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DONALD D. CALDWELL v. COMMONWEALTH PENNSYLVANIA (11/20/86)

decided: November 20, 1986.

DONALD D. CALDWELL, 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 Donald Caldwell, Parole No. 4341-E.

COUNSEL

Cynthia N. Keller, 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 Barry.

Author: Barry

[ 102 Pa. Commw. Page 287]

Donald Caldwell, the petitioner, appeals an order of the Pennsylvania Board of Probation and Parole (Board),

[ 102 Pa. Commw. Page 288]

    which denied petitioner's request that he be given a credit for six months he had served previously.

While on parole, petitioner pled guilty to illegal possession of a machine gun. As a result, he was recommitted as both a convicted and technical parole violator and ordered to serve six months backtime as a technical violator and twelve months backtime as a convicted violator. The technical violation was based on conduct which constituted the crime for which he was convicted. In 1982, petitioner was reparoled.

In January of 1985, petitioner pleaded guilty to unlawfully obtaining public assistance. As a result of the conviction, petitioner was recommitted as a convicted parole violator in May of 1985, and was ordered to serve thirty-six months backtime as a convicted violator. That matter is presently pending before this Court, petitioner having filed a petition for review.

In December of 1985, the Pennsylvania Supreme Court handed down its decision in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), which held that one may not be recommitted as both a convicted and technical parole violator when the technical violation constituted the same conduct which formed the basis of the new criminal conviction. In January of 1986, petitioner, by letter to the Board, requested that he be given credit for the six months backtime he had served as a technical violator for the machine gun incident. The Board refused to grant such a credit and this appeal followed.

The Board concedes that Rivenbark is retroactive and that, under such retroactive application, petitioner was erroneously recommitted for a six month period as a technical parole violator. Nonetheless, the Board argues that petitioner should not be entitled to a credit against the backtime he was ordered to serve for the ...


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