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RICKY COUNTS v. COMMONWEALTH PENNSYLVANIA (01/30/85)

decided: January 30, 1985.

RICKY COUNTS, 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 Ricky Counts, Parole No. 8568-K.

COUNSEL

Lewis J. Bott, Assistant Public Defender, 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 Rogers and Williams, Jr., and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 87 Pa. Commw. Page 278]

This is an appeal by Ricky Counts (Counts) who petitions for review of an Order of the Pennsylvania Board of Probation and Parole (Board) which denies his application for parole.*fn1 We affirm.

[ 87 Pa. Commw. Page 279]

Counts was originally sentenced in 1976 to a term of three to seven years by the Court of Common Pleas of Dauphin County following his conviction for the offense of Robbery.*fn2 This sentence had an initial maximum term expiration date of July 4, 1983. Counts was granted parole on this sentence effective March 20, 1980 which allowed him to begin serving a detainer sentence.*fn3 The Board granted Counts parole on the detainer sentence effective September 20, 1980 at which time he was released from confinement.

[ 87 Pa. Commw. Page 280]

A short time after his release from prison, Counts was arrested by Dauphin County authorities and charged with Prostitution.*fn4 Following his conviction on that charge, the Board revoked Counts' parole and recommitted him to prison as a convicted parole violator to serve nine months back time. Counts was again granted parole on the Robbery sentence effective June 11, 1982 at which time he was released from custody. On July 23, 1982, Counts was arrested by Harrisburg Police and charged with Prostitution. He was convicted of that charge in Dauphin County Common Pleas Court on October 21, 1982 and sentenced to a term of four to twelve months. The Board afforded Counts a Revocation Hearing at Dauphin County Prison after which it again revoked his parole and ordered him recommitted as a convicted parole violator to serve nine months back time. The Board set a tentative reparole date of August 8, 1983 and extended the maximum term expiration date of Counts' Robbery sentence to February 5, 1985.*fn5

On August 5, 1983, Counts was interviewed by a member of the Board for possible parole. Prior to that interview, Counts had been charged with the offense of Assault by Prisoner*fn6 and had received a prison misconduct. As a result of that behavior and Counts' poor institutional record, the Board set back Counts' tentative reparole date to April 4, 1984. Between October 20, 1983 and January 31, 1984, Counts received an additional five institutional misconducts.

[ 87 Pa. Commw. Page 281]

On March 8, 1984, Counts was interviewed for possible parole by Board member William Forbes. As a result of that interview, on April 23, 1984 the Board recorded an Order rescinding Counts' tentative reparole date of April 4, 1984 and denied him parole on the Dauphin County Robbery sentence.*fn7 Counts sought administrative relief from the Board regarding its denial of his parole application. The Board informed Counts that its administrative relief regulation, 37 Pa. Code ยง 71.5(h), applies ...


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