Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Irvin Sharp, dated December 2, 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 Blatt, Williams, Jr., and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 78 Pa. Commw. Page 442]
Petitioner Irvin Sharp has filed a petition for review with this Court challenging a decision of the Pennsylvania Board of Probation and Parole (Board). The Board revoked petitioner's parole and recommitted him to prison as a convicted parole violator.
In April of 1976, petitioner was sentenced to a term of three to ten years of imprisonment on a charge of robbery, and was released on parole from that conviction on July 11, 1979. On December 29, 1979, he was arrested in Philadelphia on new criminal charges which included robbery, theft, and possession of an instrument of crime, and was lodged at the Philadelphia Detention Center in lieu of bond. The Board filed a parole violation warrant against Sharp on December 31, 1979, citing the arrest on these new charges. A preliminary hearing was held in Philadelphia Municipal Court on January 18, 1980, at which time it was determined that a prima facie case against petitioner had been established. As a result of this determination, the Board ordered that petitioner be detained pending disposition of the criminal charges.*fn1
Sharp was convicted on the charges of robbery and possession of an instrument of crime on May 27, 1980, and was confined at the Philadelphia County Prison. Sentencing on the charges was deferred. On May 29, 1980, he requested a full Board parole revocation hearing, which was scheduled to convene on September 12,
[ 78 Pa. Commw. Page 4431980]
. On June 27, 1980, however, the petitioner requested that the hearing be continued pending sentencing and the disposition of any post trial motions. He signed a waiver of his right to a full Board hearing on July 11, 1980.*fn2
On September 9, 1980, Sharp was sentenced on the charges of robbery and possession of an instrument of crime to a term of two to five years at the State Correctional Institute at Graterford. He was transferred from the Philadelphia County Prison to Graterford on September 12, 1980.
A revocation hearing was scheduled for September 25, 1980. On that date, the petitioner, who is indigent, requested a continuance in order to obtain counsel to represent him at the hearing. On October 9, 1980, the date to which the hearing was rescheduled, Sharp again requested a continuance because he had been unable to secure counsel. The hearing was held before a Board Hearing Examiner on October 23, 1983, despite the fact that petitioner still had not secured counsel and did not wish to proceed in the absence thereof. Based on the Hearing Examiner's recommendation, the Board rendered a decision, on December 4, 1980, revoking petitioner's parole and recommitting him to prison, as a convicted parole violator, to serve the balance of his original sentence.
Thereafter, pursuant to 37 Pa. Code § 71.5(h), Sharp applied to the Board for administrative review of its order of December 4, 1980. On May 20, 1982, following the denial of his application, he ...