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JAMES TARRANT v. COMMONWEALTH PENNSYLVANIA (03/05/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 5, 1987.

JAMES TARRANT, 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 James Tarrant, dated October 3, 1985.

COUNSEL

Scott F. Breidenbach, Assistant Public Defender, Parole Division, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 104 Pa. Commw. Page 370]

James Tarrant (petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied his petition for administrative relief.*fn1

On May 2, 1982, the petitioner was paroled from a sentence of five to twelve years on a burglary conviction. While on parole, he was arrested on new criminal charges (new charges). The Board lodged a detainer against him, charging him with parole violations based on the new charges, as well as several technical parole violations which were unrelated to the new charges. On February 7, 1984, the petitioner, who had waived his preliminary and detention hearing, requested that his Violation-Revocation hearing,*fn2 which was scheduled for that day, be continued to "CFN" (continued until further notice), pending the disposition of the new charges.

The petitioner was found guilty on the new charges on October 31, 1984 and the Board received official verification thereof on December 10, 1984.

The Board held the petitioner's Violation-Revocation hearing on March 7, 1985 and, on April 18, 1985, recorded its order recommitting him as a technical and

[ 104 Pa. Commw. Page 371]

    convicted parole violator for a period of sixty-six months.

Upon the petitioner's request for administrative relief, the Board ordered a re-hearing solely for the purpose of deciding whether or not the March 7, 1985 hearing complied with the applicable 120 day time limits.*fn3

After a hearing, the Board concluded that the March 7, 1985 hearing was timely and affirmed its recommitment order. And, as noted, the Board subsequently upheld the timeliness of the March 7, 1985 hearing and the propriety of its recommitment order on a second petition for administrative relief.

On review,*fn4 the sole question before us is whether or not the March 7, 1985 hearing was timely.

While conceding that any delay attributable to his continuance request cannot be included in the calculation of the 120 day period, the petitioner argues, however, that, inasmuch as his parole agent admitted, at the timeliness hearing, to personal knowledge of the October

[ 104 Pa. Commw. Page 37231]

, 1984 guilty verdict as of October 31, 1984, the relevant period should run from that date, not December 10, 1984, the date on which the Board received the official verification. If this argument were to be accepted, the last date on which the Board could have held a timely hearing would have been March 1, 1985. We must decline to accept this argument, however, because we have previously held in regard to convicted parole violators that it is the date of the Board's receipt of the official verification of the guilty verdict which activates the 120 day period. Taylor v. Pennsylvania Board of Probation and Parole, 43 Pa. Commonwealth Ct. 649, 402 A.2d 1153 (1979). Moreover, we must also conclude that, inasmuch as the petitioner requested a continuance of his Violation hearing, as well as of his Revocation hearing,*fn5 until the disposition of the new charges, the 120 day period, with respect to the technical violations, also began to run with the Board's receipt of the official verification.

We hold, therefore, that with respect to the technical and convicted parole violations, the petitioner's March 7, 1985 hearing was timely.

Accordingly, we will affirm the Board's order.

Order In 2795 C.D. 1985

And Now, this 5th day of March, 1987, the petition for review in the above-captioned matter filed at No.

[ 104 Pa. Commw. Page 3732795]

C.D. 1985 from the order of the Pennsylvania Board of Probation and Parole dated October 7, 1985 is dismissed as being moot.

Order In 3472 C.D. 1985

And Now, this 5th day of March, 1987, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter, dated November 18, 1985, is affirmed.

Disposition

Affirmed.


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