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LEROY DAVIS v. COMMONWEALTH PENNSYLVANIA (09/21/84)

decided: September 21, 1984.

LEROY DAVIS, A/K/A BARRY HARRIS, 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 Leroy Davis, a/k/a Barry Harris, Parole Number 7176-P.

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 Craig, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 85 Pa. Commw. Page 279]

The petitioner, Leroy Davis, a/k/a Barry Harris, appeals here from an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from an order recommitting him as a technical and convicted parole violator.

On November 16, 1982, the petitioner, while on parole, was arrested and charged with the crimes of theft by deception, theft by unlawful taking, conspiracy, and receiving stolen property. He was thereafter convicted in the Philadelphia Municipal Court on January 27, 1983 of theft by deception, conspiracy, and receiving stolen property, and in the common pleas court on April 4, 1983, of theft by deception and theft by unlawful taking. Prior to the petitioner's court convictions, the Board had lodged a detainer against the petitioner and had conducted a preliminary hearing on November 30, 1982. The Board subsequently held a violation and revocation hearing on June 9, 1983, and

[ 85 Pa. Commw. Page 280]

    as a result of this hearing recommitted the petitioner as a technical and convicted parole violator to serve his unexpired term of two years. The petitioner requested administrative relief from the Board, which was denied, and the present appeal followed.

Initially, the petitioner argues that the June 9, 1983, hearing was not timely with respect to his technical parole violations and his Municipal Court convictions. While the petitioner concedes that the June 9th hearing was timely with respect to his April 4th convictions, he contends that the violation part of the June 9th hearing was not held within 120 days of the preliminary hearing as required by 37 Pa. Code § 71.2(11), and that the revocation part of this hearing was not held within 120 days of the date the Board learned of his Municipal Court convictions, as required by 37 Pa. Code § 71.4(2). In response to these arguments, the Board asserts that the petitioner, on November 30, 1982, signed a waiver of the preliminary hearing and a request for a continuance until the new criminal charges against him were resolved. Although the petitioner concedes that the Board scheduled a preliminary hearing on November 30, 1982, he argues that he was not present at that hearing due to another court appearance, and that some other person answered to his name and signed the waiver and continuance request forms. Our review of the record in this case indicates that these arguments were raised at the June 9th hearing, but that the Board failed to make any findings or conclusions in this regard. Unfortunately, the absence of findings on this issue requires that we order a remand since we cannot resolve the petitioner's timeliness arguments without a finding as to whether or not the petitioner was the person who in fact signed the waiver and continuance request forms at the November 30, 1982 hearing. Blair v. Pennsylvania Board of Probation and Parole, 71 Pa. Commonwealth Ct. 366,

[ 85 Pa. Commw. Page 281454]

A.2d 1186 (1983). If on remand it is found that the petitioner did sign the forms then he cannot complain that his violation/revocation hearing was untimely. See McCullough v. Pennsylvania Board of Probation and Parole, 76 Pa. Commonwealth Ct. 479, 464 A.2d 622 (1983); Jones v. Pennsylvania Board of Probation and Parole, 72 Pa. Commonwealth Ct. 14, 455 A.2d 778 (1983). If, however, it is found that the petitioner did not sign the waiver or continuance forms, then we must hold that the June 9, 1983 hearing was not timely with respect to the petitioner's technical violations and his Municipal ...


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