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JAMES L. WHITEST v. COMMONWEALTH PENNSYLVANIA (12/15/78)

decided: December 15, 1978.

JAMES L. WHITEST, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of James L. Whitest v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

James L. Whitest, 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 Mencer.

Author: Mencer

[ 39 Pa. Commw. Page 255]

James L. Whitest filed a petition for review in the nature of mandamus, challenging his detention by the Pennsylvania Board of Probation and Parole pending disposition of criminal charges in Delaware County. The Board filed an answer with new matter. The parties filed cross motions for judgment on the pleadings. We grant the Board's motion and enter judgment in favor of the Board and against the petitioner, whose motion for judgment on the pleadings is denied.

Whitest was sentenced on December 5, 1975 in the Court of Common Pleas of Delaware County to a term of 3 to 6 years for the offense of murder, the effective date of this sentence being November 22, 1972. On April 6, 1976, he was released on parole under a parole plan to be carried out within the State of New York. Whitest was declared delinquent as of October 7, 1976 because his whereabouts were unknown to parole personnel.

[ 39 Pa. Commw. Page 256]

On March 10, 1978, Whitest was arrested in Chester, Pennsylvania, on charges of illegal possession of drugs and conspiracy. Thereafter, on April 3, 1978, a parole violation warrant was lodged with the authorities at the Delaware County Prison where Whitest was being confined.

On April 10, 1978, he was afforded a preliminary hearing before a district justice, at which time a prima facie case on the pending charges was established. On April 11, 1978, a "Notice of Charges and Hearing" was sent to Whitest and the Delaware County Public Defender, advising Whitest in writing of the technical parole violations and criminal charges against him and of a preliminary detention hearing scheduled for April 18, 1978. Whitest requested and was granted a continuance on two occasions in order to provide him time and opportunity to engage private counsel. On May 9, 1978, the preliminary detention hearing was held and Whitest was represented by counsel of his choice. The Board took action on May 30, 1978 to detain Whitest pending disposition of the criminal charges.

Whitest in substance advances three questions for our resolution. His first contention is that the Board violated his right to due process of law by lodging a detainer which prevents him from being released in the exercise of his constitutional right to post bail. This contention was fully refuted by the Court of Common Pleas of York County in the case of Commonwealth ex rel. Brooks v. Lindsey, (No. 511 May Term, 1973, filed March 22, 1973), aff'd, 228 Pa. Superior Ct. 759, 312 A.2d 800 (1973). In Brooks, Judge Shadle convincingly wrote:

[I]t is clear that petitioner's constitutional right to bail on the new charge has not been impaired by the filing of the parole detainer. Bail has been ...


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