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JAMES AMAKER v. COMMONWEALTH PENNSYLVANIA (07/20/88)

decided: July 20, 1988.

JAMES AMAKER, 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 James Amaker, Parole No. 4695G.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, Rita L. Yake, Appellate Counsel, John H. Corbett, Jr., Chief-Appellate Division, for petitioner.

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

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

Author: Colins

[ 118 Pa. Commw. Page 64]

James Amaker (petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which ordered petitioner recommitted for twenty-four (24) months as both a technical violator and a convicted parole violator. Having been denied his request for administrative relief, this appeal follows. We affirm.

On October 20, 1980, petitioner was paroled with the condition that he refrain from consuming alcohol (special condition No. 6). On January 26, 1987, petitioner was arrested and charged with driving under the influence of alcohol (DUI).*fn1 Petitioner waived his right to

[ 118 Pa. Commw. Page 65]

    a full Board hearing and, on June 12, 1987, was granted a hearing before a Board examiner. At this hearing, the Board presented a certified copy of petitioner's conviction of DUI and, additionally, petitioner admitted that he violated special condition No. 6. Therefore, petitioner was ordered recommitted for a total backtime of twenty-four (24) months, eighteen (18) months for the technical violation and six (6) months as a convicted violator.

Petitioner argues that since the consumption of alcohol stemmed directly from his conviction for DUI, his recommitment as a technical violator is infirm. To support this contention, petitioner relies on Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985) and its holding that the Board may not use as a basis for a technical violation behavior which also led to a criminal conviction. Petitioner further argues that under the necessary element rationale of our recent decision in Morrow v. Pennsylvania Board of Probation and Parole, 114 Pa. Commonwealth Ct. 48, 538 A.2d 595 (1988), that the consumption of alcohol is an element of the associated criminal offense, thereby alleging that the Board exceeded its authority in imposing an independent period of recommitment.

The Board successfully counters petitioner's argument by stating that this Court has consistently held that a parolee may be properly committed as a technical parole violator for consumption of alcohol in violation of a special condition of parole where the parolee is also convicted of the offense of driving under the influence. Kramer v. Pennsylvania Board of Probation and Parole, 104 Pa. Commonwealth Ct. 235, 521 A.2d 975 (1987), appeal denied, 517 Pa. 600, 535 A.2d 1059 (1987); Nicastro v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 569, 518 A.2d 1320

[ 118 Pa. Commw. Page 66]

(1986), appeal denied, 515 Pa. 615, 530 A.2d 869 (1987); Keough v. Pennsylvania Board of Probation and Parole, 95 Pa. Commonwealth Ct. 252, 505 A.2d 378 (1986). Furthermore, in Morrow, we specifically stated that the necessary element rationale "in no way ...


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