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JOHN THOMAS ALGER v. ORLANDO S. ZACCAGNI (07/17/78)

decided: July 17, 1978.

JOHN THOMAS ALGER, PETITIONER
v.
ORLANDO S. ZACCAGNI, PAROLE AGENT II, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENTS



Original jurisdiction in case of John Thomas Alger v. Orlando S. Zaccagni, Parole Agent II, Pennsylvania Board of Probation and Parole.

COUNSEL

John Thomas Alger, 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 Wilkinson, Jr.

Author: Wilkinson

[ 36 Pa. Commw. Page 549]

Petitioner has filed a complaint in mandamus challenging the decision of the respondent Pennsylvania Board of Probation and Parole (Board) to recommit him as a convicted parole violator. The Board has filed a motion for judgment on the pleadings. We will grant the motion.

Petitioner was sentenced on September 13, 1971 to a term of one to five years for prison breach, and to a

[ 36 Pa. Commw. Page 550]

    concurrent term of two and one-half to seven years for the offenses of prison breach, assault and battery. Petitioner's minimum sentence expired April 11, 1976, and on March 10, 1976, the Board took action directed toward paroling the petitioner on April 11, 1976, "to an approved plan." Petitioner was in fact paroled on June 5, 1976.

Petitioner was arrested July 25, 1976, on a number of charges, namely two counts of burglary, receiving stolen goods, theft and criminal attempt. Two days later on July 27, 1976, a parole violation warrant was filed. Petitioner received a preliminary hearing relative to the criminal charges on August 10, 1976, and further received a preliminary detention hearing on August 12, 1976. The Board then elected to detain petitioner pending disposition of the charges.

On November 9, 1976, petitioner was found guilty of theft and burglary, and sentencing was deferred. On November 24, 1976, petitioner was charged with possession of a controlled substance. Petitioner was found guilty on this charge on January 24, 1977, and sentencing was again deferred. On April 5, 1977, petitioner was sentenced to two to five years on the first set of charges, while sentence was suspended on the drug violation. Petitioner was afforded a full revocation hearing on May 12, 1977, and on May 18, 1977, the Board took action to recommit petitioner as a convicted parole violator, with review set for April 1978.

Petitioner basically alleges that the Board has violated his right to due process in three respects. First, petitioner alleges that the Board denied him due process in failing to parole him until June 5, 1976, when in fact his minimum sentence expired April 11, 1976. Since petitioner was in fact released following the alleged violation of ...


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