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WESLEY LAMONT TAYLOR v. COMMONWEALTH PENNSYLVANIA (02/14/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 14, 1979.

WESLEY LAMONT TAYLOR, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE ET AL., RESPONDENTS

Original jurisdiction in case of Wesley Lamont Taylor v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole et al.

COUNSEL

Wesley Lamont Taylor, 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 Crumlish, Jr.

Author: Crumlish

[ 40 Pa. Commw. Page 455]

Wesley Lamont Taylor (Petitioner) has filed a Complaint in Mandamus, which the Court will treat as a petition for review, alleging that the Pennsylvania Board of Probation and Parole (Board) failed to hold a final revocation hearing within a reasonable time. An answer was filed by Board with New Matter and a Certificate of the Chairman of the Pennsylvania Board of Probation and Parole included. Petitioner filed a reply to Board's New Matter.

Subsequently, Petitioner filed a motion for summary judgment and Board filed a cross motion for summary judgment. The case is presently before us for disposal pursuant to Pa. R.C.P. No. 1035.

[ 40 Pa. Commw. Page 456]

The Chairman's Certificate, in pertinent part, reveals that Petitioner was originally sentenced June 13, 1972, to a term of two years, six months, to ten years for aggravated robbery and that he was paroled on March 22, 1974. On September 13, 1977, Petitioner was rearrested on a charge of retail theft. On September 19, 1977, a parole violation warrant was lodged at the Philadelphia County Prison Detention Center, charging technical parole violations. On September 23, 1977, Petitioner signed a waiver of preliminary hearing and a waiver of full Board hearing. On September 30, 1977, a violation hearing was afforded and the Board's action was to "Recommit as a Technical Parole Violator, when available." On November 15, 1977, the Honorable N. A. Jenkins imposed a term of one year probation for the theft offense. On December 5, 1977, Petitioner signed a waiver of full Board revocation hearing. On January 25, 1978, Petitioner was received at the State Correctional Institution at Graterford. On March 23, 1978, Petitioner was afforded a revocation hearing and Board's action was recorded on April 28, 1978, to "Reaffirm Board Action of October 31, 1977, and Recommit as a Convicted Parole Violator and Review in September." As a convicted parole violator, Petitioner's maximum term has been modified to July 3, 1982.

Petitioner's basic contention is that the commencement date for the 120-day period in which a final revocation hearing must be held is November 15, 1977, the date on which he was convicted and sentenced to one year probation for the theft offense.*fn1 Board

[ 40 Pa. Commw. Page 457]

    counters that the regulation enacted*fn2 pursuant to the opinion and unpublished order in United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404 (E.D. Pa. 1975), permitted Board to delay the final revocation hearing beyond the 120-day period from the probation date.

The regulation cited by the Board is not applicable where, as here, the parolee, having been given a sentence of one year probation, is being held at the county institution, not at the request of the county authorities nor as a result of the sentence imposed for the new conviction on the parolee, but rather solely as a result of Board action. Hammond v. Pennsylvania Board of Probation and Parole, 40 Pa. Commonwealth Ct. 14, 396 A.2d 485 (1979).

Where a parolee is convicted of a new criminal offense a "hearing shall be held within 120 days from

[ 40 Pa. Commw. Page 458]

    the date the Board received official verification of the guilty verdict. . . ." The record does not indicate on which date the Board received the official verification of the parolee's conviction. The motions for summary judgment are denied, without prejudice, and the Board is directed to file a supplemental affidavit evidencing the date on which the Board received official verification of the guilty verdict whereafter the parties may timely file new motions.

Accordingly, we

Order

And Now, this 14th day of February, 1979, the motions of the Pennsylvania Board of Probation and Parole and Wesley Lamont Taylor for summary judgment are hereby denied, without prejudice, and the Pennsylvania Board of Probation and Parole is directed to supply a supplemental affidavit evidencing the date on which the Board received official verification of the guilty verdict within twenty (20) days of the date of this Order.

Disposition

Motions overruled without prejudice. Board directed to file additional affidavit.


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