Original jurisdiction in case of Richard Carter v. Thomas C. Rapone and Pennsylvania Board of Probation and Parole.
Richard Carter, 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 Craig.
[ 39 Pa. Commw. Page 161]
This petition for review of actions taken by the Pennsylvania Board of Probation and Parole (Board) is ready for disposition upon cross-motions for summary judgment, pursuant to this court's order that the issues be submitted on briefs.
The facts are as follows. Petitioner Richard Carter was paroled from the Delaware County Prison on June 25, 1974, where he had been serving several concurrent sentences, with a maximum term expiration date of July 5, 1976.
While petitioner was on parole, police arrested him September 30, 1974 on burglary charges. The Board lodged a warrant, charging technical parole violations, against him as a detainer, on October 2, 1974. Subsequently, the Board held a preliminary detention hearing and ordered him detained pending disposition of the new criminal charges.
On April 17, 1975, petitioner was found guilty of burglary and the same day sentenced to five to ten years at the State Correctional Institution at Dallas. The sentence is recorded to be effective October 1, 1974.
Following a final revocation hearing, the Board ordered petitioner recommitted as a convicted parole violator "when available," with unserved backtime on the prior sentences noted as totaling "two years, ten days."
[ 39 Pa. Commw. Page 162]
Petitioner continues to be incarcerated at Dallas on the sentence imposed for his conviction of burglary in Delaware County, C.P., No. 875 December Term, 1974, the crime he committed while on parole.
Petitioner contends that the Board's order to recommit him as a convicted parole violator "when available" and failure to set a date for consideration of reparole are improper because he is currently not "unavailable" to continue serving the unexpired portion of the sentence from which he was paroled. According to petitioner, he is "available" because both his original and subsequent sentences come under the general ...