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LEONARD TILLMAN v. COMMONWEALTH PENNSYLVANIA (05/08/79)

decided: May 8, 1979.

LEONARD TILLMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in case of Leonard Tillman v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Leonard Tillman, petitioner, for himself.

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

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

Author: Macphail

[ 42 Pa. Commw. Page 482]

Leonard Tillman has filed with this Court a complaint in mandamus, which, pursuant to prior order, we shall treat as a petition for review. Tillman seeks relief from certain actions of the Board of Probation and Parole (Board).*fn1 The Board has filed preliminary objections in the nature of a demurrer and the case is now before us for disposition on briefs.

In considering the Board's demurrer we must accept as true every well and clearly pleaded fact and

[ 42 Pa. Commw. Page 483]

    all reasonable inferences therefrom. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976).

In the pleading which is now under attack by the Board's demurrer, Tillman avers that: he was sentenced to serve 2 to 6 years on April 15, 1974, by the Court of Common Pleas of Westmoreland County after a plea of guilty; he was resentenced on May 16, 1975 ("sentence reduced"), and released under the supervision of the Board; on June 18, 1975, the order of May 16 was rescinded and he was placed under the supervision of the Westmoreland County office of Probation and Parole "until parole [sic] by the Pennsylvania Board of Parole"; he was arrested in July of 1976 and re-entered by the Board for the balance of his original 2 to 6 year term; following a post conviction hearing act proceeding, he was "released" in February of 1977; he was arrested for a new offense and a detainer was lodged by the Board on October 13, 1977; a preliminary hearing (continued to enable him to obtain counsel) was held November 4, 1977, following which he was ordered detained until a final revocation hearing "when available"; following his conviction on February 18, 1978, he was sentenced to a 6 to 12 month term in prison; following a plea of guilty he was sentenced on March 6, 1978, on other charges to a term of 1 to 2 years to run concurrent with the 6 to 12 month sentence imposed in February; on March 8, he was "determined a convicted probation violator" and sentenced to a term of 6 months to 2 years to begin at the end of his 1 to 2 year sentence; on April 17, 1978, he was transferred from the Allegheny County Jail to the State Regional Correctional Facility at Greensburg; on May 24, 1978, he was sentenced on another conviction to a term of 2 1/2 to 5 years to run concurrently with the other sentences previously imposed; on May 31, 1978, he was transferred from the Correctional Facility at Greensburg to the Western State Correctional

[ 42 Pa. Commw. Page 484]

Institution; and on June 1, 1978, a final revocation hearing was held by the Board following which his parole on the sentence of 2 to 6 years imposed in 1973 was revoked and he was re-entered to serve the balance of that term.

In his brief Tillman claims that his pleading entitles him to relief because: (1) the Board violated its own rules with respect to revocation hearings for technical parole violators; (2) the Board violated its own rules with respect to revocation hearings for convicted parole violators; and (3) his rights under the fourteenth amendment to the United States Constitution were violated when the Board ...


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