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HARRY HARTMAN v. WARDEN GEORGE PETSOCK (05/19/86)

decided: May 19, 1986.

HARRY HARTMAN, PETITIONER
v.
WARDEN GEORGE PETSOCK, SCI PITTSBURGH, LEROY ZIMMERMAN, ATTORNEY GENERAL AND HERMAN TARTLER, SECRETARY OF THE BOARD OF PROBATION AND PAROLE, RESPONDENTS



Appeal from the Order of the Pennsylvania Board of Probation and Parole, in case of Harry Hartman, dated February 19, 1985.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief-Appellate Division, and Paulette J. Balogh, Appellate Counsel, for petitioner.

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

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

Author: Palladino

[ 97 Pa. Commw. Page 312]

On January 6, 1984, while on parole from a two-to-ten-year sentence for involuntary deviate sexual intercourse, Harry Hartman (Petitioner) was arrested for rape and indecent assault. A parole violation warrant was filed the same day based upon the criminal charges and technical parole violations. Upon Petitioner's request, his preliminary parole violation hearing was continued to January 31, 1984. On January 23, 1984 the criminal charges were dismissed because the alleged victim refused to testify. On January 31, 1984, Petitioner signed waivers of the preliminary hearing and a full Board hearing, and a violation hearing was held before a hearing examiner. Based upon the hearing examiner's recommendation, the Board of Probation and Parole (Board), by order dated March 12, 1984, recommitted Petitioner for twenty-four months as a technical parole violator. Petitioner timely requested administrative relief which was denied, and Petitioner appealed to this Court. Upon the Board's motion, which asserted that the tape recording of the violation hearing was incomplete and could not be transcribed, we remanded the case to the Board for a new violation hearing. Hartman v. Commonwealth, Board of Probation and Parole, (No. 1658 C.D. 1984, filed September 13, 1984).

A new violation hearing was scheduled for October 1, 1984. Petitioner appeared and requested a continuance.

[ 97 Pa. Commw. Page 313]

On October 9, 1984, Petitioner appeared for a new violation hearing before a hearing examiner. Pursuant to Board regulations, the hearing examiner advised Petitioner of his right to be heard before a quorum of the Board. See 37 Pa. Code § 71.2(14)(ii). Petitioner at that point stated that he wanted a full Board hearing. The hearing examiner, rather than terminating the proceedings and making arrangements to schedule a hearing before a quorum of the Board as required by 37 Pa. Code § 71.2(14)(ii)(B), and over Petitioner's objection, proceeded to take testimony of the parole agent and the agent's witnesses.

The tape recording of this testimony was forwarded to the Board, a quorum of which convened on November 20, 1984, to hear testimony from one additional witness. Based upon both the recorded and live testimony, the Board, by order dated January 8, 1985, recommitted Petitioner to serve twenty-four months backtime as a technical parole violator. Petitioner's timely request for administrative relief was denied and Petitioner now appeals to this Court.

Petitioner's initial assertion of error is that the Board's hearing examiner erred in proceeding to take testimony and making evidentiary rulings at the October 9, 1984 hearing after Petitioner had requested a full Board hearing. We agree.

The Board's regulations are quite specific on the procedure to be followed by a hearing examiner with regard to advising a parolee of his right ...


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