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PAUL MORGAN VAN DYKE v. COMMONWEALTH PENNSYLVANIA (09/24/87)

decided: September 24, 1987.

PAUL MORGAN VAN DYKE, 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 Paul Morgan Van Dyke, Parole No. 5025-S.

COUNSEL

Lewis J. Bott, Assistant Public Defender, for petitioner.

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

Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 109 Pa. Commw. Page 514]

Paul Morgan Van Dyke (Petitioner) filed a petition for review with this Court seeking review of a denial by the Pennsylvania Board of Probation and Parole (Board) of a request to process a parole application. For the reasons set forth below, we affirm the actions of the Board.

The relevant facts are as follows: Petitioner is presently incarcerated at the Federal Penitentiary in Morgantown, West Virginia, serving an indeterminate sentence.*fn1 On or about February 5, 1985, Petitioner was arrested by the Pennsylvania State Police and

[ 109 Pa. Commw. Page 515]

    charged with possession of a controlled substance and possession of drug paraphernalia. On June 6, 1985, Petitioner was sentenced by the Luzerne County Court of Common Pleas to a one to two year term of incarceration. Petitioner's Pennsylvania sentence is to run concurrent with his federal sentence.

Petitioner's minimum sentence on the state charge expired on June 6, 1986 and his maximum sentence expired on June 6, 1987. Some time prior to the expiration of the minimum sentence of his state charge, Petitioner requested that the Board consider him for parole.*fn2 The Board has refused to process Petitioner's application for parole because he is out-of-state, and, therefore, according to the Board, Petitioner is unable to be interviewed for parole as required by Section 22 of the Act of August 6, 1941 (Act), P.L. 761, as amended, 61 P.S. ยง 331.22.

Although the time period for Petitioner's maximum sentence expired on June 6, 1987 and, therefore, based upon the factual circumstances herein, Petitioner's appeal is moot, we believe we are presented here with a legal question capable of repetition yet evading review.*fn3 For this reason, we will proceed to consider the legal question involved here -- whether the Board's refusal to act upon Petitioner's application for parole because he is located in an out-of-state prison was proper.

Petitioner contends that the Board abused its discretion and acted unlawfully in refusing to consider Petitioner's request for parole on the pretext that Petitioner is ...


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