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EUGENE MCCLURE v. COMMONWEALTH PENNSYLVANIA (06/23/83)

decided: June 23, 1983.

EUGENE MCCLURE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Eugene McClure, Parole No. 2799M.

COUNSEL

John W. Packel, Assistant Defender, Chief of Appeals Division, with him Benjamin Lerner, 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

[ 75 Pa. Commw. Page 177]

In this administrative appeal, Petitioner*fn1 claims that his constitutional protection against double jeopardy and his constitutional right to due process afforded to him by the Constitutions of the United States and Pennsylvania*fn2 were violated by actions of the Board of Probation and Parole (Board) as hereinafter set forth.

[ 75 Pa. Commw. Page 178]

While on parole from a state correctional institution, after having served three years of a 3-7 year sentence, Petitioner was arrested for having a firearm in his possession. He was taken into custody and given a hearing by the Board as a technical parole violator.*fn3 The Board on September 18, 1981 recommitted Petitioner to serve twelve months as a technical parole violator. Thereafter, Petitioner was convicted in the Court of Common Pleas of Philadelphia County on charges relating to his possession of the same firearm at the same time as formed the basis for the Board's action on September 18, 1981. Following that conviction, the Board held another hearing and on May 25, 1982 entered an order recommitting Petitioner to serve 18 months as a convicted parole violator "for a total of 30 months backtime".

Petitioner contends that he was punished twice for the same violation which he alleges is impermissible in view of the constitutional protection afforded to him against double jeopardy. The double jeopardy clauses of the Pennsylvania and United States Constitutions are virtually identical -- no person shall, for the same offense, be twice put in jeopardy of life or limb. The application of the constitutional protection to given factual situations is not always clear. See Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (1980), cert. denied, 450 U.S. 1000 (1981) and Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979), cert. denied, 445 U.S. 952 (1980). We do think, however, that it is clear that double jeopardy does not apply to the facts in the case now before us.

Petitioner was sentenced on September 12, 1977 to a term of not less than three nor more than seven

[ 75 Pa. Commw. Page 179]

    years for robbery. That is the criminal offense with which Petitioner must contend if he would have us apply the constitutional protection against double jeopardy. A quick glance at the Board's actions subsequent to September 12, 1977 reveals that nothing it did affected Petitioner's original offense. He was not tried again for that offense nor was his sentence for that offense adjusted in any way which would put his life or limb in jeopardy. The Board's action was not the imposition of a new sentence but merely directed completion of the original judicially imposed sentence. See Robinson v. Department of Justice, 32 Pa. Commonwealth Ct. 77, 377 A.2d 1277 (1977). The sentence imposed for a criminal offense is the maximum sentence. The minimum sentence merely sets the date prior to which a prisoner may not be paroled.

Petitioner would have us extend the protection against double jeopardy to administrative actions taken by the Board but can find no cases to support his position. The obvious reason for lack of case law authority is that the language of the Constitutions clearly protects an individual from double punishment only where criminal prosecutions are involved. Callan v. Bureau of Traffic Safety, 19 Pa. Commonwealth Ct. 635, 339 A.2d 163 (1975) (no double jeopardy where an operator's license is revoked for the same criminal offense of driving under the influence); ...


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