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BENJAMIN RICHMOND v. COMMONWEALTH PENNSYLVANIA (06/28/79)

decided: June 28, 1979.

BENJAMIN RICHMOND, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Original jurisdiction in case of Benjamin Richmond v. Commonwealth of Pennsylvania.

COUNSEL

Benjamin Richmond, petitioner, for himself.

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

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

Author: Craig

[ 43 Pa. Commw. Page 604]

Petitioner Benjamin Richmond has filed a petition for writ of mandamus, which we treat as a petition for review, against the Pennsylvania Board of Probation and Parole (Board), alleging that he has been denied due process and has been subjected to double jeopardy as a result of the Board's unlawful recomputation of his sentence. The parties' cross-motions for summary judgment are before us for consideration.

[ 43 Pa. Commw. Page 605]

On May 15, 1978, while on parole from a sentence carrying on October 5, 1982 maximum, petitioner was arrested by Dauphin County authorities on six separate counts of forgery and other related offenses. A parole violation warrant was filed against him on that date. Petitioner was afforded a preliminary hearing on May 24, and on June 21, 1978, the Board ordered petitioner detained pending disposition of the outstanding criminal charges.

On July 20, 1978, petitioner pleaded guilty to all counts and was sentenced on October 5, 1978 to multiple concurrent terms of six months to two years, to be served at the State Correctional Institution at Camp Hill, to be effective as of his May 15, 1978 date of arrest, in accordance with Pa. R. Crim. P. 1406(b).

As a result of an October 30, 1978 parole revocation hearing, petitioner was recommitted as a convicted parole violator with his new sentence to remain as a detainer.

Petitioner contends that, as of November 15, 1978, when he was "turned over to his old sentence," the six-month minimum on the new sentence had been satisfied by his detention since May 15, 1978, and therefore the Board was powerless to require petitioner to begin serving the backtime remaining on his original sentence.

Petitioner's claim is without merit. Although petitioner is correct in noting that Section 21.1(a) of the Act of August 6, 1941,*fn1 requires a convicted parole violator to serve the balance of his original sentence before service of the newly imposed term is commenced, this rule only becomes operative when parole ...


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