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DONALD HARDY v. COMMONWEALTH PENNSYLVANIA (02/01/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 1, 1985.

DONALD HARDY, 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 Donald Hardy, Parole No. 38476.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief Appellate and Mitchell A. Kaufman, Appellate counsel, 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 Palladino.

Author: Palladino

[ 87 Pa. Commw. Page 331]

Petitioner, Donald Hardy, appeals from an order of the Pennsylvania Board of Probation and Parole (Board) arguing that the Board erred in computing the back time Petitioner will serve upon his recommitment to incarceration as a technical and convicted parole violator.

On December 28, 1979, Petitioner was paroled from incarceration for a previous murder conviction for which he was serving a fifteen year sentence. On March 9, 1981, Petitioner was taken into custody under the Board's Warrant to Commit and Detain (detainer).*fn1 On April 28, 1981, Petitioner was arraigned in United States District Court for the Western District of Pennsylvania for violations of the Federal Firearms Act. Federal bail was set at $50,000. Petitioner never posted bail.

Petitioner was subsequently convicted of the federal charges and sentenced to serve concurrent two

[ 87 Pa. Commw. Page 332]

    and five year terms in a federal penitentiary. On July 1, 1983, Petitioner was released from federal custody and was recommitted to state prison for a term of 30 months under his original sentence for the murder conviction.

In computing Petitioner's back time, the Board gave him credit for the period of time, one month and nineteen days, from March 9, 1981 until April 28, 1981, during which he was incarcerated solely pursuant to the Board's detainer. Petitioner claims that he should have been credited with the period of time, 253 days, from March 9, 1981 until November 21, 1981, that he was in custody pending trial and sentencing under the federal charges.

Petitioner argues that he was ready, willing and able to satisfy the federal bail requirements but that to do so would have been a futile act since he would have still been subject to incarceration pursuant to the Board's detainer. Whether or not payment of Bail would have been a futile act with respect to Petitioner's release from incarceration, the law established by this Court and affirmed by the Supreme Court of Pennsylvania is clear:

[I]f the defendant/parolee is being held in custody only because of detainer lodged by the Board and has otherwise met requirements for bail on new criminal charges, then time spent in custody should be credited against the original sentence. If the defendant/parolee, however, remains incarcerated prior to the trial since he failed to satisfy bail requirements on new criminal charges, the time spent in custody should be credited to the new sentence.

Rivera v. Pennsylvania Board of Probation and Parole, 79 Pa. Commonwealth Ct. 558, 566, 470 A.2d 1088,

[ 87 Pa. Commw. Page 3331091]

(1984) (emphasis in the original), citing Mitchell v. Pennsylvania Board of Probation and Parole, 491 Pa. 291, 420 A.2d 1324 (1980); Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980); Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980); Sturtz v. Pennsylvania Board of Probation and Parole, 71 Pa. Commonwealth Ct. 71, 453 A.2d 1093 (1983); and Rodriques v. Pennsylvania Board of Probation and Parole, 44 Pa. Commonwealth Ct. 68, 403 A.2d 184 (1979).

Thus, had Petitioner posted federal bail and been incarcerated solely pursuant to the Board's detainer, the time spent in prison awaiting federal trial and sentencing would have been credited to his recommitment under his original sentence. Because he did not post bail, however, he was not incarcerated solely pursuant to the Board's detainer and therefore did not meet the prerequisite conditions for having the period from April 28, 1981, and November 21, 1981, credited to the time he will serve under recommitment for his original sentence.*fn2

Accordingly, we affirm the Board's order of October 28, 1981, as reaffirmed by the Board on July 29, 1983, recommitting Petitioner for a total of thirty months with credit received in the amount of one month and nineteen days for the time spent in confinement from March 9, 1981, until April 28, 1981, solely on the basis of the Board's detainer.

[ 87 Pa. Commw. Page 334]

Order

And Now, February 1, 1985, the Order of the Pennsylvania Board of Probation and Parole at Parole No. 38476 and dated August 3, 1983, is affirmed.

Disposition

Affirmed.


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