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JAY D. HARRINGTON v. COMMONWEALTH PENNSYLVANIA (04/25/86)

decided: April 25, 1986.

JAY D. HARRINGTON, 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 Jay D. Harrington, Parole No. 9339-J.

COUNSEL

Frederick I. Huganir, Assistant Public Defender, for petitioner.

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

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

Author: Palladino

[ 96 Pa. Commw. Page 557]

Jay D. Harrington (Petitioner) appeals from an order of the Board of Probation and Parole (Board) recommitting Petitioner as both a technical parole violator and a convicted parole violator based upon his plea of guilty for carrying a concealed weapon. We reverse in part and affirm in part.

Petitioner was paroled from State Correctional Institution, Camp Hill, on June 2, 1983. On December 10, 1983, Petitioner was arrested by the Sparks, Nevada, Police Department on charges of Ex-Felon in Possession of a Firearm, Assault with a Deadly Weapon, and Carrying a Concealed Weapon. On February 16, 1984, Petitioner pled guilty to Carrying a Concealed Weapon, and was sentenced to three weeks imprisonment pending his transfer to Pennsylvania authorities. On November 20, 1984, the Board recommitted Petitioner as a technical parole violator for six months for Possessing a Weapon in Violation of Condition 5b of his parole. The Board also recommitted Petitioner as a convicted parole violator for eighteen months based on his conviction for Carrying a Concealed Weapon.

Petitioner argues that his recommitment as both a technical parole violator and a convicted parole violator based upon his conviction for carrying a concealed weapon, is violative of his constitutional right to due process, and constitutes double jeopardy. Petitioner also argues that the Board erred in recommitting him as a technical parole violator because Section 21.1 of the

[ 96 Pa. Commw. Page 558]

Pennsylvania Board of Parole Act*fn1 gives the Board authority to recommit Petitioner as a technical parole violator only where his parole violation is based on an act which does not constitute "the commission of a new crime."

The Pennsylvania Supreme Court addressed these issues in Rivenbark v. Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). The Court held that although recommitment as a technical parole violator and a convicted parole violator when both violations are based on petitioner's conviction is not violative of double jeopardy, the recommitment as a technical parole violator is beyond the scope of authority granted to the Board by the General Assembly. Rivenbark, Id. at 255, 501 A.2d at 1113-1114. The Court stated:

Subsection (b) of Section 21.1 of the Board of Parole Act specifically excludes from recommitment as a technical violator one who has violated the terms and conditions of his parole 'by the commission of a new crime of which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere in a court of record.' This language is clear and free of all ambiguity. The statute unambiguously expresses the legislature's intent that a parolee may not be recommitted as a technical violator based upon an act constituting a new crime of which he is convicted.

Id. at 255, 501 A.2d at 1114. Here, as in Rivenbark, the Petitioner's recommitment as a technical parole violator, based on his conviction, is beyond the scope of authority of the Board. We therefore reverse the Board's ...


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