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JAMES K. LEWIS v. COMMONWEALTH PENNSYLVANIA (05/17/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 17, 1983.

JAMES K. LEWIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Appeal from the Orders of the Pennsylvania Board of Probation and Parole in case of James K. Lewis v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, dated October 9, 1980, and November 24, 1980.

COUNSEL

Frank J. Madey, Assistant Public Defender, with him Edward R. Eidelman, Appellate 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 Craig.

Author: Craig

[ 74 Pa. Commw. Page 336]

James K. Lewis appeals from two orders of the Pennsylvania Board of Probation and Parole which resulted in his recommitment as a technical and convicted parole violator. We affirm.

On June 30, 1971, the Lehigh County Court of Common Pleas had sentenced Mr. Lewis to prison for five to ten years for possessing and trafficking in narcotic drugs. The record does not indicate when the board first paroled Mr. Lewis; the board chairman's certificate reveals only that Mr. Lewis had been recommitted once as a technical parole violator and that he was reparoled on May 8, 1979 under an approved plan.

On June 5, 1980, the Commonwealth charged Mr. Lewis with simple assault for allegedly shoving a young woman into a wall. Entering a plea of nolo contendere, Mr. Lewis was sentenced to the summary offense of harassment on September 30, 1980, and paid a $300 fine. Following an October 10, 1980 hearing, the board recommitted Mr. Lewis to prison for violating condition 10 of his parole,*fn1 ordering him to serve

[ 74 Pa. Commw. Page 337]

    the ten months and twenty-four days of his unexpired term.

In response to Mr. Lewis' "Application for Administrative Review and Reconsideration," the board held a second hearing on October 21, 1980. On November 24, 1980, the board reaffirmed Mr. Lewis' recommitment for a technical parole violation,*fn2 recommitted him as a convicted parole violator, and extended his maximum sentence for parole violation to February 5, 1984.

As Mr. Lewis observes, the particular nature of a recommitment -- whether as a technical or convicted parole violator -- is significant because a convicted parole

[ 74 Pa. Commw. Page 338]

    violator, if recommitted, does not receive credit for the time he served at liberty on parole; he forfeits his "street time." Compare Gaito v. Pennsylvania Board of Probation and Parole, 38 Pa. Commonwealth Ct. 199, 203, 392 A.2d 343, 345 (1978) with Commonwealth v. Greenlee, 263 Pa. Superior Ct. 477, 483, 398 A.2d 676, 679 (1979) (revocation for technical violation requires that credit be given for street time passed in good standing). See also section 21.1 of the Act of August 6, 1941, P.L. 861, added by section 5 of the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. § 331.21a (Parole Act).

Mr. Lewis contends that the board lacked statutory authority to recommit him as a "convicted parole violator," arguing that conviction for a summary offense does not amount to conviction for a crime under 61 P.S. § 331.21a(a), which provides, in pertinent part:

Any parolee under the jurisdiction of the Pennsylvania Board of Parole . . . who, during the period of parole . . . commits any crime punishable by imprisonment. . . to which he pleads . . . nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If this recommitment is so ordered . . . he shall be given no credit for time at liberty on parole. (Emphasis added.)

Specifically, Mr. Lewis contends that, because the legislature did not list "summary offenses" under the

[ 74 Pa. Commw. Page 339]

    classes of crime generally enumerated in sections 106(a) and (b) of the Pennsylvania Crimes Code, 18 Pa. C.S. §§ 101-7507, but defined them separately in section 106(c), we should construe section 106(c) as an exception to the general crimes classification provisions, and deduce from that construction that the legislature did not intend for summary offenses to be considered crimes. See 1 Pa. C.S. § 1933. We disagree.

Under the Crimes Code, "[a]n offense . . . for which a sentence of death or of imprisonment is authorized constitutes a crime." 18 Pa. C.S. § 106(a) (emphasis added). "An offense . . . constitutes a summary offense if . . . a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than ninety days." 18 Pa. C.S. § 106(c)(2) (emphasis added). As our Superior Court observed in Interest of Golden :

[I]t clearly appears that imprisonment is authorized for a summary offense and the commission of a summary offense constitutes a crime under our Crimes Code.

243 Pa. Superior Ct. 268, 271, 365 A.2d 157, 158 (1976), petition for allowance of appeal denied (1977).

Mr. Lewis also contends that the board was arbitrary and capricious because the common pleas court merely imposed a $300 fine for harassment while, for the same offense, the board not only forfeited his street time, but also recommitted him to prison for over ten months, allegedly deviating, without justification, from the one-to-six-month presumptive range of incarceration mandated under 37 Pa. Code § 75.2 for parole violators convicted of harassment.

The board's actions here were not arbitrary and capricious even though they are more severe than the $300 criminal sanction imposed by the common pleas court; the board acted well within its statutory authority. 61 P.S. § 331.21a.

[ 74 Pa. Commw. Page 340]

Moreover, the board did not impose over ten months of recommitment time because of Mr. Lewis' new conviction; it ordered him to serve the remainder of his unexpired term for violating special condition 10 of his parole. Thus, the presumptive range of one-to-six-months for a conviction of harassment is inapplicable here.

Moreover, there are no presumptive ranges to be followed when a parolee violates a special condition of parole; the regulations provide ranges only for the violation of general conditions, 37 Pa. Code § 75.4, and require that special condition violations "be dealt with at least as severely as the least serious of the general conditions. . . ." 37 Pa. Code § 75.3(f).

Recommitment time for the least serious violation of a general condition is three to six months, but that period is stated as a minimum. 37 Pa. Code § 75.4. Thus, the board did not violate its own regulations in imposing the ten-month-plus recommitment time.

Accordingly, we affirm.

Order

Now, May 17, 1983, the orders of the Pennsylvania Board of Probation and Parole rendered on October 9, 1980 and November 24, 1980 are affirmed.

Disposition

Affirmed.


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