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DEWITT DAVID POINDEXTER v. COMMONWEALTH PENNSYLVANIA (11/02/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 2, 1979.

DEWITT DAVID POINDEXTER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Original jurisdiction in case of Dewitt David Poindexter v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Dewitt David Poindexter, petitioner, for himself.

Stephen J. Mascherino, Assistant Attorney General, 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

[ 47 Pa. Commw. Page 184]

Petitioner was serving a sentence of five-to-twenty years at the State Correctional Institution at Graterford with a recomputed minimum sentence date of September 22, 1976 and maximum date of September 22, 1991, when he was assigned to the Philadelphia Community Treatment Center.*fn1 He absconded from the Center on December 27, 1975.

In August of 1976, he was arrested and charged with escape and several other offenses. The prosecution

[ 47 Pa. Commw. Page 185]

    withdrew the other charges without prejudice in January of 1977, and, on March 15, 1977, the court dismissed the charge of escape pursuant to Pennsylvania Rule of Criminal Procedure 1100.*fn2

Also on March 15, the Pennsylvania Board of Probation and Parole (Board) decided that petitioner's parole consideration would be continued pending disposition of the new criminal charges and that in the interim he would continue serving his five-to-twenty year sentence.

However, after the escape charge was dismissed, petitioner did not return to the Center.

He was arrested again on November 20, 1978*fn3 and transferred back to Graterford on November 22, 1978.*fn4

On November 24, 1978, petitioner received notice from the records officer at Graterford of proposed administrative action to modify his sentence to reflect all his "escape" time of two years, ten months and twenty-one days, thereby establishing a new minimum

[ 47 Pa. Commw. Page 186]

    date of August 13, 1979 and new maximum date of August 13, 1994.

The notice also informed him that such action would be taken as a matter of course unless he wished to appear before the Program Review Committee to contest the charge.

Petitioner refused to sign the proffered request to appear before the Committee, and the sentence change became final on December 9, 1978, no hearing having been requested within fifteen days.

Petitioner raises two issues:

First, he challenges the substantive validity of the denial of credit on his sentence for the period of "escape status", absent a conviction for escape.

Second, he raises issue of the procedural validity of an administrative recomputation of his sentence, the recomputation having been made by the records officer at the State Correctional Institution at Graterford.

In Harbold v. Carson, 24 Pa. Commonwealth Ct. 417, 356 A.2d 835 (1976), we dismissed a mandamus petition which sought to compel the records officer at the State Correctional Institution at Huntingdon to restore the inmate's pre-escape minimum sentence. The case law we relied on there is controlling. Commonwealth ex rel. Goins v. Rundle, 411 Pa. 590, 192 A.2d 720, cert. den., 375 U.S. 959, 84 S. Ct. 449 (1963); Commonwealth ex rel. McNeair v. Banmiller, 392 Pa. 101, 139 A.2d 633 (1958); and Commonwealth ex rel. Tyson v. Day, 181 Pa. Superior Ct. 259, 124 A.2d 426 (1956) all establish the proposition that escapees or fugitives have no entitlement to credit for time spent on unauthorized absence from the appropriate authorities, even though they are not formally convicted of escape.

As to the second issue, the law is clear that the records officer of Graterford did not usurp judicial

[ 47 Pa. Commw. Page 187]

    authority in administratively recomputing petitioner's maximum sentence.*fn5

In Robinson v. Department of Justice we said:

Petitioner's contention that only a judicial body may redetermine an escapee's sentence is likewise without merit, as such a redetermination constitutes not the imposition of a new sentence but merely completion of service of the original judicially imposed sentence. United States ex rel. Gomori v. Maroney, 196 F. Supp. 190 (W.D. Pa. 1961), aff'd, 300 F.2d 755 (3d Cir. 1962). Not being a judicial function, a proper recomputation of a sentence may constitutionally be performed administratively. See generally Commonwealth ex rel. Thomas v. Myers, 419 Pa. 577, 215 A.2d 617 (1977); Commonwealth v. Bigley, 231 Pa. Super. 492, 331 A.2d 802 (1974).

32 Pa. Commonwealth Ct. 77, 80-81, 377 A.2d 1277, 1279 (1977).

Petitioner's further demand, that the Board grant him a parole hearing on the basis of his computation

[ 47 Pa. Commw. Page 188]

    of minimum sentence expiration date, is now moot in that his minimum sentence expired on August 13, 1979, under the computation approved here. Under the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. ยง 331.21, petitioner is now eligible for parole consideration by the Board, even though his computation is rejected.

Therefore, respondent's motion for summary judgment is granted.

Order

And Now, this 2nd day of November, 1979, the motion for summary judgment of respondent, Pennsylvania Board of Probation and Parole, is hereby granted.

Disposition

Motion of respondent granted.


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