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MICHAEL ANDERSON v. COMMONWEALTH PENNSYLVANIA (03/02/84)

decided: March 2, 1984.

MICHAEL ANDERSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal in case of Michael Anderson, dated June 15, 1982.

COUNSEL

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.

Author: Williams

[ 80 Pa. Commw. Page 575]

Michael Anderson (petitioner) petitions for review of the denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board) from its order of June 15, 1982 recommitting him to serve two years, one month and twenty-eight days backtime and reestablishing his maximum term expiration date (maximum) as January 23, 1988.

On January 24, 1973 the petitioner was sentenced to a term of one year, three months to ten years (original sentence) by Judge Stout of the Court of Common Pleas of Philadelphia County for Murder-Second Degree. His minimum term expiration date (minimum) was October 10, 1973 and the maximum was July 10, 1982. He was paroled on February 7, 1974; but when his whereabouts became unknown, the Board declared him to be delinquent as of August 4, 1974. Following his apprehension, the Board recommitted him as a technical parole violator (TPV), effective February 19, 1979 and recomputed his maximum as January 16, 1983.

The petitioner was reparoled, effective March 5, 1980; however, he was again arrested and recommitted by the Board as a TPV, effective July 28, 1980. No adjustment was made to his maximum at that time.

Effective June 17, 1981, the petitioner was again reparoled and on November 5, 1981, he was arrested by the Montgomery County authorities (county authorities)

[ 80 Pa. Commw. Page 576]

    on new criminal charges. On November 18, 1981, the Board filed a detainer against the petitioner based on these new criminal charges and for technical parole violations. After being convicted on March 18, 1982 in the Court of Common Pleas of Montgomery County, he was sentenced to a term of time served to twenty-three months plus two years of county probation. He remained in the custody of the county authorities thereafter until the Board, after conducting the requisite hearing, ordered him recommitted as stated above.

In recomputing the petitioner's backtime, the Board did not credit him for the period which he spent in the custody of the county authorities after March 18, 1982 and in reestablishing his maximum, the Board included the periods which he spent at liberty when he was paroled in 1974 and in 1980. The petitioner asserts here that the Board erred in both instances.

In reviewing an adjudication by the Board, we are limited to a determination of whether it is supported by substantial evidence, is in accordance with the law and is observant of the petitioner's constitutional rights. Stevenson v. Pennsylvania Board of Probation and Parole, 74 Pa. Commonwealth Ct. 540, 460 A.2d 409 (1983). The questions presented by the petitioner are whether the period which he spent in the custody of the county authorities after March 18, 1982 should be credited against his original sentence and ...


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