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ANTHONY PERRY v. COMMONWEALTH PENNSYLVANIA (02/19/87)

decided: February 19, 1987.

ANTHONY PERRY, 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 the case of Anthony Perry, Parole No. 2845-J, dated October 7, 1983.

COUNSEL

Anthony Perry, petitioner, for himself.

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

[ 104 Pa. Commw. Page 122]

Perry has filed a Petition for Review in the nature of mandamus which this Court directed to be treated as a Petition for Review addressed to our appellate jurisdiction inasmuch as it challenges orders entered by the Board of Probation and Parole (Board).

It appears that Perry was recommitted on October 7, 1983 for a total of forty-eight months backtime, twelve months of which was for violation of conditions 3A, 3B and 5A and thirty-six months as a convicted parole violator. That order was reaffirmed January 13, 1984.

[ 104 Pa. Commw. Page 123]

On March 8, 1986, Perry wrote to the Board asking for reconsideration in light of Rivenbark v. Pennsylvania Page 123} Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). Inasmuch as Perry's conviction was for a drug-related offense, the Board, on May 20, 1986, took action to delete all reference to violation of condition 5A which relates to the parolee's duty to abstain from the possession or sale of controlled substances. The Board, however, did not modify the recommitment time. That order was modified on July 1, 1986 but the modification did not alter the recommitment time. The July 1, 1986 order was mailed July 16, 1986. Perry filed his Petition for Review on August 7, 1986.

Perry's brief contends that there was insufficient evidence adduced at the parole revocation hearing to recommit him for violating conditions 3A and 3B, that the Board entered a vague order which is prohibited by Pitt v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 116, 508 A.2d 1314 (1986), that the Board failed to adjust the recommitment time after it deleted the violation of 5A and that the Board filed a vague and incomplete record.*fn1

The Board counters that the only issue preserved by Perry in his application for administrative review was the implication of Rivenbark on his recommitment order and that the Board's recommitment order as finally modified complies with the requirements of Rivenbark.

Our problem here is that we do not believe that Perry has ever filed an application for administrative review*fn2 with respect to the Board's order of July 1, 1986 which is its ...


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