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GLENN GOTTSCHALK v. COMMONWEALTH PENNSYLVANIA (04/01/87)

decided: April 1, 1987.

GLENN GOTTSCHALK, 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 Glenn Gottschalk, dated July 3, 1986.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief-Appellate Division, and Melaine Shannon Rothey, Appellant Counsel, 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

[ 105 Pa. Commw. Page 135]

Mr. Gottschalk appeals here from the denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board). We vacate and remand.

[ 105 Pa. Commw. Page 136]

Gottschalk was paroled from his original sentence on July 25, 1980. While on parole, he was arrested and convicted of rape and aggravated assault. On March 16, 1983, the Board entered the following recommitment order after a violation and revocation hearing:

Recommit as a technical parole violator to serve 12 months, and as a convicted parole violator to serve unexpired term -- 4 years, 7 months, 22 days. Evidence relied on: conviction in a court of record. Court documents. Agent's testimony. Conviction in a court of record for the offense of rape has a presumptive range of 30 to 40 months. The presumptive range for violation of condition # 5C 6 to 18 months. Reasons: Conviction in a court of record established. Violation of condition # 5C established. Assaultive nature of offense.

Thereafter, Gottschalk requested the Board to review its order in light of our Supreme Court's decision in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). Acceding to that request, the Board then entered the following order:

Modify Board action of 3-16-83 by deleting all reference to technical parole violation. Reaffirm recommitment as a CPV to serve unexpired term -- 4 years, 7 months, 22 days. Maximum remains at 11-8-87.

Gottschalk's sole complaint is that the Board's deletion of the recommitment time for a technical parole violation under Rivenbark has had no practical effect upon his recommitment time. To put it another way, Gottschalk contends that ...


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