decided: June 24, 1987.
JOHN R. CLARK, PETITIONER
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 John R. Clark, Parole No. 7353-R, dated August 19, 1986.
Deborah Tetzlaff Lux, Assistant Public Defender, with her, Kimberly Hamilton, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
President Judge Crumlish, Jr., and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 107 Pa. Commw. Page 94]
John R. Clark appeals a Pennsylvania Board of Probation and Parole (Board) order denying his request for administrative relief from a recommitment order. We vacate and remand in part and affirm in part.*fn1
[ 107 Pa. Commw. Page 95]
While on parole from a previous conviction, Clark was arrested and charged on a ten-count criminal information.*fn2 Pursuant to a plea agreement, Clark entered a guilty plea to one count of delivery of methamphetamine and a plea of nolo contendere to one count of criminal conspiracy. The Board recommitted Clark (1) for the unexpired term of his sentence as a convicted parole violator (CPV) based on the methamphetamine and conspiracy offenses and (2) for six months as a technical parole violator (TPV) for possession of a controlled substance. Subsequently, the Board modified the order, specifying that the TPV recommitment referred to possession of marijuana, one of the counts that the Commonwealth had agreed not to prosecute in accordance with the plea agreement.
The essence of Clark's initial contention is that because marijuana possession constitutes one of the overt acts upon which the criminal conspiracy offense was based he should not also be subject to technical parole recommitment for that same act. Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985).*fn3
[ 107 Pa. Commw. Page 96]
In Rivenbark, our Supreme Court determined that an improper duplication occurs when a parolee is recommitted as a technical violator for acts constituting new crimes for which he was convicted. We explained in Threats v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 315, 518 A.2d 327 (1986), that an act which is "coextensive" or "coterminous" with the criminal acts cannot be the basis for a technical violation. Even if the technical violation is not entirely coextensive with the criminal activity, but supplies a necessary element of the crime, a duplicative recommitment based on the technical violation is prohibited. Id. at 323, 518 A.2d at 330.
In the case of criminal conspiracy, the Commonwealth must prove the defendant's involvement in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy. Commonwealth v. Jackson, 316 Pa. Superior Ct. 553, 463 A.2d 1036 (1983), rev'd on other grounds, 506 Pa. 469, 485 A.2d 1102 (1984). In this instance, Count 10 of the Criminal Information, upon which Clark entered his nolo contendere plea, charged him with conspiracy
[ 107 Pa. Commw. Page 97]
to promote or facilitate the commission of crimes as described in Counts 1 through 9. Therefore, because Count 10 makes reference to as many as nine acts, including marijuana possession (Count 4), each is conceivably a necessary element of the conspiracy crime and presumably could not also be used to base a technical parole violation upon.*fn4 However, our review of the record does not reveal which of the nine counts constituted the overt act (or acts) relied upon by the Commonwealth to negotiate this conspiracy plea agreement. Although one could infer that the sole overt act related to the conspiracy offense was delivery of methamphetamine, the charge to which Clark pleaded guilty, we decline to do so. Therefore, inasmuch as the record is inadequate for our review, we vacate the Board's TPV recommitment for possession of marijuana and remand for findings as to the actual terms of the plea agreement.
Clark further contends that the Board erred by exceeding the presumptive range for his convicted parole violations. However, the Board provided adequate written justification for the amount of backtime given in accordance
[ 107 Pa. Commw. Page 98]
with 37 Pa. Code § 75.1(c). Clark's testimony that he wanted to "max out" his sentence and not deal with parole people any longer clearly supports the Board's conclusion that Clark has a negative attitude and interest in parole.
Accordingly, we vacate that portion of the Board's order recommitting Clark as a TPV for marijuana possession and remand for findings consistent with this opinion. We affirm in all other respects.
The Pennsylvania Board of Probation and Parole order, Parole No. 7353-R dated August 19, 1986, denying administrative relief to John Clark is vacated, and the modified parole revocation order dated August 13, 1986, is vacated. The order dated June 19, 1986, is vacated as to the recommitment for the technical violation of parole condition 5A and remanded for findings as to the terms of the plea agreement. The June 19, 1986 order is affirmed in all other respects.
Orders of August 13, 1986 and August 19, 1986 vacated. Order of June 19, 1986 vacated in part, affirmed in part and remanded.