Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Rickie Trenge v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.
Patrick J. Flannerey, Assistant Public Defender, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 71 Pa. Commw. Page 524]
In this appeal from a decision of the Board of Probation and Parole (Board) the question to be resolved as set forth in Petitioner's brief is:*fn1
May the Board recommit and recompute the sentence of a convicted parole violator where, although the subsequent crime was committed during parole, the conviction did not take place until the expiration of the maximum sentence on the prior conviction?
Factually, it appears that Petitioner was paroled as of July 28, 1978 from his original sentence. He was arrested on November 20, 1980 for a new offense. On
[ 71 Pa. Commw. Page 525]
November 26, 1980, he was detained as a parole violator. After a hearing, Petitioner was returned to custody as a parole violator but when his original sentence expired on January 28, 1981, he was released into the custody of his parole agent. On February 10, 1981 Petitioner was declared delinquent for control purposes as of November 20, 1980. On April 29, 1981, Petitioner pled guilty to the charges for which he was arrested on November 20, 1980. On June 16, 1981, a revocation hearing was held and Petitioner was recommitted as a convicted parole violator and his maximum sentence was recomputed to December 18, 1983.
Petitioner argues that since he was not convicted for his new offense until after his original sentence had expired, the Board had no authority to recommit him as a parole violator and recompute his sentence. Petitioner admits, as he must, that this Court in Kuykendall v. Pennsylvania Board of Probation and Parole, 26 Pa. Commonwealth Ct. 234, 363 A.2d 866 (1976) held that the Board can recommit and recompute the sentence of a parolee who commits a crime while on parole but who is not convicted until after his original sentence would have expired. Petitioner, however, contends that the instant case is factually distinguishable from Kuykendall because in Kuykendall the parolee had absconded and we held that he could not profit from his wrongdoing. In the instant case, it appears that six days after he was arrested for the new offense, a parole violation warrant was filed against Petitioner. A preliminary and detention hearing was held twenty-one days later and as we have noted, on January 19, 1981, nine days before his maximum sentence expired, the Board took action to detain Petitioner pending disposition of the criminal charges, to return him as a technical parole violator and to schedule an immediate violation hearing. For some reason, not explained in the record or in the
[ 71 Pa. Commw. Page 526]
Board's brief, Petitioner was released from custody on January 28, the date his original sentence expired. Again, as we have noted, on February 10, 1981, he was declared delinquent for control purposes "as of November 20, 1980". Petitioner avers that he never received that notice. He further avers that had he been aware ...