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COMMONWEALTH PENNSYLVANIA v. PAUL D. FAIR (06/21/85)

submitted: June 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
PAUL D. FAIR, APPELLANT



Appeal from PCHA Order, Court of Common Pleas, Criminal Division, Lebanon County, Nos. 282 & 283, 1982.

COUNSEL

Robert B. Keys, Jr., Lebanon, for appellant.

John E. Feather, Jr., Assistant District Attorney, Lebanon, for Commonwealth, appellee.

Cavanaugh, Cercone and Lipez, JJ.

Author: Cavanaugh

[ 345 Pa. Super. Page 63]

Appellant, Paul D. Fair, appeals from an order following a finding of violation of parole. His claim on appeal is that the parole violation order is (a) violative of double jeopardy principles; (b) excessive; and, (c) subject to vacation since representation at the hearing was ineffective. We find no merit to these contentions and affirm the order.

In October, 1982, Fair was given four to twenty-three month concurrent sentences upon a conviction in Lebanon County. He was paroled after the expiration of the minimum

[ 345 Pa. Super. Page 64]

    sentence. In July, 1984, he was found to be in technical violation of his parole for voluntarily relinquishing his employment and for providing false information to his parole officer. At that time, the trial court sentenced Fair to concurrent periods of eight to twenty-three months incarceration. Thereafter, appellant petitioned for modification of the violation of parole sentence claiming that the new sentence violated his rights against double jeopardy. The court granted the petition for modification, but again found Fair to be in violation of parole. The court then revoked the parole previously granted, and ordered appellant recommitted "for the remainder of his maximum sentence, being the balance of the twenty-three months (original sentence)."

Appellant was correct in his attack upon the original order upon the violation of parole. The power of the court after a finding of violation of parole in cases not under the control of the State Board of Parole is "to recommit to jail . . . ." Act of June 19, 1911, P.L. 1059 § 1, as amended, 61 P.S. § 314. There is no authority for giving a new sentence with a minimum and maximum. After recommitting the parolee, the court retains the power to grant reparole.*fn1 Id. The grant to parole or reparole is subject to the court's discretion as to what "may seem just and proper." Id. In such cases the defendant, when found in violation of parole, is not entitled as of right to credit for time spent on parole without violation. Commonwealth v. Michenfelder, 268 Pa. Super. 424, 408 A.2d 860 (1979); Commonwealth v. Broden, 258 Pa. Super. 408, 392 A.2d 858 (1978). Given this setting, and the limited alternatives open to a court upon finding of parole violation, we do not see the court's order on reconsideration of the parole violation as being excessive. The court found the violations, though technical, to be serious:

THE COURT: First of all let me note that primarily the only thing that I would take issue with, with regard to

[ 345 Pa. Super. Page 65]

    counsel for Defendant's comments was the seriousness with which the Court would consider the individual acts which were found to be in violation of the Defendant's parole, and that included the determination of a violation of Rule 7 which in essence simply provides that when you are asked by the probation or parole department to provide information that you do it and you provide truthful information. As the testimony on July 6th revealed, in addition to voluntarily relinquishing employment ...


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