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EARL MORRIS v. COMMONWEALTH PENNSYLVANIA (11/27/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 27, 1985.

EARL MORRIS, 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 Earl Morris, Parole No. 1326-M, dated November 13, 1984.

COUNSEL

Charles J. Kroboth, Jr., Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 93 Pa. Commw. Page 219]

Earl Morris (Petitioner) asks for review of the denial of his petition for administrative review and relief by the Pennsylvania Board of Probation and Parole (Board) from the Board's September 14, 1984 order recommitting him as a convicted parole violator to serve his unexpired term of one year, ten months and five days.*fn1

On October 3, 1983, the Petitioner was arrested in New Jersey and charged with possession of a handgun*fn2 and possession of prohibited devices.*fn3 These charges arose from his having in his possession a tear gas pen gun which was loaded with one live .22 caliber, extra long cartridge loaded with bird shot.*fn4 The Board lodged a detainer against the Petitioner on November 28, 1983 and he pleaded guilty to the possession of a handgun charge on February 21, 1984. He then was given $300 fine and a sentence of three years in a New Jersey State Prison, but the sentence was suspended with credit for time served. He was then placed on two years' probation concurrent with a federal parole. The charge regarding the possession of the prohibited devices was dismissed.

On August 28, 1984, the Petitioner received a Full Board Revocation Hearing at which he was represented by counsel and after which the Board issued the recommitment order here involved.

[ 93 Pa. Commw. Page 220]

Contending that the Board's September 18, 1984 recommitment order should be set aside, the Petitioner argues that the Board erred in computing his backtime by concluding that his New Jersey possession of a handgun conviction was most closely analogous to a violation of the Pennsylvania Uniform Firearms Act*fn5 (U.F.A.) which carries a presumptive range of eighteen to twenty-four months, 37 Pa. Code § 75.2, and that there is no Pennsylvania crime to which the New Jersey conviction can be properly analogized.*fn6 He argues that his pen gun does not fall within the definition of a "firearm" under the U.F.A.*fn7 and that the Board did not rely on any of the record evidence relative to the presence of a .22 caliber bullet in the pen gun when he was arrested.

As the Board points out, however, the Petitioner's argument overlooks the effect of the provisions of 37 Pa. Code § 75.1(e) in this matter. That section of the Board's regulations provides that

[t]he severity ranking of crimes listed in § 75.2 (relating to presumptive ranges) is not intended to be exhaustive, and the most closely related crime category in terms of severity

[ 93 Pa. Commw. Page 221]

    and the presumptive range will be followed if the specific crime which resulted in conviction is not contained within the listing.

Clearly, under the interpretation proffered by the Board, this regulation supplies ample authority for the procedure followed by the Board in calculating the Petitioner's backtime. And, inasmuch as an agency's interpretation of its own regulations is entitled to controlling weight unless plainly erroneous or inconsistent with the regulation or statute,*fn8 and we find no such infirmities here, our scope of review*fn9 compels our affirmance of the Board's action.

Order

And Now, this 27th day of November, 1985, the order of the Pennsylvania Board of Probation and Parole, dated November 13, 1984 at Parole No. 1326-M, denying administrative relief is affirmed.

Disposition

Affirmed.


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