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WILLIAM M. NICASTRO v. COMMONWEALTH PENNSYLVANIA (12/24/86)

decided: December 24, 1986.

WILLIAM M. NICASTRO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeals from the Order of the Pennsylvania Board of Probation and Parole in the case of William Nicastro, Parole No. 2825-H.

COUNSEL

Nino V. Tinari, 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

[ 102 Pa. Commw. Page 570]

Acknowledging that this court's recent decision in Keough v. Pennsylvania Board of Probation and Parole, 95 Pa. Commonwealth Ct. 252, 505 A.2d 378 (1986), is squarely on point against him, petitioner William M. Nicastro here requests that we overturn that ruling and conclude that a parolee who is ordered to serve backtime based upon the conviction of driving while under the influence of alcohol (DUI) may not receive additional backtime for the technical parole violation of consuming alcohol.

In Keough, we decided that a parolee's technical violation of consuming alcohol and his DUI conviction involved separate acts. Therefore, an order of backtime for both violations did not contravene section 21.1a(b) of the Board of Parole Act.*fn1 Nicastro contends that Keough

[ 102 Pa. Commw. Page 571]

    is no longer dispositive, arguing that Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), and its companion case, Massey v. Pennsylvania Board of Probation and Parole, 509 Pa. 256, 501 A.2d 1114 (1985), contain language which would control the present facts.

While on parole from a 1973 rape conviction, Nicastro was charged with driving under the influence, simple assault, aggravated assault, and recklessly endangering another person, after an automobile accident on November 4, 1984. On June 28, 1985, in the Court of Common Pleas of Philadelphia County, Nicastro received convictions on all charges except aggravated assault. He received a sentence of forty-eight hours imprisonment, two years probation and an order to pay $3,000 restitution.

However, on October 5, 1985, during Nicastro's incarceration for an unrelated offense, the board issued a detainer warrant against him for alleged parole violations related to his DUI conviction. After several continuances at Nicastro's request, the board conducted a violation and revocation hearing on December 3, 1985. The board then issued a timely order recommitting Nicastro for eighteen months as a convicted parole violator, and for an additional nine months based upon his violation of the special condition of his parole that he not consume alcohol.

Nicastro appeals from the Pennsylvania Board of Probation and Parole's denial of administrative relief, contending that his recommittal as both a technical and convicted ...


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