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HAROLD S. NEELY v. JULIUS T. CUYLER (01/16/80)

decided: January 16, 1980.

HAROLD S. NEELY, PETITIONER
v.
JULIUS T. CUYLER, SUPERINTENDENT AT THE STATE CORRECTIONAL INSTITUTION AT GRATERFORD, PENNSYLVANIA ET AL., RESPONDENTS



Original jurisdiction in case of Harold S. Neely v. Julius T. Cuyler, Superintendent, State Correctional Institution at Graterford, Pennsylvania et al.

COUNSEL

Harold Neely, for himself, petitioner.

Robert A. Greevy, Assistant Attorney General, with him 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 Wilkinson, Jr. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Wilkinson

[ 48 Pa. Commw. Page 487]

Petitioner filed a "Petition for Review and Jurisdiction" which we have treated as a petition for review addressed to this Court's original jurisdiction pursuant to the Pennsylvania Rules of Appellate Procedure and Section 761 of the Judicial Code, 42 Pa. C.S. § 761. Respondent filed an answer with new matter and attached a certificate of the Pennsylvania Board of Probation and Parole (Board) setting forth petitioner's official record with the Board. The petitioner then filed a motion for summary judgment and a brief in support of that motion, whereupon the Board filed a cross-motion for summary judgment and a brief in support thereof, to which petitioner filed a reply. Pursuant to an order of this Court, the matter has been submitted upon the filing of briefs. It appearing that the pleadings are closed and that there is no dispute as to the essential facts, the case will be disposed

[ 48 Pa. Commw. Page 488]

    of on the cross-motions for summary judgment. Pa. R.C.P. No. 1035.

Petitioner was sentenced on October 16, 1964, in Montgomery County to a term of four to ten years for the offenses of burglary, larceny, and receiving stolen goods, effective March 17, 1964, with a minimum term of March 17, 1968, and a maximum term of March 17, 1974. Subsequent to his release on parole on January 28, 1969, from the State Correctional Institution at Graterford, he was arrested on July 18, 1969, by Berks County authorities on a murder charge. After a violation hearing on November 3, 1969, the Board acted to recommit petitioner as a technical parole violator. Petitioner was found guilty of voluntary manslaughter on March 23, 1970, and the Board then changed his status on April 3, 1970, from technical to convicted parole violator. He then received a five-to-ten year sentence on January 7, 1971, for the new conviction.

Subsequent to petitioner's release on parole on August 31, 1976, he was arrested on March 6, 1977, by the Berks County authorities on charges of attempted murder, attempted robbery, aggravated assault, conspiracy, and convicted person carrying a firearm. On March 7, 1977, a parole violation warrant was filed based on the new criminal charges and for technical parole violations. The petitioner received a preliminary detention hearing on March 18, 1977, and a criminal preliminary hearing on April 1, 1977. On April 19, 1977, the Board took action to detain petitioner pending disposition of the criminal charges and to schedule a violation hearing. However, on September 24, 1977, petitioner escaped from Berks County prison. He was rearrested the next day.

On January 13, 1978, petitioner was found guilty by Berks County Court of criminal attempt, former convict not to carry a firearm, and aggravated assault; sentence was deferred. On January 26, 1978, a

[ 48 Pa. Commw. Page 489]

    revocation hearing was held after which the Board took action to recommit petitioner as a convicted parole violator when available. On February 21, 1978, petitioner was found guilty of escape and received a one-to-three year sentence to be served at the State Correctional Institution. A revocation hearing was held April 20, 1978; and on May 30, 1978, the Board acted to reaffirm the recommitment action as a convicted parole ...


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