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RICKIE JOHNSON v. COMMONWEALTH PENNSYLVANIA (10/08/87)

decided: October 8, 1987.

RICKIE JOHNSON, 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 the case of Rickie Johnson, Parole No. 8186K.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, Richard S. Levine, Appellate Counsel, and John H. Corbett, Jr., Chief, Appellate Division, for petitioner.

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

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

Author: Barbieri

[ 110 Pa. Commw. Page 143]

Rickie Johnson, Petitioner, appeals here an order of the Pennsylvania Board of Probation and Parole (Board) that rescinds a previously issued grant of parole. Johnson contends that the Board violated his due process rights by failing to provide him with notice, an opportunity to be heard, and counsel representation prior to rescinding its prior grant of parole. We disagree and will dismiss the petition for review.

The following facts are pertinent. Johnson was originally sentenced to a term of two to twenty years as a

[ 110 Pa. Commw. Page 144]

    result of his conviction of the offense of Robbery.*fn1 After being granted parole on that sentence, he was returned to prison as a technical and a convicted parole violator in 1981 following his conviction in Philadelphia County for Robbery and Criminal Conspiracy.*fn2 He received a sentence of six to twenty years as a result of his 1981 conviction. In its parole revocation order of September 24, 1981, the Board ordered that he serve twelve months on backtime as a technical parole violator and thirty-six months on backtime as a convicted parole violator, for a total of forty-eight months on backtime. That order also granted Johnson reparole to his detainer sentence to be effective September 25, 1985.

On April 27, 1985, Johnson was charged with a Class I Misconduct*fn3 as a result of a confrontation with a corrections officer at the State Correctional Institution at Graterford (SCI-Graterford). He was found guilty of that misconduct following a hearing on May 2, 1985, and ordered confined in the Restrictive Housing Unit (RHU) for thirty days and lost his institution job. On August 9, 1985, Johnson was involved in another altercation at SCI-Graterford wherein he stabbed another inmate after being confronted by corrections officers for being in an unauthorized area. Following a misconduct hearing held on August 12, 1985, at SCI-Graterford, he was found guilty of a Class I Misconduct and ordered confined in the RHU for six months and again lost his institution job. The Department of Corrections (Department) subsequently informed the Board of Johnson's misconducts. He was interviewed by the Board at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh), to which he had been transferred, in December, 1985. On December 10, 1985, the Board modified

[ 110 Pa. Commw. Page 145]

    its order of September 24, 1981, granting parole to Johnson effective September 24, 1985, and changed his reparole date to June 24, 1986, due to his history of prison misconducts. Johnson has filed an action in this Court seeking to have his parole become effective as of September 24, 1985, and adjust the minimum and maximum terms of his six to twenty year detainer sentence accordingly.

In this appeal, Johnson argues that (1) the Board violated his due process rights by rescinding its prior grant of parole without affording him prior notice and an opportunity to be heard and be represented by counsel; and (2) that the nine months the Board directed that he serve prior to his new reparole date amounts to an abuse of discretion. We shall review these issues in the order stated. We are also mindful that this is not a parole revocation order that Johnson seeks us to review, rather it is an order rescinding a previous Board order granting parole. As such, our review of such an order is severely limited. See Reider v. Pennsylvania Board of Probation and Parole, ...


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