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TYRONE MANUEL v. COMMONWEALTH PENNSYLVANIA (08/10/83)

decided: August 10, 1983.

TYRONE MANUEL, 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 Tyrone Manuel, Parole No. 9671G, dated November 4, 1982.

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 Rogers.

Author: Rogers

[ 76 Pa. Commw. Page 271]

On January 27, 1983, Tyrone Manuel filed a petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) made November 3, 1982, revoking his parole and recommitting him as a technical parole violator for violating two conditions of his parole. The Board has filed a motion to quash the petition for review as untimely filed. We will grant the motion.

The petitioner was charged with the violation of three conditions of his parole and, after a full Board hearing, was found by the Board to have violated two of those conditions -- the failure to notify his parole agent within 72 hours of an arrest and the possession of firearms. The November 3, 1982 order reads pertinently as follows:

Recommit as a TPV [technical parole violator] when available to serve 18 months for violations of conditions 5 and 9. Evidence relied

[ 76 Pa. Commw. Page 272]

    on: testimony of Agent Williams, your admission and police property receipt. Presumptive range for conditions 5 and 9 is 6 to 18 months. Reasons: 1. Violation of conditions 5 and 9 established. 2. Long period of delinquency. 3. Weapon involvement. 4. History of parole failure.

On November 15, 1982, the petitioner filed a timely request for administrative review with the Board pursuant to 37 Pa. Code § 71.5(h) which provides:

(h) When any errors under this chapter are alleged subsequent to the Board's order, the parolee, by his attorney unless he is unrepresented, may apply to the Board within 30 days of the entry of the order for appropriate review and relief. Such application shall set forth specifically the factual and legal basis for the allegations. When a timely request for administrative review of an order has been filed, the order will not be deemed final for purposes of appeal until the Board has mailed its response to the request for administrative review. This subsection supercedes 1 Pa. Code § 35.226 (relating to final orders). (Emphasis added.)

On December 14, 1982, the Board denied the petitioner's request for administrative relief both in a letter which quoted the Board's November 3, 1982 order and by an order which stated: "No change." No claim is made by ...


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