Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Willie Wiley, Parole No. 5836-C, dated September 17, 1980.
Timothy P. Wile, Assistant Public Defender, for petitioner.
Robert A. Greevy, Chief Counsel, with him Arthur R. Thomas, Assistant Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Williams, Jr., Doyle and Blatt, sitting as a panel of three. Opinion by Judge Doyle.
[ 78 Pa. Commw. Page 198]
Before this Court is an appeal by Willie Wiley (Petitioner) from a denial by the Pennsylvania Board of Probation and Parole (Board) of his request for administrative relief. We affirm in part and reverse in part.
Petitioner, while on parole, was arrested by the Philadelphia Police Department and charged with, among other things, robbery and aggravated assault. He was afforded a preliminary and detention hearing by the Board on September 19, 1978, relative to technical violations of his parole, and probable cause was found to detain him pending the appropriate hearing. The Board subsequently scheduled a hearing on Petitioner's technical parole violations for December 19, 1978. That hearing was continued until February, 1979, however, at the request of Petitioner. In the interim period, specifically January 31, 1979, Petitioner was convicted of the robbery and aggravated assault charges. The Board thus scheduled Petitioner, who had waived a full Board hearing, for hearings on February 9, 1979 on both his alleged technical violations of parole and whether he should have his parole revoked as a convicted parole violator. Again Petitioner requested a continuance, this time until March 27, 1979 pending sentencing on his January 31, 1979 convictions.
[ 78 Pa. Commw. Page 199]
On March 27, 1979, Petitioner once more requested a continuance, this one until further notice pending resolution of his post-trial motions. Petitioner was sentenced to a term of from two to four years for his robbery and aggravated assault convictions on May 23, 1979. The Board scheduled him for hearings on August 16, 1979 on both his technical violations and whether his parole should be revoked because of his conviction. The hearings were again continued at the request of Petitioner. On August 30, 1979, an examiner for the Board conducted the conviction revocation aspect of Petitioner's hearings and, upon the recommendation of the examiner, the Board later ordered Petitioner recommitted as a convicted parole violator. The examiner disqualified himself from conducting the technical violation aspect of Petitioner's hearing, however, because he was the same examiner who had conducted the preliminary hearing of September 19, 1978 as to those charges. Petitioner's hearing on those charges was not held until November 8, 1979, following which the Board further ordered Petitioner recommitted as a technical parole violator to serve an additional one year's time before becoming eligible for reparole. Petitioner applied to the Board in August, 1980 for administrative relief asserting, inter alia, that neither the revocation nor technical violation hearings were conducted within their respective 120 day time limits and that his recommitments for those violations should therefore be nullified. Relief was denied and the appeal to this Court followed in which Petitioner reasserts his charges.
With respect to the revocation hearing which led to Petitioner's recommitment as a convicted parole violator, its August 30, 1978 date was clearly timely. Where, as here, the parolee has waived a full Board hearing, the revocation hearing must be held within 120 days of the Board's receipt of official verification
[ 78 Pa. Commw. Page 200]
of the guilty verdict entered against the parolee. 37 Pa. Code § 71.4(2)(i). Any delay in the conducting of the hearing which is attributable to a continuance granted at the request of the parolee or his attorney, however, is excluded from the 120 day period. 37 Pa. Code § 71.5(i)(2). Thus, because of the aforementioned continuances granted Petitioner there were, at most, ninety-four days between Petitioner's January 31, 1979 conviction and his August 30, 1979 hearing which were chargeable to the Board.*fn1 This is well within the 120 day time limit and Petitioner's recommitment as a convicted parole violator must stand.
As for Petitioner's recommitment on technical violations of his parole, we are constrained to agree with Petitioner that the Board's hearing thereon was untimely. A technical parole violation hearing must be conducted within 120 days of the preliminary hearing pertaining to the violation charges. 37 Pa. Code § 71.2(11). In the case at bar the preliminary hearing was held for Petitioner on September 19, 1978 and his actual hearing, which was ultimately continued, was scheduled for December 19, ...