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DONALD D. CALDWELL v. COMMONWEALTH PENNSYLVANIA (06/13/86)

decided: June 13, 1986.

DONALD D. CALDWELL, 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 Donald D. Caldwell, Parole No. 4341-E, dated June 27, 1985.

COUNSEL

Cynthia N. Keller, 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 Craig.

Author: Craig

[ 98 Pa. Commw. Page 158]

Donald Caldwell petitions for review of an order of the Pennsylvania Board of Probation and Parole denying him administrative relief from the board's order, recorded on May 3, 1985. Mr. Caldwell contends that the board's decision to recommit him for thirty-six months of backtime as a convicted parole violator, based upon his guilty plea to charges of unlawfully obtaining public

[ 98 Pa. Commw. Page 159]

    assistance and criminal conspiracy, violates the double jeopardy clause of the Fifth Amendment because his commission of those offenses occurred between 1972 and 1977, during a parole period which had antedated the re-incarceration which preceded his most recent parole.

On June 5, 1972, the board had paroled Mr. Caldwell, who was serving a four-to-fifteen-year sentence which had begun in 1968. On February 2, 1981, the board recommitted Mr. Caldwell as a convicted parole violator for eighteen months of backtime based upon his conviction for possession of a firearm. At that time, the board recomputed his maximum release date to February 2, 1992. The board again paroled him on August 10, 1982.

On May 4, 1983, the Pennsylvania State Police arrested Mr. Caldwell and charged him with forgery, theft by deception, welfare fraud and conspiracy. On January 23, 1985, Mr. Caldwell pleaded guilty to 29 counts of unlawfully obtaining public assistance and one count of criminal conspiracy. The subject offenses occurred between 1972 and 1979. Each month thirty-one unentitled persons received by mail two Commonwealth of Pennsylvania Food Coupon Authorizations of which they returned half to Mr. Caldwell and another individual. The Commonwealth entered nolle prosequi on the remaining charges.

On March 13, 1985, the board ordered Mr. Caldwell recommitted as a technical parole violator with twelve months of backtime for violating the conditions of his parole, including: 1, leaving the district to which paroled without prior permission; 2, changing residence without permission; and 3A, failing to report as instructed.

Following a hearing, the board issued its May 3, 1985, order, the recommittment ...


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