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GEORGE A. CORBIN v. COMMONWEALTH PENNSYLVANIA (04/18/79)

decided: April 18, 1979.

GEORGE A. CORBIN, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of George A. Corbin, Jr. v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

George A. Corbin, Jr., petitioner, for himself.

Robert A. Greevy, Assistant Attorney General, and Edward G. Biester, Jr., Acting Attorney General, for respondent.

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

Author: Rogers

[ 42 Pa. Commw. Page 52]

George A. Corbin, Jr. has filed a petition for review requesting this Court to set aside the action of the Board of Probation and Parole (Board) recommitting him for having violated the conditions of his parole (that is, as a technical parole violator) and for having been convicted of a new offense (that is, as a convicted parole violator). The Board has filed an answer and new matter to which petitioner filed a reply. Each, Corbin and the Board, has filed a motion for judgment on the pleadings. No material facts being in dispute, we may dispose of the motions.

The petitioner has alleged violations of procedural rights guaranteed by a version of the Rules and Regulations of the Board in existence before the Board did the things he complains of as improper in this case. The Rules and Regulations were extensively amended on March 1, 1977. We will, as we must, decide the case by applying the Rules and Regulations in effect when the Board acted. We have concluded that the charges of violating the conditions of the parole must be dismissed because a timely Violation Hearing was not provided, but that the Board's action recommitting the petitioner as a convicted parole violator was proper.

Corbin was sentenced on July 29, 1975 to a term of one to five years following his conviction on a

[ 42 Pa. Commw. Page 53]

    charge of attempted burglary. The sentence had an effective date of December 23, 1974, with a minimum of December 23, 1975 and a maximum of December 23, 1979. On October 29, 1975, petitioner was entered at the State Correctional Institute at Pittsburgh. He was released under parole supervision on January 7, 1976. On March 17, 1977 the Board declared Corbin delinquent as of February 11, 1977 because his whereabouts were unknown. On June 24, 1977, a warrant was lodged at the Allegheny County Prison where Corbin then was, reciting both the technical parole violations and also new criminal charges stemming from an arrest on June 22, 1977 by Allegheny County authorities. Because Corbin was charged with technical parole violations the procedural safeguards of Board Regulation Section 71.2, 7 Pa. B. 488-89, applied to those charges.*fn1 Subsection (3) of Section 71.2 states that a Preliminary Hearing will be held within 15 days of the arrest of the parolee on the Board warrant. Corbin was therefore entitled to a Preliminary Hearing conducted no later than July 11, 1977. Corbin's Preliminary Hearing was scheduled for July 7, 1977, but at the request of Corbin's lawyer was continued. The Board was thus excused from any delay caused by the parolee's request. Adams v. Pennsylvania Board of Probation and Parole, 39 Pa. Commonwealth Ct. 524, 395 A.2d 1035 (1979). On July 13, 1977, Corbin was notified that his preliminary detention hearing would be held on July 28, 1977, within 15 days of the notice of rescheduling. The Board did not act unreasonably in rescheduling the continued hearing for a date 15 days after Corbin's request for a continuance. By analogy, Section 71.2(5)(iii)

[ 42 Pa. Commw. Page 54]

    provides that in the event a parolee not represented by counsel decides to retain counsel prior to the commencement of the preliminary detention hearing, "[t]he Examiner of the Board shall then terminate the proceeding, have the parolee returned to custody and initiate action to have the Preliminary Hearing rescheduled within 15 days."

Following the Preliminary Hearing held on July 28, 1977, the Board ordered petitioner returned as a technical parole violator and scheduled a Violation Hearing. This was not held until April 12, 1978. Even after making allowances pursuant to Section 71.5(i) for a continuance requested by Corbin, the Board failed to hold the Violation Hearing within the 120 day period after the Preliminary Hearing as required by Regulation Section 71.2(11). The Board has argued that its failure to conduct the Violation Hearing was caused by the transfer of petitioner between Clearfield and Allegheny Counties to answer criminal charges in each County. We hold this circumstance did not render Corbin unavailable under Section 71.5(i)(1), 7 Pa. B. 491. ...


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