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THOMAS O'HARA v. COMMONWEALTH PENNSYLVANIA (01/31/85)

decided: January 31, 1985.

THOMAS O'HARA, 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 Thomas O'Hara, Parole No. 2177-K.

COUNSEL

Bruce S. Miller, 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. Senior Judge Kalish concurs in the result only.

Author: Williams

[ 87 Pa. Commw. Page 358]

Petitioner, Thomas O'Hara (O'Hara), petitions for review of an Order of the Pennsylvania Board of Probation and Parole (Board), dated March 5, 1982, which recommits him to prison as a convicted parole violator.*fn1 We affirm.

[ 87 Pa. Commw. Page 359]

The facts of this case are somewhat complex and the record presents the following scenario. O'Hara was originally sentenced in 1975 by Judge Acker of the Court of Common Pleas off Mercer County to a term of two and one-half to five years. That sentence was imposed as a result of O'Hara's pleading guilty to the charges of Simple Assault,*fn2 Terroristic Threats,*fn3 Felonious Restraint,*fn4 and Criminal Conspiracy.*fn5 This sentence carried an effective date of February 22, 1975 and had an original maximum term expiration date of February 22, 1980. After completing an initial term of imprisonment, the Board granted O'Hara parole effective April 20, 1978, at which time he was released from the State Correctional Institution at Rockview (SCI-Rockview).

During the early morning hours of November 8, 1979, O'Hara and a friend, James Knox, went to the

[ 87 Pa. Commw. Page 360]

Hilton Hotel in Erie. O'Hara and Knox, both of whom had been drinking, became involved in an argument. The argument was broken up by a Hilton security guard but resumed a short time later when O'Hara tried to get Knox to leave. Knox told O'Hara that O'Hara would have to kill him to get him to leave. O'Hara then flipped a coin, took a pistol from his back pocket and shot Knox in the forehead. Knox died from the gunshot wound approximately sixteen hours later. Erie police apprehended O'Hara a short time after the shooting when his vehicle ran a red light. Arresting officers discovered a Raven .25 caliber automatic pistol under the driver's seat of O'Hara's vehicle.

O'Hara was charged with Murder,*fn6 Former Convict Not to Own a Firearm,*fn7 and Possession of an Instrument of Crime,*fn8 and confined at the Erie County Prison when he failed to post a $30,000 bond. The Board lodged its warrant the day of O'Hara's arrest but withdrew it on February 22, 1980 -- the original maximum term expiration date of the Mercer County sentence -- when O'Hara was not tried on the new criminal charges by that time. The Board relodged its warrant against O'Hara on April 22, 1980 after he was convicted of Third Decree Murder and Possession of an Instrument of Crime in the Court of Common Pleas of Erie County. Sentencing was deferred.

O'Hara requested a full Board hearing which was originally scheduled for June 17, 1980 at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh). O'Hara was personally notified of this hearing on June 10, 1980. The Board continued the June

[ 87 Pa. Commw. Page 36117]

, 1980 hearing at the written request of O'Hara's counsel, Jay S. Nedell, Esquire, due to a scheduling conflict of Mr. Nedell. The Board rescheduled O'Hara's Revocation Hearing for July 22, 1980 at SCI-Pittsburgh. O'Hara was notified of this hearing and the Board contacted Mr. Nedell's office the day prior to the hearing and was assured that Mr. Nedell would be present for O'Hara's Revocation Hearing. Mr. Nedell failed to appear and O'Hara refused to participate in the hearing when the Board refused to grant a further continuance. The Board held the hearing in absentia following which it ordered O'Hara recommitted as a convicted parole violator, when available, to serve his remaining unexpired term.*fn9

On September 9, 1981, O'Hara again appeared in Erie County Common Pleas Court and was convicted of the charge of Former Convict Not to Own a Firearm. O'Hara subsequently received a sentence of ten to twenty years on the Third Degree Murder conviction and a concurrent sentence of two and one-half to five years on the firearm conviction.

O'Hara wrote the Board on September 21, 1981 asking that the Board correct the "injustice" done to him when the Board refused to continue the July 22, 1980 Revocation Hearing and proceeded to hold that hearing in absentia. The Board treated O'Hara's letter as a request for administrative relief pursuant to 37 Pa. Code ยง 71.5(h) ...


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