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GREGORY KILPATRICK v. COMMONWEALTH PENNSYLVANIA (02/27/87)

decided: February 27, 1987.

GREGORY KILPATRICK, 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 Gregory Kilpatrick, dated January 13, 1986.

COUNSEL

Kimberly Hamilton, 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 Palladino.

Author: Palladino

[ 104 Pa. Commw. Page 232]

Gregory Kilpatrick (Petitioner) appeals from an order of the Pennsylvania Board of Probation and Parole (Board) which denied Petitioner's request for administrative relief from two Board parole revocation orders recommitting him to serve a total of 30 months on backtime.

Petitioner was sentenced in 1979 to two concurrent terms of three to ten years for burglary and related offenses. He was released on parole on January 19, 1982. On January 30, 1985, Petitioner was arrested and charged with two counts each of possession of cocaine,*fn1 possession with intent to deliver*fn2 cocaine and criminal conspiracy.*fn3 The Board lodged a detainer against him and held a timely violation hearing on April 9, 1985 pursuant to 37 Pa. Code § 71.2. Petitioner was recommitted on May 3, 1985 to serve 24 months on backtime as a technical parole violator (TPV) for violating condition

[ 104 Pa. Commw. Page 2335]

(a)*fn4 of his parole (relating to possession of narcotics).*fn5

On July 15, 1985, Petitioner entered a plea of nolo contendere to one count of possession with intent to deliver cocaine stemming from the January 30, 1985 charges. He was sentenced on September 6, 1985. Pursuant to 37 Pa. Code § 71.4, the Board held a revocation hearing on November 26, 1985 based on Petitioner's July 15, 1985 plea. Conviction of possession with intent to deliver carries a presumptive range for recommitment of 9-12 months,*fn6 however the Board ordered only a 6 month recommitment, citing the previous 24 month TPV recommitment order as a mitigating factor.

Our scope of review for Pennsylvania Board of Probation and Parole orders is limited to whether there has been an error of law, whether the Board's factual findings are supported by substantial evidence and whether there has been any constitutional violation. Seyler v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 302, 509 A.2d 438 (1986).

Section 21.1 of the Parole Act*fn7 grants to the Board the authority to recommit a parole violator. In Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), the Supreme Court of Pennsylvania held that, as a matter of statutory construction, the Board has no authority to recommit a parolee as a TPV for an act ...


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