Appeal from the Order of the Board of Probation and Parole in case of Mackey L. Wright, dated September 10, 1981.
Kimberly Hamilton, Public Defender, 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 MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.
[ 85 Pa. Commw. Page 503]
Before this Court is an appeal by Mackey L. Wright (Petitioner) from a denial by the Pennsylvania Board of Probation and Parole (Board) of his request for administrative relief stemming from a decision to recommit Petitioner as a convicted parole violator.
Petitioner, on parole at the time, was arrested on November 17, 1980, by the Philadelphia Police and charged with, inter alia, recklessly endangering another person. He was convicted of that charge in the Court of Common Pleas of Philadelphia County on January 13, 1981 and a sentence of "time-in" to twenty-three months was imposed. An appeal from that conviction was lodged by Petitioner but it was withdrawn on May 22, 1981, at which time Petitioner was paroled from county custody. Prior thereto, and following a full Board hearing, Petitioner was sentenced by the Board to serve twelve months backtime on his earlier conviction for a technical violation of his parole. Subsequent to Petitioner's county parole he received another full Board hearing, after which the Board reaffirmed its decision to recommit Petitioner as a technical violator and also imposed a sentence of yet another twelve months backtime because of Petitioner's status as a convicted parole violator. The cumulative twenty-four months of backtime modified the maximum expiration date on Petitioner's original sentence to May 18, 1987. Petitioner petitioned to the Board for administrative relief from its decision imposing backtime on the basis of his being a convicted parole violator. Relief was denied and the appeal to this Court followed.
In his appeal Petitioner raises the issue of whether the Board violated his rights to due process by relying on undisclosed information in rendering its decision. That decision stated:
[ 85 Pa. Commw. Page 504]
Reaffirm recommitment action of 4-27-81 and now recommit as a convicted parole violator to serve 12 months for a total of 24 months on backtime. Evidence relied on: Conviction in a court of record. Your testimony. PBPP records #257 and #501. Court commitment papers. Conviction in a court of record for the offense of Recklessly Endangering Another Person has a presumptive range of 12 to 18 months. Reasons: Conviction in a court of record. Previous recommitment as a technical parole violator.
A review of the record certified to this Court by the Board fails to disclose either "PBPP records #257 and #501" or court commitment papers. Moreover, the transcript of the hearing in question reveals the following colloquy between Petitioner's counsel at that time and Board member William L. Forbes:
Atty McGee: Prior to Mr. Wright presenting any evidence, I would ask the Court pursuant to Morrissey vs. Brewer, 408 U.S. 471 for a disclosure to the parolee and the evidence against him that the Board might consider any evidence consider other than what I have been presented here. Uh uh I would ask that that be disclosed to him to that he he could refute what's contained in any information the Board might consider in revoking his parole.
Mr. Forbes: Okay in this case counsel the Board is considering only the fact as indicated, that Mr. Wright has sustained a conviction while serving time on parole. Which gives the Board the jurisdictional right to either revoke parole or to ...