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FRANK GRECO v. COMMONWEALTH PENNSYLVANIA (07/22/86)

decided: July 22, 1986.

FRANK GRECO, 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 Frank Greco, Parole No. 8893-J, dated August 12, 1985.

COUNSEL

Frank Greco, with him, Lester G. Nauhaus, Public Defender, John H. Corbett, Jr., Chief-Appellate Division, and Richard S. Levine, Appellate Counsel, for petitioner.

No appearance for respondent.

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

Author: Palladino

[ 99 Pa. Commw. Page 108]

This is an appeal by Frank Greco (Petitioner) from a denial of his request for administrative relief by the Board of Probation and Parole (Board). We affirm.

On October 11, 1974, Petitioner was sentenced to a term of two and one-half to ten years for robbery and he was subsequently released on parole. While on parole he was arrested and pled guilty to a charge of possession of an instrument of a crime. He was then sentenced in Dauphin County on September 20, 1982, to serve a term of two to five years. In addition, Petitioner was recommitted as a parole violator by the Board and the

[ 99 Pa. Commw. Page 109]

    maximum expiration date on his original sentence was extended to July 8, 1989.

Petitioner was again granted parole on February 23, 1984, subject to a number of conditions including Condition 5(b) which required that he "refrain from owning or possessing any firearms or other weapons. . . ." On January 9, 1985, Petitioner was arrested and charged with two counts of receiving stolen property, and two counts of violating the Uniform Firearms Act.*fn1 A parole detainer was lodged against Petitioner on the following day due to the arrest.

On January 30, 1985, a preliminary hearing on these charges was held, at which time all charges against Petitioner were dismissed with the exception of firearm not to be carried without a license. Petitioner filed a writ of habeas corpus with the Court of Common Pleas of Washington County (trial court) and, upon agreement of counsel, the trial court reviewed the record of the preliminary hearing and dismissed the charge of firearm not to be carried without a license.

Thereafter, on April 11, 1985, a parole revocation hearing was held. The testimony of both the arresting officer and Petitioner was heard concerning the events which transpired on January 9, 1985. The Board, upon review of the hearing examiner's findings and recommendations, concluded that Petitioner's violation of condition 5(b) had been established by a preponderance of the evidence. The Board noted that the presumptive range for Petitioner's violation was six ...


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