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LUIS RODRIQUEZ v. COMMONWEALTH PENNSYLVANIA (10/17/86)

decided: October 17, 1986.

LUIS RODRIQUEZ, 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 case of Luis Rodriquez, Parole No. 7034-G, dated December 9, 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

[ 101 Pa. Commw. Page 290]

Luis Rodriquez (Petitioner) seeks review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied administrative relief of a Board decision to recommit him as a technical and convicted parole violator. We vacate the order as to the technical violation and remand for a recomputation of backtime.

On August 14, 1984, a urine sample obtained from Petitioner tested positive for morphine, thus placing him in violation of Parole Condition 5(a).*fn1 Subsequently, on September 24, 1984, Petitioner was arrested by the Lancaster City Bureau of Police for two counts of delivery of heroin. A parole warrant was issued on that date and Petitioner was detained in the Lancaster County Prison pending disposition of the charges. Continuances of Petitioner's technical violation hearing were granted on October 3, 1984 and December 11, 1984, pending the outcome of the charges against him.

Petitioner was convicted on May 17, 1985 and a violation/revocation hearing was scheduled for September

[ 101 Pa. Commw. Page 29111]

, 1985. Petitioner appeared at the September 11 hearing without counsel, and upon his request for representation, the hearing was continued until October 9, 1985.

As a result of the October 9 hearing, at which Petitioner was represented by counsel, the Board recommitted Petitioner as a technical parole violator to serve six months backtime and as a convicted parole violator to serve 30 months backtime. Petitioner filed a timely administrative appeal pursuant to 37 Pa. Code § 71.5(h), which was denied. He then petitioned this Court for review.

Petitioner first challenges the Board's order on the basis that he was not granted a hearing within 120 days of the issuance of the parole warrant on September 24, 1984 as, he asserts, is required by 37 Pa. Code § 71.2(11).*fn2 We note at the outset that Petitioner failed to raise the timeliness issue in either his administrative appeal or his Petition for Review to this Court. While such an issue, first raised in a petitioner's brief on appeal, may be deemed to be waived, see Lantzy v. Pennsylvania Board of Probation and Parole, 82 Pa. Commonwealth Ct. ...


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