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LEONARD ROBINSON v. COMMONWEALTH PENNSYLVANIA (02/05/87)

decided: February 5, 1987.

LEONARD ROBINSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeals from the Orders of the Pennsylvania Board of Probation and Parole in the case of Leonard Robinson, dated March 3, 1986 and June 27, 1986.

COUNSEL

Scott F. Breidenbach, 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

[ 103 Pa. Commw. Page 496]

Leonard Robinson (Petitioner) has filed two petitions for review from actions taken by the Pennsylvania Board of Probation and Parole (Board). The first petition, docketed at No. 682 C.D. 1986, was filed by Petitioner pro se and sought direct review of a March 3, 1986 Board order regarding Petitioner's recommitment as a technical and convicted parole violator. This petition was filed without prior resort to the application for administrative relief required by 37 Pa. Code § 71.5(h).

[ 103 Pa. Commw. Page 497]

Counsel, who was appointed to represent Petitioner in his appeal, subsequently proceeded to seek administrative review by the Board of its March 3 order. Following Board action on the application for administrative relief, a second petition for review, docketed at No. 1942 C.D. 1986, was filed with this Court.*fn1 The two petitions have been consolidated for our consideration.

We note preliminarily that the petition for review docketed at No. 682 C.D. 1986 must be quashed for failure to exhaust available administrative remedies. Board regulations clearly require that administrative review of recommitment orders be sought before an appeal may properly be filed with this Court. 37 Pa. Code § 71.5(h).

[I]t has been this Court's past practice where a parolee has filed a pro se petition for review within thirty days of the date of the Board's recommitment order but failed to filed for administrative relief under 37 Pa. Code § 71.5(h), to dismiss the petition without prejudice to the parolee's right to seek the appropriate administrative relief with the Board.

St. Clair v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 561, 571-2, 493 A.2d 146, 153 (1985). Since counsel for Petitioner has already properly sought administrative relief from the Board and has filed a timely appeal therefrom with this Court, we may quash the original improvidently-filed petition without prejudicing the remaining valid appeal.

[ 103 Pa. Commw. Page 498]

Turning to the merits of Petitioner's remaining appeal, we observe that the procedural history of this matter has been previously detailed in Robinson v. Pennsylvania Board of Probation and Parole (Robinson I), 94 Pa. Commonwealth Ct. 397, 503 A.2d 1048 (1986) and need not be repeated here. In Robinson I, Petitioner had appealed from a Board order recommitting him to serve twenty-four months backtime for multiple technical violations and to serve his unexpired term as a convicted parole violator. This Court, per Judge Doyle, vacated the Board's order and remanded for reconsideration of Petitioner's period ...


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