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MELVIN GREGORY v. COMMONWEALTH PENNSYLVANIA (11/16/87)

decided: November 16, 1987.

MELVIN GREGORY, 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 Melvin Gregory, Parole No. 3653-M.

COUNSEL

Veronica R. Anzalone, First 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 Judge MacPhail.

Author: Macphail

[ 111 Pa. Commw. Page 119]

Mr. Gregory appeals here from a denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board). We vacate and remand.

On November 22, 1977, Gregory was sentenced to a term of not less than five nor more than ten years for the crimes of rape and simple assault with the maximum

[ 111 Pa. Commw. Page 120]

    release date of June 6, 1987. He was paroled on July 20, 1982 and recommitted on July 7, 1986 for thirty-six months for multiple technical violations. An appeal from the Board's denial of administrative relief with respect to the substantive merit of those violations was denied by this Court on September 11, 1987. Gregory v. Pennsylvania Board of Probation and Parole, 109 Pa. Commonwealth Ct. 294, 530 A.2d 1048 (1987).

On December 5, 1986, Gregory was sentenced to a term of one to three years for the crimes of theft and forgery which were unrelated to the technical violations for which Gregory had been recommitted on July 7, 1986. The Board, on December 8, 1986, recommitted Gregory for an additional term of twenty-four months as a convicted parole violator, making a total recommitment term of sixty months and a new maximum release date of September 13, 1991.

Gregory's first contention is that the Board exceeded its statutory authority when it recommitted him for thirty-six months for his technical violations notwithstanding the fact that his maximum release date under his original sentence was June 6, 1987. Section 21.1(b) of the Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401 (Act), 61 P.S. ยง 331.21a(b), provides in pertinent part as follows:

(b) Technical Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution in the Commonwealth who, during the period of parole, violates the terms and conditions of his parole, other than by the commission of a new crime of which he is convicted or found guilty by a judge or jury ...


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