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LAWRENCE E. MCCLINTON v. COMMONWEALTH PENNSYLVANIA (08/26/88)

decided: August 26, 1988.

LAWRENCE E. MCCLINTON, 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 Re: Lawrence E. McClinton, Parole No. 3534-K, dated November 5, 1987.

COUNSEL

Christopher J. St. John, Assistant Public Defender, for petitioner.

Timothy P. Wile, Assistant Chief Counsel, with him, 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 Senior Judge Blatt.

Author: Blatt

[ 119 Pa. Commw. Page 174]

Lawrence E. McClinton (petitioner) petitions for our review of the denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board). We will affirm.

The petitioner was serving a term of imprisonment of ten to twenty years for the offense of second degree murder at the time of his parole on April 9, 1984. He was arrested on January 22, 1987 for the crimes of robbery, burglary, terroristic threats and simple assault, all stemming from one incident.*fn1 A verdict of guilty was returned from the jury on all four charges on June 17, 1987. He was notified on June 26, 1987 that he was being charged as a convicted parole violator as a result of these four new offenses.

After the petitioner's revocation hearing of July 9, 1987, the Board ordered the petitioner to be recommitted as a convicted parole violator to serve an additional 60 months, for a total of 78 months backtime. This decision was challenged by the petitioner in his request for

[ 119 Pa. Commw. Page 175]

    administrative relief and in his petition for review to this Court.

The petitioner raises three issues for our review.*fn2 The first is whether the Board erred in aggregating backtime for all four offenses. His point is that, pursuant to Section 3502(d) of the Crimes Code (Code), 18 Pa. C.S. ยง 3502(d), he may not be convicted of both burglary and the additional charges,*fn3 and that, therefore, he can only be recommitted for burglary. When the Board was presented with this issue in the petitioner's request for administrative relief, it responded:

The Board does not litigate the case and acts solely on the findings of the Common Pleas Court. If your motion and [sic] arrest and [sic] judgment [sic] is granted, the case will be ...


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