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JAMES WEYAND v. COMMONWEALTH PENNSYLVANIA (01/03/86)

decided: January 3, 1986.

JAMES WEYAND, 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 James Weyand, Parole No. 9136-P, dated January 21, 1985.

COUNSEL

Kenneth W. Johnson, for petitioner.

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

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 94 Pa. Commw. Page 33]

James Weyand petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board revocation order. That order reaffirmed a prior revocation order and set a new maximum term expiration date and tentative reparole date on his two to four year Somerset County sentence.

The following facts are pertinent. Weyand was originally sentenced in Somerset County Common Pleas Court on September 11, 1981 by Judge Norman A. Shaulis to concurrent terms totaling two to four years in the Somerset County Jail following his convictions for Theft*fn1 and Criminal Trespass.*fn2 That sentence carried a minimum term expiration date of August

[ 94 Pa. Commw. Page 342]

, 1983*fn3 and an original maximum term expiration date of August 2, 1985. On December 4, 1981, he again appeared before Judge Shaulis in Somerset County Common Pleas Court where he was sentenced to concurrent one to two year terms for his conviction for Burglary*fn4 and Criminal Trespass. This sentence was to run consecutively to the two to four year sentence imposed on September 11, 1981.

The Board granted Weyand parole on the two to four year sentence effective August 8, 1983. He was not released from confinement at that time but commenced serving the minimum term of his one to two year detainer sentence*fn5 and was placed in the work release program at the Somerset County Jail. In early September, authorities at the Somerset County Jail noticed that Weyand appeared to be in a high condition when he returned to the jail from work release. Although he denied any use of narcotics when questioned by the Sheriff, on September 9, 1981, he was required to submit a urine sample for urinalysis. The laboratory report on the urine sample submitted by Weyand was returned on September 21, 1981 and indicated that the sample had tested positive for THC,

[ 94 Pa. Commw. Page 35]

    the active ingredient of marihuana. Judge Shaulis revoked Weyand's work release privileges based upon that positive urinalysis. Weyand's parole agent was notified of his positive urinalysis on October 5, 1983 and Weyand was subsequently charged by the Board with being in violation of general parole condition 5A*fn6 and special parole condition 6*fn7 of his parole. A parole Violation Hearing was held on January 4, 1984 before a Board hearing examiner at the Somerset County Jail. As a result of that hearing, on January 30, 1984, the Board revoked Weyand's parole on the two to four year sentence and ordered that he be recommitted as a technical parole violator to serve nine months on backtime, when available. No appeal was ever taken from that revocation order.

Weyand became eligible to apply for parole on the one to two year sentence when he completed the minimum term of that sentence on June 28, 1984.*fn8 He failed to submit a parole application and, as a result, he was not interviewed by the Board for ...


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