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CALVIN BROWN v. COMMONWEALTH PENNSYLVANIA (03/07/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 7, 1983.

CALVIN BROWN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Appeal from the Pennsylvania Board of Probation and Parole in the case of Calvin Brown v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Timothy P. Wile, 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.

Author: Macphail

[ 72 Pa. Commw. Page 428]

Petitioner, Calvin Brown, appeals from an order of the Board of Probation and Parole (Board) entered March 19, 1981 on the ground that the delay between the Board's revocation hearing held September 3, 1975 and the Board's order of March 19, 1981 computing his back time*fn1 violated his constitutional rights under the Sixth*fn2 and Fourteenth*fn3 Amendments to the U.S. Constitution, Article I, Section 9 of the Pennsylvania Constitution*fn4 and 37 Pa. Code § 71.4(9).*fn5

Petitioner contends that the computation of his back time is an integral part of the revocation of his parole and that the delay between the Board's two

[ 72 Pa. Commw. Page 429]

    orders was prejudicial to him. At the outset, we observe that if Petitioner was of the opinion that he was prejudiced by the Board's failure to compute his back time in its order relative to the hearing of September 3, 1975, he had remedies available to him to correct the alleged error at that time either by means of an administrative appeal or by an action in mandamus. Having failed to avail himself of those remedies, he cannot now claim prejudice by reason of delay.

Apart from the issue of prejudice, we must observe that this Court has held that the computation of a parolee's back time is not a sentence nor is it analogous to a sentence, as contended by Petitioner. Brown v. Pennsylvania Board of Probation and Parole, 56 Pa. Commonwealth Ct. 197, 424 A.2d 596 (1981). It follows that the constitutional rights of a parolee under the Sixth Amendment to the U.S. Constitution have not been violated by the Board's order.

Concerning his due process rights under the Fourteenth Amendment, Petitioner relies upon the language in Morrissey v. Brewer, 408 U.S. 471 (1972) which requires the Board to offer Petitioner a revocation hearing within a reasonable time from the date the Board becomes aware of the violation. Petitioner admits that he had a timely hearing but contends that inasmuch as the Board did not compute his back time in its order, the revocation process was not complete. We disagree.

Petitioner points to no statutory or case law that would require the Board to compute his back time as a part of its adjudication following a revocation hearing, and we have found no such authority. 37 Pa. Code § 71.4(9) does require the Board to state the date for reparole consideration if it orders revocation. It does not appear that this was done in the instant case but that deficiency was cured by the Board in its order of March 19, 1981 which computed the Petitioner's

[ 72 Pa. Commw. Page 430]

    back time and fixed the time for reparole consideration for February of 1983. Petitioner does not complain here that his back time was erroneously computed or that the date fixed for reparole consideration is unfair to him.

Order affirmed.

Order

The order of the Pennsylvania Board of Probation and Parole entered March 19, 1981 is affirmed.

Disposition

Affirmed.


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