Appeal from the Order of the Pennsylvania Board of Probation and Parole, in case of Gary G. Pounds, dated April 26, 1986.
Gary G. Pounds, 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 Barry.
[ 106 Pa. Commw. Page 468]
Gary G. Pounds, the petitioner, appeals from an order of the Board of Probation and Parole (Board) which denied petitioner's request for administrative relief and ordered petitioner to serve a total of ninety (90) months backtime for various parole violations.
Petitioner was originally convicted of murder in the third degree and sentenced to a prison term of ten to twenty years. On July 25, 1985, petitioner was released on parole. On August 22, 1985, petitioner was arrested and charged with simple assault. Petitioner was detained pursuant to a Board warrant issued that same day. Petitioner waived his right to a preliminary hearing and requested that the revocation hearing be continued until after disposition of the new criminal charges.
In January of 1986, petitioner pled guilty to simple assault in the Court of Common Pleas of Allegheny County. Thereafter, a revocation hearing was held before a hearing examiner, petitioner having waived his right to a hearing before a quorum of the Board. At the hearing petitioner admitted that he had pled guilty to simple assault and that he had violated a condition of parole requiring him to refrain from consuming alcohol. Petitioner's attorney also admitted that petitioner had been in possession of a knife, thereby violating another condition of parole. The hearing examiner recommended that petitioner be ordered to serve six months of backtime for consuming alcohol, twenty-four months for possessing a knife and sixty months as a convicted parole violator. While the last two recommendations were greater than the presumptive ranges, the hearing examiner justified such recommendations because petitioner was a convicted murderer who had engaged in assaultive behavior with a weapon less than one month after being released on parole.
Petitioner filed an application for administrative relief. The Board denied such relief and accepted the recommendations
[ 106 Pa. Commw. Page 469]
of the hearing officer, thereby ordering petitioner to serve a total of ninety months of backtime. The Board exceeded the presumptive ranges for the same reasons as given by the hearing examiner. This appeal followed.
Petitioner first argues that he was denied due process and equal protection because the Board denied him records, documents and transcripts at the time he was preparing his request for administrative relief. The Board admits that it does not transcribe the notes of testimony of a revocation hearing unless and until the parolee files a petition for review with this Court. Petitioner recognizes that failure to raise an issue on the request for administrative relief can constitute a waiver of that claim in this Court. Brewer v. Pennsylvania Board of Probation and Parole, 96 Pa. Commonwealth Ct. 423, 507 A.2d 934 (1986). He therefore argues that the failure to provide a transcript of the revocation hearing at the time of preparing a request for administrative relief amounts to a constitutional deprivation. While we believe this situation is fraught with the possibility of constitutional violations, no actual violation has been established.
Petitioner, for this appeal, has been provided with the transcript he sought below. Yet, petitioner identifies no issues which he failed to raise in his request for administrative relief because of the lack of a transcript at that time. Were the petitioner able to so identify an issue, this Court would not hold that issue has been waived. See Pa. R.A.P. 1551(a)(3). The most rudimentary concept of justice would allow no other holding. Since petitioner has not been able ...