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ARLENE PERRY v. COMMONWEALTH PENNSYLVANIA (12/31/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 31, 1984.

ARLENE PERRY, 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 the case of Arlene Perry, Parole No. 6869-P, dated November 29, 1983.

COUNSEL

Jayne Shinko, 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 and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 86 Pa. Commw. Page 549]

Arlene Perry appeals an order of the Pennsylvania Board of Probation and Parole (Board) denying her petition for Administrative Relief as to a Board order which recommitted her as a convicted parole violator: thirty months for the offense of robbery and eighteen months for the offense of burglary.

Perry, acknowledging that she received a full and complete hearing in the instant case and making no contest as to the length of her recommitment based upon the robbery conviction, contends that the commitment for the burglary is illegal because (1) all charges, including the ones on which she has been recommitted, occurred as a part of the same criminal episode and (2) since the Board's regulation, 37 Pa. Code 75.1(d), provides that "presumptive ranges are intended to directly relate to the severity of the crime for which the parolee has been convicted," the Board is limited to the presumptive range applicable to the more serious of the charges, and, since robbery has a more extensive presumptive range than burglary, the Board is limited to recommitting only for the robbery conviction. We find no merit in either of these contentions and will affirm.

The Board relies upon, and urges as controlling here on both issues, our decision in Corley v. Pennsylvania Board of Probation and Parole, 83 Pa. Commonwealth Ct. 529, 478 A.2d 146 (1984). Corley was recommitted as a convicted parole violator for eleven

[ 86 Pa. Commw. Page 550]

    months backtime as a result of his conviction for simple assault.*fn1 There had been a prior revocation hearing as a result of a theft conviction for which the Board had ordered Corley recommitted for six months backtime. Corley contended that since the combination of the two commitments amounted to seventeen months, the eleven months backtime was harsh and excessive and, therefore, an abuse of discretion; and that "the Code does not permit the board to order recommitment for each new criminal conviction, but that the board may recommit only for the presumptive range applicable to the most serious crime of which the parolee stands convicted." Id. After discussion and examination of pertinent provisions of the Code, including comparison of Section 75.1 as to ranges for convicted parole violators with Section 75.3(e) as to technical violations,*fn2 we stated:

Section [75.3(e)] provides: "When multiple violations occur, the presumptive range will be used which has the highest backtime range of those conditions violated."

Significantly, the Code does not contain a parallel convicted parole violator regulation directing the board to apply the presumptive range which has the highest backtime of those crimes of which the parolee stands convicted.

A fundamental principle of statutory construction is that, where a section of a statute contains a given provision, the omission of that provision from a similar section is significant to show a different intention existed. Commonwealth

[ 86 Pa. Commw. Page 551]

    v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979); 1 Pa. C.S. ยง 1921.

We must conclude that the omission of a multiple conviction provision from section 75.1 indicates that the board has discretion to recommit for each separate criminal conviction, and that here, therefore, the board did not abuse its discretion by ordering Corley recommitted for eleven months backtime as a result of his conviction of simple assault, which has a nine-to-fifteen-month presumptive range.

Although Corley is concerned with two separate events, whereas both convictions in this case arise out of conduct on one occasion,*fn3 so that this case may be one of first instance in this regard, we are persuaded that the logic in Corley is equally applicable here. Accordingly, we hold that the Board may impose separate recommitment terms for each conviction while on parole although the separate convictions involved arise out of the same criminal event.*fn4 To hold otherwise, of course, would be to rule that one who robs and does so by committing the additional crime

[ 86 Pa. Commw. Page 552]

    of burglary, thereby committing two crimes, must be viewed for parole violation purposes as a no more serious convicted violator than one who only robs.

In conclusion, since we hold that separate convictions may support separate recommitments within the guidelines, although arising out of the same criminal conduct; and find, as in Corley,*fn5 no statutory or regulation provision requiring recommitment on only the most serious of criminal convictions arising out of the same criminal episode; and since we find no other error on the part of the Board in levying the recommitment terms, we will affirm.

Order

Now, December 31, 1984, the order of the Pennsylvania Board of Probation and Parole entered at Parole No. 6869-P, on December 1, 1983, is affirmed.

Disposition

Affirmed.


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