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

COMMONWEALTH COURT OF PENNSYLVANIA


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. § 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 located out-of-state. Petitioner argues that the

[ 109 Pa. Commw. Page 516]

Board's refusal to even consider Petitioner for parole is unlawful and an abuse of discretion pursuant to Section 19 of the Parole Act, 61 P.S. § 331.19.*fn4

The Board counters with Section 22 of the Act, 61 P.S. § 331.22 which provides that before an application for parole can be granted or dismissed, a district supervisor shall interview a prospective parolee in person within six months prior to the granting or dismissal of the parole application. The Board further argues that because Petitioner is incarcerated out-of-state and is in federal custody, it is without authority to act pursuant to Section 21 of the Act, 61 P.S. § 331.21.

The General Assembly has granted the Board broad discretion in parole matters falling under its jurisdiction. See Weyand v. Pennsylvania Board of Probation and Parole, 94 Pa. Commonwealth Ct. 32, 503 A.2d 80 (1986). However, the Board only possesses those powers conferred upon it by the General Assembly and the Act, 61 P.S. §§ 331.1-331.4.

Two sections of the Act which discuss the powers of the Board with respect to parolees are Section 17 of the Act*fn5 and Section 21 of the Act.*fn6 Section 17 of the Act provides in relevant part:

[ 109 Pa. Commw. Page 517]

    within six months also pertinently provides that "In no case shall a parole be granted, or an application for parole be dismissed unless a district supervisor shall have seen and heard him in person". Section 11 of the Act, 61 P.S. § 331.11 requires that "Each district parole office shall be in charge of a district supervisor who shall be appointed by the board, with the approval of the Governor . . ." . Thus, since Petitioner is not within a parole district of this Commonwealth, the Board is not required to process his application for parole. Moreover, the six month time period of Section 22 of the Act cannot begin to run until a prisoner is within the confines of this Commonwealth.*fn9

Therefore, the Board does not have authority to act on a parole application with regard to a prisoner who is incarcerated in a prison outside of this state and cannot exercise its parole authority until the prisoner is returned to this Commonwealth.

Accordingly, the order of the Board is affirmed.

Order

And Now, this 24th day of September, 1987, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.

Disposition

Affirmed.


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