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HOWARD H. MARTIN v. COMMONWEALTH PENNSYLVANIA (04/10/86)

decided: April 10, 1986.

HOWARD H. MARTIN, 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 Howard H. Martin, Parole No. 1369-H, dated April 22, 1981.

COUNSEL

Charles A. Bierbach, for petitioner.

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

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 96 Pa. Commw. Page 322]

Petitioner Howard Martin appeals an order of the Board of Probation and Parole revoking his parole for technical parole violations. He claims that the Board improperly ignored his acquittal in criminal court of these same charges, thus violating his constitutional right against double jeopardy. The petitioner contends further that the Board erred in finding him to have violated his parole agreement by missing several outpatient treatment appointments.

[ 96 Pa. Commw. Page 323]

Our review is limited to determining whether the adjudication of the Board is supported by substantial evidence, is in accordance with the law and is observant of the petitioner's constitutional rights. Zazo v. Pennsylvania Page 323} Department of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).

The questions for review are whether the Board violated the petitioner's constitutional rights against double jeopardy when it revoked the petitioner's parole for the same incident in which a jury exonerated him of all criminal charges, and whether the Board erred in finding that petitioner violated his parole conditions by not attending out-patient counseling. For the reasons that follow, we affirm on the issue of double jeopardy and reverse on the issue of out-patient non-compliance.

"It is clear from an examination of the general conditions of parole that actual criminal conduct is not necessary in order to establish a technical parole violation." Hawkins v. Pennsylvania Board of Probation and Parole, 88 Pa. Commonwealth Ct. 547, 555, 490 A.2d 942, 947 (1985). In Hawkins, the petitioner while on parole was apprehended in a stolen car, a search of which revealed a .38 caliber revolver. He was arrested and charged with unauthorized use of a motor vehicle, Violating the Uniform Firearms Act (VUFA) and several summary offenses under the Vehicle Code. He was acquitted on the VUFA charge. At the parole violation/revocation hearing, Hawkins' parole was revoked for violating the conditions of his parole which prohibited him from owning or possessing any firearm or other weapons. We held that the testimony that Hawkins was in possession of a firearm, if believed, would be sufficient to support a finding that Hawkins violated his parole by being in possession of a firearm. This result was proper despite the fact Hawkins was acquitted on criminal charges resulting from the same incident. The Board did not sentence Hawkins as a convicted parole violator*fn1 to serve additional time for criminal acts he committed while on parole. Rather, the Board found

[ 96 Pa. Commw. Page 324]

    him to be a technical parole violator. The Board is authorized by statute to recommit him for technical violations regardless of a criminal conviction.*fn2

The general conditions of parole were established by the Board pursuant to a statutory mandate found in Section 23 of the Parole Act, 61 P.S. § 331.23. Pursuant to Section 23, the Board promulgated regulations establishing standards of conduct governing the behavior of parolees under the Board's supervision. These standards known as 'general conditions of parole,' are found at 37 Pa. Code § 63.4. ...


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