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SYLVESTER ANDREWS v. COMMONWEALTH PENNSYLVANIA (06/03/86)

decided: June 3, 1986.

SYLVESTER ANDREWS, 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 Sylvester Andrews, dated September 25, 1985.

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

Author: Macphail

[ 97 Pa. Commw. Page 606]

Sylvester Andrews (Petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board recommitment order. That recommitment order revoked his parole and recommitted him to prison as a technical and convicted parole violator to serve twelve months on backtime. We affirm.

On August 26, 1984, while on parole, Petitioner was arrested for allegedly attempting to purchase various items at a Strawbridge & Clothier department store with a credit card which had been reported stolen by its owner. Petitioner was thereupon confined to the

[ 97 Pa. Commw. Page 607]

Philadelphia County Prison where, on September 25, 1984, he requested a full Board hearing. On October 25, 1984, Petitioner pled guilty to charges of criminal conspiracy and forgery. He was sentenced on January 16, 1985 and transferred to the State Correctional Institution at Graterford on January 22, 1985. On April 12, 1985, Petitioner waived his right to a full Board hearing. Petitioner received a hearing on May 16, 1985 at which time his counsel raised objections to the timeliness thereof. The Board overruled defense counsel's timeliness objections and subsequently, on July 29, 1985, ordered Petitioner recommitted for violations of conditions 2, 3A, 3B and special condition 6 of his parole. Petitioner sought administrative relief from the Board which was denied. A timely petition for review to this Court followed.*fn1

Petitioner first contends that 37 Pa. Code ยง 71.4(2) (Regulation)*fn2 violates his due process rights, asserting

[ 97 Pa. Commw. Page 608]

    that he has a fundamental right to a hearing within 120 days from the date the Board receives such a request. It is clear that the Petitioner's revocation hearing was held well beyond 120 days from the date of his request. The hearing was held, however, within 120 days of his transfer from the Philadelphia County Prison to the State Correctional Institution at Graterford. The Board contends, of course, that it has complied with the Regulation and that the Regulation affords Petitioner all of the process that is due him.

Petitioner concedes that this Court previously has held in Blair v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 41, 467 A.2d 71 (1983), cert. denied, 466 U.S. 977 (1984), that parole is not a matter of fundamental right but contends that our decision is in error and that a higher standard of review than reasonableness must apply in parole revocation cases. We cannot agree. This is not to say that prisoners and parolees are not entitled to the ...


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