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HARRY M. GREEN v. COMMONWEALTH PENNSYLVANIA (10/01/86)

decided: October 1, 1986.

HARRY M. GREEN, SR., 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 Harry M. Green, Parole No. 1712-P.

COUNSEL

Harry M. Green, Sr., petitioner, for himself.

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 Senior Judge Barbieri.

Author: Barbieri

[ 101 Pa. Commw. Page 132]

This is an appeal by Harry M. Green, Sr., who petitions for review of an order of the Pennsylvania

[ 101 Pa. Commw. Page 133]

Board of Probation and Parole (Board) which purports to rescind a prior Board order granting him parole on a 1981 Erie County sentence to a detainer sentence.*fn1 We affirm.

The pertinent facts are as follows. In 1979 Green was arrested and charged with Indecent Assault*fn2 and Corrupting the Morals of a Minor.*fn3 He was convicted of those charges in Erie County Common Pleas Court and sentenced in 1980 to a total of two and one-half to five years. On August 14, 1981, the Pennsylvania Superior Court reversed that judgment of sentence and granted him a new trial. See Commonwealth v. Green, 290 Pa. Superior Ct. 76, 434 A.2d 137 (1981). Green was able to secure his release on bail pending retrial and on January 19, 1982, he was again arrested and charged with Rape,*fn4 Indecent Assault, and Corrupting the Morals of a Minor. The retrial of his 1979 charges was held on March 17, 1982 and he was again convicted of those charges the following day and again sentenced to a term of two and one-half to five years. On July 22, 1982, he was convicted in Erie County Common Pleas Court of the charges stemming from the January 19, 1982 arrest and sentenced to a term of twenty to forty years. On

[ 101 Pa. Commw. Page 134]

March 23, 1984, the Board granted him parole on his initial two and one-half to five year sentence to his detainer sentence of twenty to forty years. However, the Board modified that order on April 13, 1984, to provide that if Green's detainer sentence was not enforced, he was to be re-interviewed for possible parole to the street. On May 10, 1985, the Pennsylvania Superior Court vacated that sentence and granted Green a new trial on the 1982 charges. See Commonwealth v. Green, 345 Pa. Superior Ct. 617, 496 A.2d 851 (1985) (per curiam). On October 23, 1985, the Board issued an order which "temporarily" suspended its order of March 23, 1984, and continued the matter pending Green's retrial of the 1982 charges. Green was not afforded a Morrissey*fn5 due process hearing or counsel representation prior to the Board issuing its order of October 23, 1985.

In this appeal, Green contends the Board violated his due process rights by failing to afford him a Morrissey hearing with counsel representation prior to revoking the parole granted by its order of March 23, 1984. The Board, for its part, argues Green's parole order was never executed and the Board acted properly in denying him release from prison.

The issue of what due process protections Green was entitled to is dependent upon our resolution of whether the Board's order of March 23, 1984 granting him parole on his initial sentence was ever executed. If that order was executed, and Green was on constructive parole while serving the minimum term of his detainer sentence, the Board was required to satisfy the minimum due process requirements of Morrissey prior ...


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