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SYLVESTER CARTHON v. COMMONWEALTH PENNSYLVANIA (07/23/86)

decided: July 23, 1986.

SYLVESTER CARTHON, 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 Carthon, Parole No. 0490-J, dated November 7, 1984.

COUNSEL

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

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

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 99 Pa. Commw. Page 148]

Sylvester Carthon (petitioner) appeals the order of the Pennsylvania Board of Probation and Parole (Board),

[ 99 Pa. Commw. Page 149]

    dated November 7, 1984, which imposed a twenty-two month recommitment as a technical parole violator. We reverse.

This case has a somewhat complicated procedural history. On March 11, 1983, petitioner was arrested while on probation and a detainer was lodged against him. Petitioner was charged with violating conditions 2*fn1 and 3A*fn2 of his parole.

On July 15, 1983, after a hearing at which petitioner was represented by counsel, petitioner was recommitted as a technical parole violator for twenty-two months, which represented the entire remaining balance of his unexpired term. Administrative relief was denied by the Board on November 22, 1983.

On appeal to this Court, we held that the evidence relied upon to support a finding of a violation of condition 2 was inadmissible hearsay and that without that evidence (a certified letter sent to petitioner's approved address which went unclaimed), there could be no finding of a violation of that condition of parole. By order dated September 11, 1984, we directed the Board to recalculate petitioner's recommitment based solely on his failure to maintain contact with parole supervision staff. Two months later, on November 7, 1984, the Board responded to this Court's order. The violation of condition 2 was removed from the Board's order.

[ 99 Pa. Commw. Page 150]

Nonetheless, as evidence relied on, the Board cited the very same piece of evidence (the certified letter) which they had specifically been told was inadmissible hearsay and must not be considered. Furthermore, even though they supposedly were no longer relying on a violation of condition 2, they did not recompute petitioner's sentence but merely reimposed the original twenty-two month recommitment. The presumptive range for a violation of condition 3A is only three to six months. As a ...


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