Nos. 51 and 77 March Term, 1979, Appeal from Order and Opinion of the Commonwealth Court of Pennsylvania at No. 9 Miscellaneous Docket No. 2, dated March 5, 1979.
William J. Hines, in pro per.
Robert A. Greevy, Asst. Atty. Gen., Pa. Board of Probation and Parole, Harrisburg, for appellee cross-appellant.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion in which O'Brien J., joins.
We have before us cross appeals by the Pennsylvania Board of Probation and Parole ("Board") and William J. Hines ("Hines") from an order of the Commonwealth Court entered on March 5, 1979.*fn1
On October 19, 1973, Hines was sentenced to a term of two to five years for violation of the Controlled Substance, Drug, Device and Cosmetic Act ("Act"). Act of April 14, 1972, P.L. 233, No. 64 § 1, 35 P.S. § 780.101 et seq. On May 13, 1974, Hines was convicted of a subsequent violation of the Act, and was sentenced to a term of one to two years to be served consecutive to the first sentence. Having served two years of his 1973 sentence, Hines was paroled on August 29, 1975, and immediately began serving
his 1974 sentence.*fn2 One year later, on August 29, 1976, Hines was released on parole from both sentences.
While on parole, Hines was arrested by the Allegheny County authorities on July 6, 1977, charged with several new criminal offenses, including armed robbery, and incarcerated in the Allegheny County Prison without bail.*fn3 On the same date, the Board lodged a detainer charging Hines with technical parole violations.*fn4 With respect to the technical violations, the Board scheduled a preliminary hearing for July 14, 1977. Hines waived his right to that hearing and requested a violation and revocation hearing before the full Board. Upon receipt of official notice that Hines had been convicted of the July 6, 1977 criminal charges, the Board scheduled the violation and revocation hearing.*fn5 Although the detainer had been lodged solely for technical violations, the violation and revocation hearing combined consideration of both technical and criminal parole violations. After the hearing, Hines was recommitted and, on the basis of the criminal parole violations, the Board recomputed his original sentence to run from July 6, 1977 to July 6, 1980, without giving him credit for the time spent on constructive parole (August 29, 1975 to August 29, 1976).
On July 14, 1978, Hines filed a Petition for Review in the Commonwealth Court, contending that the Board had not given him credit on his original sentence either for pre-trial custody or for time on constructive parole. Motions for summary judgment were filed by Hines and the Board. On March 5, 1979, the Court partially granted Hines' motion, holding that he had not been given credit on his original sentence for the period from July 6, 1977 to June 8, 1978, and ordered the Board to give him credit for this time. The Court also ...