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KENT ALLEN BREWER v. COMMONWEALTH PENNSYLVANIA (04/17/86)

decided: April 17, 1986.

KENT ALLEN BREWER, 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 Kent Allen Brewer, dated September 18, 1984.

COUNSEL

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

Robert A. Greevy, Chief Counsel, for respondent.

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

Author: Macphail

[ 96 Pa. Commw. Page 424]

Kent Allen Brewer (Petitioner) appeals an order of the Pennsylvania Board of Probation and Parole (Board) denying his petition for administrative relief. The Board's order recommitted Petitioner as a technical and convicted parole violator to serve five years, five months and one day.

The record certified to this Court reveals that Petitioner had originally been sentenced to a five to twelve year term for murder effective February 6, 1976. While on parole from that sentence, Petitioner was arrested on charges of Aggravated Assault, Simple Assault, Recklessly Endangering Another Person, Terroristic Threats, Possession of an Instrument of Crime, and violations of technical parole conditions 5B (possession of offensive weapon) and 5C (refrain from assaultive behavior). Petitioner was also charged with Theft by Taking and Receiving Stolen Property. The Board lodged its detainer on February 7, 1984. Bail was set at $25,000. Petitioner

[ 96 Pa. Commw. Page 425]

    did not post bail and was incarcerated at the Montgomery County Prison.

On June 20, 1984, the Montgomery County Court of Common Pleas accepted Petitioner's guilty plea to the charges of Terroristic Threats, Theft by Moving Stolen Property and Theft by Receiving Stolen Property; the other outstanding charges were nolle prossed. The trial court sentenced Petitioner to a term of two to five years on the Terroristic Threat charge and to consecutive five years probation to be served on the theft charges.

A full Board hearing was timely held on August 28, 1984 at the State Correctional Institution at Graterford. The Board thereafter recommitted Petitioner for thirty-six months as a technical parole violator and twenty-nine months as a convicted parole violator for a total of sixty-five months on backtime. His petition requesting administrative relief was denied and this appeal followed.

Subsequent to our order of March 7, 1985 directing that this case be submitted on briefs, counsel for the Petitioner, on March 6, 1986, sent a letter to the Judges of this Court seeking to amend his brief by requesting our consideration of Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985) and Massey v. Pennsylvania Board of Probation and Parole, 509 Pa. 256, 501 A.2d 1114 (1985). The Board responded to the letter essentially contending that the cases do not apply because the Petitioner was not recommitted as a technical and convicted parole violator for the same conduct. We have entered an order directing that counsel's letter shall be treated as a motion to amend Petitioner's brief and that that motion be granted.

All of the charges against the Petitioner, both those in the criminal court and the technical violations, arise from incidents ...


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