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THOMAS G. NICKENS v. COMMONWEALTH PENNSYLVANIA (12/06/85)

decided: December 6, 1985.

THOMAS G. NICKENS, 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 Thomas G. Nickens, Parole No. 1799-M, dated July 20, 1983.

COUNSEL

Robert B. Stewart, III, 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 Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Dissenting Opinion by Judge Palladino.

Author: Barbieri

[ 93 Pa. Commw. Page 315]

Thomas G. Nickens appeals here an order of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board parole revocation order. That revocation order revoked his parole and returned him to prison as a technical parole violator to serve eighteen months on backtime. We affirm.

The following facts are pertinent. Nickens was originally sentenced to a term of five to ten years in the Court of Common Pleas of Erie County as a result of his convictions for Robbery,*fn1 Criminal Attempt,*fn2 and Criminal Conspiracy.*fn3 The Board granted him parole on this sentence effective June 3, 1982 at which time he was released from the Erie Community Service Center (CSC). On November 10, 1982, two parole agents conducted a search of his residence which turned up a number of controlled substances and a sawed-off shotgun. The controlled substances were found in plain view, while the sawed-off shotgun

[ 93 Pa. Commw. Page 316]

    was discovered in the closet of the bedroom which Nickens shared with his girl friend. Nickens was taken into custody and the Board charged him with violating general parole conditions 5A*fn4 and 5B.*fn5 Erie County authorities also charged him with possession of a Prohibited Offensive Weapon*fn6 and Former Convict Not to Own a Firearm.*fn7 Nickens was eventually acquitted of the new criminal charges following a jury trial.

On April 5, 1983, the Board afforded Nickens a parole Violation Hearing at the Erie County Prison before a Board hearing examiner. At that hearing, Nickens' defense counsel moved for dismissal of the parole violation charge pertaining to the possession of the shotgun on the basis of Nickens' acquittal of the related criminal charges. The examiner denied that motion and proceeded to take evidence from both the parole agent and Nickens. While Nickens admitted that both the narcotics and the sawed-off shotgun were found in his residence, he denied ownership of the narcotics and ownership and knowledge of the shotgun. On May 10, 1983, the Board revoked his parole and ordered him recommitted to prison to

[ 93 Pa. Commw. Page 317]

    serve eighteen months on backtime for violation of general parole conditions 5A and 5B.*fn8 Nickens filed a request for administrative relief with the Board which was denied on July 20, 1983 and this appeal followed.

In this appeal, Nickens contends that (1) the Board is collaterally estopped from revoking his parole based on possession of a firearm where he was acquitted of the related criminal charges; (2) that the evidence does not support the finding that he violated his parole by being in possession of a firearm; (3) that the backtime mandated by the Board is excessive; and (4) that the revocation order itself is invalid in that all the evidence used against him was the product of the parole agents' warrantless ...


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