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MICHAEL MARSH v. COMMONWEALTH PENNSYLVANIA (12/19/84)

decided: December 19, 1984.

MICHAEL MARSH, 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 Michael Marsh, Parole No. 9665-M.

COUNSEL

Timothy P. Wile, Assistant 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. Dissenting Opinion by Judge Barry.

Author: Doyle

[ 86 Pa. Commw. Page 483]

Petitioner Michael Marsh appeals from the Order of the Pennsylvania Board of Probation and Parole (Board) which recommitted Petitioner to serve twenty-four months backtime as a technical parole violator.

[ 86 Pa. Commw. Page 484]

On November 12, 1981, Petitioner was paroled from his sentence for robbery on the condition that he enroll in an out-patient drug treatment program. After a subsequent arrest for technical parole violations, Petitioner's parole agent imposed the following special condition:

[Y]ou must successfully complete the entire residential treatment program at Gaudenzia. . . . Upon discharge for any reason, you must report to agent . . . within 24 hrs. or no later than the next business day. (Emphasis in original.)

Petitioner attended the above mentioned program until December 20, 1982, when he was discharged because he had divulged confidential information about another patient. Following a violation hearing, the Board recommitted Petitioner to serve twelve months backtime for violations of general parole conditions, and an additional twelve months backtime for the violation of the special parole condition quoted above. The Board denied Petitioner relief upon administrative review, and appeal to this Court followed.

On appeal Petitioner challenges only that portion of the Board's order which recommitted him to twelve months backtime for violation of the special parole condition. Although Petitioner concedes that he did not "successfully complete" the Gaudenzia program, he argues that he did not violate the "spirit and intent" of the condition requiring him to receive drug treatment, because his discharge from Gaudenzia was not the result of drug abuse, and because he attempted to seek continued treatment after his discharge.

The Board has been granted broad discretion in parole matters, Thompson v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 153, 466 A.2d ...


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