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WAYNE HUGHES v. COMMONWEALTH PENNSYLVANIA (03/15/84)

decided: March 15, 1984.

WAYNE HUGHES, 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 Wayne Hughes, Parole No. 9839-J, dated February 11, 1983.

COUNSEL

Timothy P. Wile, 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 Williams, Jr., Doyle and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 81 Pa. Commw. Page 88]

Petitioner, Wayne Hughes, petitions for review of an administrative order of the Pennsylvania Board of Probation and Parole (Board) dated February 11, 1983.

While on parole, petitioner was arrested in Delaware County on new criminal charges on September 3, 1981. He pled guilty to the new charges on February 2, 1982, and, subsequently was sentenced to a term of one to four years on the new charges.

The Board scheduled a full revocation hearing for September 29, 1982. The Notice of the Charges and Hearing, which charged Mr. Hughes with the new criminal conviction, erroneously stated that he had been arrested and convicted in Chester County rather than in Delaware County. A representative of the Board presented certified documents from the Court of Common Pleas of Delaware County to support the charges. However, petitioner objected because notice of the conviction stated that it occurred in Chester County rather than Delaware County. Petitioner, therefore, objected to the admission of the documents. The Board took no evidence regarding the new conviction and took petitioner's objection under advisement, electing to notify him of its decision following deliberation with the Board's counsel.

[ 81 Pa. Commw. Page 89]

The Board held the rehearing for the full Board Revocation Hearing on February 1, 1983. Again, a representative of the Board read into the record information concerning the new conviction of the petitioner and presented certified copies of the conviction. Petitioner objected to this hearing on the grounds of double jeopardy, res judicata and untimely notice. The Board overruled these objections and proceeded with the hearing.

On February 11, 1983, the Board ordered the petitioner to be recommitted as a convicted parole violator and to serve the initial unexpired two to four year term from which he had been paroled.

Petitioner filed a petition for administrative review and relief on March 3, 1983, raising the same objections as had been raised at the February 1, 1983 hearing. The Board denied administrative relief and this petition for review followed.

Petitioner contends that the principle of res judicata prohibited the Revocation Hearing held February 1, 1983. The petitioner argues that the Board had conducted a full hearing on the merits in a previous full Board Revocation Hearing held September 29, 1982. Thus, he argues the parties should not be permitted to litigate matters already settled by a prior adjudication. The principle of res judicata however, applies to a final adjudication and the full Board Revocation Hearing held September 29, 1982, was not a final adjudication. No determination was made at that time; rather the Board took the objection by petitioner concerning the admission of the records under advisement. Subsequently, ...


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