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MICHAEL MCSORLEY v. COMMONWEALTH PENNSYLVANIA (08/10/83)

decided: August 10, 1983.

MICHAEL MCSORLEY, 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 Michael McSorley, SCIR No. F-9647, Parole No. 7913-M.

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 Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 76 Pa. Commw. Page 258]

Michael McSorley (petitioner) appeals from an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief.*fn1

While on parole, the petitioner was arrested on November 10, 1980, and he was subsequently convicted on April 30, 1981 of possession of a firearm without a license and of violating The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act).*fn2 A revocation hearing was held on June 1, 1981, by a hearing examiner of the Board, the result of which was a recommendation to "recommit

[ 76 Pa. Commw. Page 259]

[the petitioner] as a convicted parole violator when available to serve 24 months on backtime for possession of a weapon ". (Emphasis added.) The hearing examiner, noting that the petitioner had been convicted of violating The Controlled Substance Act and also convicted for possession of a firearm without a license, then stated:

Presumptive range for a conviction of violation of uniform firearm act is 18 to 24 months. We did not use the presumptive range for violation of controlled substance, drug and device act [sic] because there is no indication of what the drugs were and what schedule they are in.

The Board, on July 9, 1981, apparently accepting the recommendation of the hearing examiner, ordered the petitioner to be recommitted "as a convicted parole violator when available to serve 24 months. . . ." The Board also stated:

Evidence Relied On: New conviction in a court of record, certified copy of the Delaware County Court Order relating to the conviction. Presumptive range for Possession of a Firearm Without a License to 18 to 24 months. Reasons: 1. New conviction in a court of record established. (Emphasis added.)

On September 16, 1981, the Court of Common Pleas of Delaware County granted the petitioner's motion in arrest of judgment on the firearms conviction, and ordered that "the defendant is discharged from any custody in which he may be ...


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