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PERNELL SMITH v. COMMONWEALTH PENNSYLVANIA (06/22/88)

decided: June 22, 1988.

PERNELL SMITH, 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 Pernell Smith, No. 3167S.

COUNSEL

Vincent J. Quinn, Assistant Public Defender, for petitioner.

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

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 117 Pa. Commw. Page 221]

A Pennsylvania Board of Probation and Parole (Board) hearing examiner recommitted Pernell Smith as a technical parole violator to serve ten months backtime for violating special condition six of his parole (must maintain employment once obtained). The Board denied

[ 117 Pa. Commw. Page 222]

Smith's petition for administrative relief. Smith appeals; we affirm.*fn1

Smith was arrested and detained while on parole. At the violation hearing, Smith waived his rights to counsel, preliminary and full Board hearings, and admitted that he failed to maintain employment.*fn2 He argues that the backtime imposed by the Board was excessive and unreasonable, because he quit his employment in anticipation of securing a higher paying position.

This contention is without merit. When a finding of violation is supported by substantial evidence and the recommitment period imposed is within the presumptive range, this Court will not review the Board's discretionary imposition of backtime. Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 49, 484 A.2d 413 (1984). Here, the backtime imposed is well within the presumptive range for violations of special parole conditions (three to eighteen months), 37 Pa. Code ยง 75.3(f), Johnson v. Pennsylvania Board of Probation and Parole, 107 Pa. Commonwealth Ct. 183, 527 A.2d 1107 (1987); Wagner v. Pennsylvania Board of Probation and Parole, 92 Pa. Commonwealth Ct. 132, 498 A.2d 1007 (1985).

The Board contends that Smith's appeal is "wholly frivolous," warranting an assessment of costs and reasonable attorneys fees pursuant to Pa. R.A.P. 2744, which provides, in pertinent part:

In addition to other costs allowable by general rule or Act of ...


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