Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Eugene Gundy, No. 2359-G, dated December 20, 1982.
James T. Huber, 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 Williams, Jr.
[ 82 Pa. Commw. Page 619]
This is a petition by Eugene Gundy (petitioner) seeking review of an administrative order of the Pennsylvania Board of Probation and Parole (Board) denying administrative relief from a Board recommitment order. Petitioner alleges the Board's action which recommits him as a technical violator and as a convicted violator for a new conviction based on the same conduct violates the prohibitions against double jeopardy contained in both the Federal and Pennsylvania Constitutions.*fn1
The petitioner was convicted of Possession with Intent to Deliver a Controlled Substance*fn2 and Possession of a Controlled Substance*fn3 and sentenced to a term of twenty-one months to fifty-nine months, twenty-nine
[ 82 Pa. Commw. Page 620]
days, by the Court of Common Pleas of Lehigh County. The Board paroled petitioner on that sentence on May 27, 1980.*fn4
On December 21, 1981, petitioner was arrested by Lehigh County authorities on charges of Aggravated Assault,*fn5 Simple Assault,*fn6 Terroristic Threats,*fn7 and Prostitution.*fn8 The Board lodged its warrant and detainer against petitioner the same day and petitioner remained incarcerated in Lehigh County Prison.
The Board charged petitioner with technical parole violations and held a Violation Hearing at the Lehigh County Prison. The Board recorded an administrative order on May 19, 1982 recommitting petitioner as a technical violator for 12 months backtime, when available, for violation of general parole condition 5C. General parole condition 5C requires that parolees refrain from any assaultive behavior. 37 Pa. Code § 63.4(5)(iii).
Petitioner was convicted in the Court of Common Pleas of Lehigh County on August 23, 1982 of Simple Assault and Prostitution and was sentenced to a term of twenty-three months probation. Following petitioner's conviction, the Board afforded him a Revocation Hearing at Lehigh County Prison charging that petitioner was now in direct violation of his parole by committing a crime for which he was convicted while serving a parole term. On October 29, 1982 ...