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JOHN OLIVER v. COMMONWEALTH PENNSYLVANIA (06/04/85)

decided: June 4, 1985.

JOHN OLIVER, JR., 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 John Oliver, Jr., dated September 16, 1983.

COUNSEL

John Oliver, Jr., petitioner, for himself.

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 Barry. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barry

[ 89 Pa. Commw. Page 636]

John Oliver, Jr. (petitioner) petitions for review of the denial of his request for administrative relief by the Pennsylvania Board of Probation and Parole (Board) from its decision to recommit him as a technical parole violator (TPV) for thirty-six months backtime.

According to the record certified by the Board, petitioner was paroled on July 1, 1977, from a ten to twenty year sentence imposed after his conviction in the Court of Common Pleas of Philadelphia County for Aggravated Assault and Battery. In May, 1979, he was arrested, and subsequently convicted in the Court of Common Pleas of Montgomery County, on charges of burglary. He was sentenced to six to twenty-three months for that offense. Petitioner had several arrests between the 1979 conviction and the charges which initiated this case; however, his only conviction during that time was for driving under the influence of alcohol for which he was fined $50.00.

While still on parole, petitioner was arrested on June 25, 1983, by the Sex Crimes Unit of the Philadelphia Police on charges of Rape, Indecent Assault, Indecent Exposure, Simple Assault, Recklessly Endangering Another Person and Unlawful Restraint. After notification of petitioner's arrest, his parole agent recommended on June 27, 1983, that petitioner be detained pending disposition of the criminal charges and that he be recommitted as a TPV for violating condition No. 5-c of his parole which required him to refrain from any assaultive behavior. Following a preliminary hearing on July 6, 1983, at which probable cause to detain was found, the Board detainer was

[ 89 Pa. Commw. Page 637]

    effectuated. Thereafter, on August 17, 1983, the Board issued a notice to petitioner advising that his revocation hearing had been scheduled for September 1, 1983. The hearing notice contained petitioner's correct parole number and his institution number from his Montgomery County conviction, F-6850. The use of F-6850 was incorrect because his parole from that sentence had expired. The hearing notice also contained the following notice of charges:

You are charged with the following:

Condition No. 5-c: "You shall refrain from any assaultive behavior."

On or about 6/15/83, you did drag Karen Potter (Jackson) a retarded person, inside of your apartment, strike her on ...


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