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MICHAEL WEIMER v. COMMONWEALTH PENNSYLVANIA (01/14/87)

decided: January 14, 1987.

MICHAEL WEIMER, 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 Michael Weimer, Parole No. 4157M.

COUNSEL

W. Hamlin Neely, 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 Senior Judge Barbieri.

Author: Barbieri

[ 103 Pa. Commw. Page 181]

This is a parole revocation appeal wherein Michael Weimer, parolee, appeals here an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board parole revocation order. That revocation order recommitted him to prison as a convicted and a technical parole violator to serve thirty-six months on backtime. We reverse and remand.

[ 103 Pa. Commw. Page 182]

Weimer was granted parole by the Board effective June 30, 1982 on a sentence of five to twelve years imposed by the Court of Common Pleas of Northampton County as a result of his conviction for Robbery*fn1 and Criminal Conspiracy.*fn2 On September 3, 1984, Weimer approached one William Cox, who was installing a stereo in his vehicle, grabbed him, told him he was going to cut out his heart, and stabbed him in the upper right chest with what Cox described as a hunting knife. Weimer was subsequently arrested by Bethlehem Police and charged with Aggravated Assault*fn3 and Recklessly Endangering Another Person.*fn4 He eventually entered a negotiated plea of guilty to Aggravated Assault in Lehigh County Common Pleas Court and was subsequently sentenced to two to four years imprisonment.

On July 9, 1985, Weimer appeared before a Board hearing examiner at the Lehigh County Prison for a parole Violation/Revocation Hearing. The Board charged he violated 37 Pa. Code § 63.4(5)(ii), requiring parolees to refrain from owning or possessing any firearms or other weapons, 37 Pa. Code § 63.4(5)(iii), requiring parolees to refrain from assaultive behavior, as well as committing a crime for which he was convicted within the meaning of Section 21.1(a) of the Act of August 6, 1941 (Parole Act), P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, 61 P.S. § 331.21a(a). After the hearing, the Board, by order dated July 29, 1985, revoked his parole and recommitted him to prison as a convicted parole violator to serve twenty-four months on backtime and as a technical parole violator to serve twelve months on backtime, for a

[ 103 Pa. Commw. Page 183]

    total of thirty-six months on backtime, when available. The Board amended that order on January 21, 1986, after Weimer was sentenced on the new Lehigh County conviction, to calculate a tentative reparole date and extended the maximum term of his original sentence to October 28, 1992. He filed an administrative appeal which the Board partially granted by deleting the finding he violated 37 Pa. Code § 63.4(5)(iii), pertaining to assaultive behavior, but denied his appeal pertaining to the finding he violated 37 Pa. Code § 63.4(5)(ii), pertaining to possession of a weapon. The Board did not alter the twelve months backtime imposed for the technical parole violations. He subsequently filed a timely petition for review with this Court.

In this appeal, Weimer contends the Board erred as a matter of law when it recommitted him as a technical parole violator for possessing a weapon, to-wit the knife, when that same conduct constituted an element of the offense, Aggravated Assault, for which he was subsequently convicted. He argues under the Pennsylvania Supreme Court's interpretation of Section 21.1(b) of the Parole Act, 61 P.S. § 331.21a(b), set forth in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), the Board is without power to recommit him as a technical violator for conduct which also formed an element of a crime of which he was convicted. We agree.

Weimer was convicted, pursuant to his guilty plea, of the offense of Aggravated Assault. The pertinent provisions of Section 2702(a) of the Crimes Code, 18 Pa. C.S. § 2702(a), define the offense of Aggravated Assault as follows:

(a) Offense defined. -- a person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally,

[ 103 Pa. Commw. Page 184]

    knowingly or recklessly under circumstances manifesting extreme ...


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