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MARTIN HARRIS v. COMMONWEALTH PENNSYLVANIA (11/02/78)

decided: November 2, 1978.

MARTIN HARRIS, JR., A/K/A ARTHUR CARMICHAEL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of Martin Harris, Jr., a/k/a Arthur Carmichael v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Martin Harris, Jr., petitioner, for himself.

Robert A. Greevy, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.

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

Author: Blatt

[ 38 Pa. Commw. Page 392]

Martin Harris, Jr., a/k/a Arthur Carmichael (petitioner) has filed a Petition for Review with this Court directed against the Pennsylvania Board of Probation and Parole (Board). Presently before us are motions for summary judgment filed by both the petitioner and the Board.

In 1955 the petitioner was convicted of two counts of aggravated robbery and was sentenced to serve consecutive terms of 5-10 and 10-20 years, i.e., an aggregate term of 15-30 years, effective August 22, 1955. He was paroled on January 19, 1974, having then served approximately 18 years and 5 months. Subsequently, on April 7, 1974, he was arrested on a charge of bank robbery, and on or about April 9 he informed his probation officer he would plead guilty at his arraignment. A preliminary detention hearing was held by the Board where it was established that the petitioner had committed a technical parole violation in violating condition 6 of his parole, i.e., possession of a weapon, and "probable cause" for revocation of parole was noted. A final parole revocation hearing was scheduled for July 23, 1974 by the Board and the petitioner was therefore detained by it pending

[ 38 Pa. Commw. Page 393]

    disposition of the criminal charges. On May 31, 1974, he was convicted of bank robbery and was sentenced on June 26, 1974, to a term of 6 years at a federal penitentiary, which sentence was to run concurrently with any sentences on which there was back time owed under Pennsylvania law. The petitioner's parole revocation hearing, scheduled for July 23, 1974, was not held because of his transfer to a federal prison, but he was returned to the State Correctional Institution at Graterford on February 28, 1978, and, on March 17, 1978, he received notice from the Board that he was charged with violating condition 3 of his parole, i.e., commission of a bank robbery, and that the revocation hearing would be held on March 30, 1978. He then signed a waiver as to a full Board hearing and to legal counsel. The hearing was continued to April 13, 1978 at the Board's request for the stated purpose of notifying the petitioner and his counsel, and, after this hearing, he was recommitted not as a technical parole violator but as a convicted parole violator with back time of 11 years 7 months on his 1955 conviction. His original maximum sentence expiration date was modified by the Board to read September 28, 1989.

The petitioner argues that he was not afforded a timely revocation hearing, that his sentence has been unlawfully extended, and that unnecessary and illegal delay by the Board caused him to be segregatively confined from February 28, 1978 to May 29, 1978 where he was ineligible for rehabilitative pursuits.

In support of his first argument, the petitioner points out that he had admitted his guilt to his parole officer on or about April 9, 1974, soon after his arrest, and that he had so pleaded at his arraignment on May 1, 1974. He argues that his revocation hearing therefore should have been held either immediately under Pa. R. Crim. P. 1409 or within 30 days of

[ 38 Pa. Commw. Page 394]

    the Board's determination in 1974 that he was a technical parole violator under 37 ...


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