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ANTHONY PATRICK v. COMMONWEALTH PENNSYLVANIA (10/07/87)

decided: October 7, 1987.

ANTHONY PATRICK, 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 Anthony Patrick, dated September 14, 1987.

COUNSEL

Francis M. Walsh, Assistant Public Defender, for petitioner.

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

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Dissenting Opinion by Judge Palladino.

Author: Barbieri

[ 110 Pa. Commw. Page 122]

In this parole revocation appeal, Anthony Patrick, petitioner, appeals here an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board parole revocation order. That revocation order recommitted him as a technical and a convicted parole violator to serve eighteen months on backtime effective March 14, 1986. We shall affirm.

[ 110 Pa. Commw. Page 123]

The pertinent facts are as follows. The Board granted Patrick parole from a sentence of three and one-half to seven years and he was released from custody on August 20, 1984. While on parole, he was arrested by Montgomery County authorities on March 1, 1985, and charged with Violating the Uniform Controlled Substance, Drug, Device, and Cosmetic Act,*fn1 Retail Theft,*fn2 and Escape.*fn3 The Board lodged its warrant and detainer against him on March 21, 1985. There is no assertion that he posted bail on the new charges and Patrick remained imprisoned. On June 13, 1985, he appeared in Montgomery County Common Pleas Court and pleaded guilty to the new charges with sentencing being deferred. After his guilty plea, the Board provided him with a parole Violation/Revocation Hearing. On November 27, 1985, the Board ordered him recommitted to serve eighteen months on backtime as a technical and a convicted parole violator, when available.*fn4 On March 14, 1986, Patrick appeared before the Honorable Horace A. Davenport at which time he was sentenced on the charges to which he pleaded guilty on June 13, 1985. Judge Davenport imposed a sentence of concurrent terms of nine to eighteen months with an effective date of March 1, 1985. At the time of sentencing, Judge Davenport also granted him parole on that sentence retroactive to October 15, 1985. The Board reaffirmed

[ 110 Pa. Commw. Page 124]

    its November 27, 1985, revocation order on June 13, 1986, and commenced Patrick's parole violation backtime as of March 14, 1986, the date of his sentencing on the new convictions, establishing a tentative reparole date of September 14, 1987. Patrick sought administrative relief pursuant to 37 Pa. Code § 71.5(h) contending he was entitled to commence his parole violation backtime as of October 15, 1985, the date to which Judge Davenport had made his county parole retroactive. The Board denied administrative relief and this appeal followed.

Patrick's sole contention in this appeal is that the Board erred by failing to credit his parole violation backtime with the period he was confined from October 15, 1985, through March 14, 1986. Put another way, he argues that the Board erred by failing to recognize the retroactive nature of the common pleas court's grant of parole on his new sentence. The issue of the validity of a grant of retroactive parole is, to our knowledge, one of first impression in the appellate courts of this Commonwealth.

We initially recognize that it is well-settled in this Commonwealth that the courts have no inherent right to grant paroles and that any power or authority to do so must come from the General Assembly. See e.g., Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1943); Commonwealth v. Harradine, 148 Pa. Superior Ct. 451, 25 A.2d 576 (1942); Commonwealth ex rel. Burrell v. Fluck, 47 Pa. D. & C. 356 (C.P. Montgomery 1943); Commonwealth v. Prezetos, 29 North. 337 (Pa. Q.S. 1939). The power of the common pleas court to grant paroles is conferred by the Act of June 19, 1911, P.L. 1059, as amended, 61 P.S. § 314. That statute provides that the common pleas courts are authorized, after due hearing, to release on parole, any prisoner under their jurisdiction who is confined in a county jail or prison. This authority was repealed in

[ 110 Pa. Commw. Page 125]

    part by Section 17 of the Act of August 6, 1941 (Parole Act), P.L. 861, as amended, 61 P.S. § 331.17, that vests the exclusive power to parole prisoners who have been sentenced to a maximum term of two years or more in the Board. Section 26 of the Parole Act, 61 P.S. § 331.26, provides that the common pleas courts retain paroling authority for prisoners under their jurisdiction subject to sentences with maximum terms of less than two years. The Pennsylvania Supreme Court held that the procedure contained in 61 P.S. § 314 was applicable to all prisoners subject to a maximum sentence of less than two years whether confined in a county prison or a state correctional institution. Georgevich v. Court of Common Pleas of Allegheny County, 510 Pa. 285, 507 A.2d 812 (1986). Thus, since the concurrent sentence imposed by the common pleas court had a maximum term of eighteen months, clearly less than two years, it retained paroling authority over that sentence under 61 P.S. §§ 314 and 331.26. Had that sentence been a consecutive sentence, it would have been automatically aggregated with Patrick's prior sentence under Section 9757 of the Sentencing Code, 42 Pa. C.S. § 9757, with exclusive paroling authority over that aggregated sentence being vested in the Board. See Gillespie v. Department of Corrections, 106 Pa. Commonwealth Ct. 500, 527 A.2d 1061 (1987). See also Ambrek v. Clark, 287 F. Supp. 208 (E.D. Pa. 1968).

While the common pleas had the power and authority to grant Patrick parole on his new sentences, our analysis of the pertinent statutes and caselaw convinces us that the common pleas court lacked the power to make its grant of parole retroactive to a date prior to the date of the actual imposition of sentence. We initially note that the statutory language contained in 61 P.S. § 314 requires a verified petition for parole be filed on the prisoner's behalf and the common pleas court is required

[ 110 Pa. Commw. Page 126]

    to hold a hearing before ruling on the parole petition. Also significant is Section 9760(1) of the Sentencing Code, ...


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