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DAVID PASTUSZEK v. COMMONWEALTH PENNSYLVANIA (05/20/88)

decided: May 20, 1988.

DAVID PASTUSZEK
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 David Pastuszek, SCIC No. R-4412, Parole No. 3122-P, dated July 24, 1987.

COUNSEL

Patrick J. Flannery, Assistant Public Defender for Luzerne County, for petitioner.

Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 118 Pa. Commw. Page 7]

David Pastuszek (Petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief and recommitting him as a convicted parole violator. We affirm.

Petitioner was last paroled by the Board on July 23, 1983 from an indeterminate sentence of six years. Petitioner was subsequently arrested and incarcerated, on March 27, 1985, on a burglary charge in Schuylkill County. Soon thereafter, additional criminal charges were filed against Petitioner in Northumberland and Dauphin Counties. Petitioner pled guilty to the Schuylkill county charge on September 3, 1985 and was sentenced to a term of five-to-twenty-three months in the

[ 118 Pa. Commw. Page 8]

    county prison. He was granted county parole at the time of sentencing.

Petitioner's initial state parole revocation hearing was scheduled for September 20, 1985, but on that date he requested a continuance of the hearing until the disposition of all pending criminal charges. Petitioner alleges he was under the influence of prescription Thorazine, Socolox and Benadryl at that time. Eventually, Petitioner was found guilty of most of the outstanding charges, with the last conviction occurring on November 24, 1986. At all times between March 27, 1985 and November 24, 1986, Petitioner was incarcerated in various county prisons because of the charges pending against him.

A full Board revocation hearing was scheduled for March 11, 1987, but was continued due to Petitioner being out of SCI-Camp Hill on an unrelated writ. Petitioner's revocation hearing was finally held on April 8, 1987, after which the Board recommitted him to serve the remainder of his unexpired, indeterminate six-year term. Petitioner's subsequent request for administrative relief was denied. This appeal follows.*fn1

Petitioner contends that his hearing was untimely because it was not held within 120 days as required by 37 Pa. Code ยง 71.4(2).*fn2 ...


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