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WILLIAM ANDERSON v. COMMONWEALTH PENNSYLVANIA (01/28/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 28, 1986.

WILLIAM ANDERSON, 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 William Anderson, Parole No. 9642K.

COUNSEL

Marjorie F. DeSanto, 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 President Judge Crumlish, Jr.

Author: Crumlish

[ 94 Pa. Commw. Page 370]

The Pennsylvania Board of Probation and Parole denied William Anderson administrative relief from an order rescinding parole and recommitting him as a technical and convicted parole violator. He appeals; we affirm the Board's order.

While on parole, Anderson was arrested in Montgomery County and charged with new criminal offenses.*fn1 Two days later, Anderson was arrested in Bucks County and charged with additional offenses.*fn2 Anderson was detained under Board warrant until disposition of these new criminal charges. He pled guilty to the Montgomery County charges and was convicted on the Bucks County charges.

[ 94 Pa. Commw. Page 371]

The Board recommitted Anderson, by order of May 12, 1982, to serve twelve months on his original sentence as a result of his conduct in Montgomery County. On February 15, 1983, the Board received certification of the Bucks County conviction. A full Board revocation hearing on this conviction was held May 5, 1983. As a result, the Board ordered Anderson recommitted as a convicted parole violator to serve the remainder of his original sentence.

Our scope of review of a Board recommitment order is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether the order is in accordance with law, and whether any constitutional rights have been violated. Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).

Anderson contends that the May 5, 1983 revocation hearing is invalid because it was held more than 120 days after his preliminary hearing on the Bucks County charges. This contention is meritless. The 120-day period runs from the time the Board receives notice of conviction.*fn3 The Board received notice of the Bucks County charges on February 15, 1983. The May revocation hearing was therefore held well within the applicable 120-day period.

Anderson also contends that his entire case should have been reviewed monthly pursuant to 37 Pa. Code ยง 71.3(11)*fn4 to locate any new criminal charges which would activate the 120-day time limit. However, this

[ 94 Pa. Commw. Page 372]

    section only applies where the parolee is being held solely on the Board's detainer. A review of the record reveals that no bond was ever set or posted on Anderson's new criminal charges, thus he was not being detained solely on a Board detainer.

Anderson further argues that his constitutional right against double jeopardy was violated since the Board recommitted him as a parole violator based on his Montgomery County conviction and later recommitted him for the Bucks County conviction. This argument lacks merit. Double jeopardy prohibitions do not apply to parole revocation proceedings because they are administrative, not criminal in nature. Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 110 (1985); Gundy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. 618, 478 A.2d 139 (1984).*fn5

[ 94 Pa. Commw. Page 373]

Anderson next contends that Section 110 of the Crimes Code*fn6 bars prosecution on the Bucks County offenses because they arose from the same criminal episode for which he had earlier been prosecuted in Montgomery County. Such a contention is outside this Court's jurisdiction. Challenges to criminal convictions must be directed to the Superior Court.*fn7

Finally, Anderson contends that he was denied his due process right to effective assistance of counsel.*fn8 Our review of the record, however, reveals no serious errors of counsel which prejudiced Anderson's defense. Thus, this contention must be rejected. See LaCourt v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 384, 488 A.2d 70 (1985).

Accordingly, we affirm the Board's order.

[ 94 Pa. Commw. Page 374]

Order

The Pennsylvania Board of Probation and Parole Board order, No. 9642K dated February 22, 1985, is affirmed.

Disposition

Affirmed.


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