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JAMES HAROLD DAVIS v. JULIUS T. CUYLER (11/16/78)

decided: November 16, 1978.

JAMES HAROLD DAVIS, PETITIONER
v.
JULIUS T. CUYLER, SUPERINTENDENT AT THE STATE CORRECTIONAL INSTITUTION, GRATERFORD, PENNSYLVANIA, AND THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENTS



Original jurisdiction in the case of James Harold Davis v. Julius T. Cuyler, Superintendent at the State Correctional Institution, Graterford, Pennsylvania, and the Pennsylvania Board of Probation and Parole.

COUNSEL

James H. Davis, petitioner, for himself.

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

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

Author: Macphail

[ 38 Pa. Commw. Page 489]

James Harold Davis (Petitioner) has filed a petition for review alleging that the Pennsylvania Board of Probation and Parole (Board) erroneously recomputed his sentences. The Board filed an answer with new matter and attached a certificate of the chairman of the Board setting forth the Petitioner's official record with the Board. The Petitioner filed a reply and a motion for summary judgment whereupon the Board filed a cross-motion for summary judgment. Pursuant to an order of this Court, the matter has been submitted upon the filing of briefs. It appearing that the pleadings are closed and that there is no dispute as to the essential facts, the case will be disposed of pursuant to the provisions of Pa.R.C.P. 1035.

From the pleadings it appears that the Petitioner received two sentences on January 26, 1974, each for a term of 9 to 59 months in the Berks County Prison. On October 30, 1974, he received another sentence of 9 to 59 months in the same county prison. Subsequently, he was paroled on both sentences, the date of the last parole being September 4, 1975. On May 20, 1976, he was arrested for new crimes in Berks County. On May 28, 1976, the Board filed a parole violation detainer against the Petitioner. The Petitioner was convicted

[ 38 Pa. Commw. Page 490]

    on November 12, 1976, with respect to the charges for which he had been arrested on May 20, 1976. After a revocation hearing, the Petitioner was recommitted as a convicted parole violator on November 12, 1976, "when available." On September 7, 1977, the Petitioner was sentenced on his new charges (upon which he had been convicted on November 12, 1976) to a term of not less than 2 nor more than 7 years in a state correctional institution. The trial judge ordered that the effective date of the sentence would be September 7, 1977, with the Petitioner to receive credit on that sentence of 475 days for time served.*fn1 On October 20, 1977, the Board reaffirmed the Petitioner's recommitment as a convicted parole violator "when available." Thereupon the Petitioner began his sentence in the State Correctional Institution at Graterford.

According to the certificate of the Chairman of the Board, the Petitioner's present status is that he is in a state correctional institution serving his 2 to 7 year term with an effective date of sentence of August 29, 1977, with the minimum term expiring August 29, 1979, and the maximum term expiring August 29, 1984. Although there is no allegation in any of the pleadings that the sentence imposed by the Berks County Court of Common Pleas on September 7, 1977, included a provision that the Petitioner should receive credit for 475 days on those sentences, both briefs assume that to be the fact and it is apparent that the crux of the petition now before us is how that credit should be applied. It is obvious that the Board applied the credit to the Petitioner's original sentence. It is the Petitioner's position that the Board's action in that respect violates the laws of the Commonwealth of Pennsylvania, the Rules of Criminal Procedure and the provisions of the

[ 38 Pa. Commw. Page 491]

    eighth amendment to the Constitution of the United States prohibiting cruel and unusual punishment.

The Board relies upon our decision in Mitchell v. Pennsylvania Board of Probation and Parole, 31 Pa. Commonwealth Ct. 243, 375 A.2d 902 (1977)*fn2 when it applied the Petitioner's confinement time to the Petitioner's original sentences. In the Mitchell case the Board argued that under the provisions of Pa.R.Crim.P. 1406(b)*fn3 it had the discretion to apply the Petitioner's confinement time to his original sentence or to any new sentence in the circumstances where a ...


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