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EDWARD GREEN v. COMMONWEALTH PENNSYLVANIA (02/02/81)

decided: February 2, 1981.

EDWARD GREEN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in the case of Edward Green v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Edward Green, petitioner, for himself.

Arthur R. Thomas, Assistant Attorney General, with him Robert A. Greevy, Assistant Attorney General, and Harvey Bartle, III, Acting Attorney General, for respondent.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr. and Palladino. Opinion by Judge Palladino. Dissenting Opinion by Judge MacPhail. President Judge Crumlish and Judge Rogers join in this dissent.

Author: Palladino

[ 56 Pa. Commw. Page 409]

Edward Green has filed a Petition for Review with this Court alleging that the Pennsylvania Board of Probation and Parole (Board) has erroneously recomputed his sentence to which the Board has filed a preliminary objection in the nature of a demurrer. Pursuant to an order of this Court, the Board's preliminary objections have been submitted on briefs and we will rule on them accordingly.*fn1

In 1972 Petitioner was sentenced to a term of from one to eight years in the State Correctional Institute at Graterford, and after serving one year of his term was released on parole. While on parole Petitioner was arrested

[ 56 Pa. Commw. Page 410]

    by Philadelphia County authorities on June 2, 1978, and again on November 22, 1978, charged with various drug offenses, and was released each time on bail. The Board subsequently took Petitioner into custody on December 19, 1978, by filing a detainer against him because of his failure to report his arrests.

After conducting several hearings, the Board decided to keep the Petitioner in custody pending the outcome of the criminal charges lodged against him by the county authorities, and to recommit him as a technical parole violator "when available." On November 5, 1979, the Petitioner was sentenced by the Court of Common Pleas of Philadelphia County to a term of from eleven and one half to twenty-three months in the county prison for the offenses for which he had been arrested on June 2, 1978. In imposing the sentence Judge Kremer credited Petitioner with the time he had spent in custody since December 19, 1978, when the detainer was filed by the Board. As a result of this conviction the Board ruled that the Petitioner should be recommitted as a convicted parole violator when he became available from county authorities.

On January 8, 1980, Petitioner finished serving the minimum term on his county sentence and was transferred to state prison where he is currently serving the remaining time on his original sentence. In February of 1980 the Board met again and formally recommitted Petitioner as a convicted parole violator, and calculated that the balance of his original sentence would run until October 6, 1986.

In his Petition for Review, Green alleges that the Board erred in recomputing his sentence by not crediting his original sentence with the time he spent in Custody after December 19, 1978, as required under the authority of Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. ...


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