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LARRY GARRIS v. COMMONWEALTH PENNSYLVANIA (10/22/86)

decided: October 22, 1986.

LARRY GARRIS, 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 Larry Garris, Parole No. 8541M.

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

Author: Craig

[ 101 Pa. Commw. Page 421]

Larry Garris appeals from a modified order of the Pennsylvania Board of Probation and Parole dated January 30, 1986, which recommitted him for a recommitment (backtime) period of four years as a convicted parole violator.

[ 101 Pa. Commw. Page 422]

The Lancaster County Court of Common Pleas convicted the petitioner, who was on parole, of robbery and burglary. Consequently, the board issued an order, dated October 25, 1985, recommitting the petitioner to prison for the remainder of his unexpired term -- four years -- as a convicted and a technical parole violator. The order did not delineate how much of the petitioner's backtime was attributable to the convictions or to the technical violations, which consisted of possession of weapons*fn1 and assaultive behavior.*fn2

The petitioner's attorney, on December 17, 1985, requested that the board modify its recommitment order to conform with the Supreme Court's ruling in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985).*fn3 Consequently, the board issued a modified order which deleted all references to the technical parole violations in the original order, because the board apparently regarded the technical violations as involving the same elements of crime as those upon which the convictions were based.*fn4 However, the board did not recalculate the petitioner's backtime.

The petitioner contends that the board's failure to recalculate his backtime is an abuse of discretion. The

[ 101 Pa. Commw. Page 423]

    board argues that the backtime periods imposed for the technical violations and the convictions were to run concurrently and, therefore, the backtime total in the original order did not have to be recalculated when the technical parole violations were stricken from the order.

The issue thus presented is whether it is an abuse of discretion*fn5 for the board not to recalculate backtime for the parolee after the board has modified a recommitment order by striking out technical ...


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