filing of the warrant or detainer did not go into effect until March 1, 1977. Further, the 15 day rule applies only where there has been no arrest for a new crime.

Following the preliminary detention hearing, it was ordered that Petitioner be detained pending disposition of the criminal charges lodged against him on March 15, 1973. However, on August 19, 1973, Petitioner escaped from the penal institution where he was awaiting trial on the robbery charges. On August 5, 1974, Petitioner was again arrested on new criminal charges. On August 29, 1974, the Board filed a parole violation warrant and the Petitioner had another detention hearing on September 10, 1974.

[ 35 Pa. Commw. Page 606]

On October 31, 1975, Petitioner was found guilty of the March 15, 1973, charges, and the Board then scheduled a full revocation hearing for February 5, 1976. The Petitioner appeared at the hearing and requested a continuance in order to secure counsel. On April 8, 1976, the revocation hearing was held and Petitioner was recommitted as a convicted parole violator. On September 15, 1977, Petitioner was sentenced to eight to sixteen years on his conviction for the robbery charges of March 15, 1973. On September 29, 1977, the Board recorded its action to recommit Petitioner as a convicted parole violator. As a convicted ...


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