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JOHN LOTZ v. COMMONWEALTH PENNSYLVANIA (09/23/88)

decided: September 23, 1988.

JOHN LOTZ, 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 John Lotz, Parole No. 9860R.

COUNSEL

Ellen K. Barry, Assistant Public Defender, for petitioner.

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

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 120 Pa. Commw. Page 539]

John Lotz (Petitioner) appeals from a denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board). We affirm.

Petitioner was paroled in May of 1985 from a 1 year and four month to 5 year sentence for forgery. In October 1985, Petitioner was recommitted for twenty-four months for violations of his parole. Petitioner was released on parole again in February 1987. On May 13, 1987, Petitioner was charged with driving under the influence of alcohol. On June 23, 1987, Petitioner was arrested for a technical violation of parole condition No. 6 for consuming alcohol. A parole violation hearing was subsequently held where Petitioner admitted the parole violation. Huntingdon County District Attorney requested leniency before the Board. Thereafter, the criminal charges were dropped.

On December 28, 1987, the Board recommitted Petitioner as a technical parole violator to serve fifteen months backtime. Petitioner requested administrative relief which was denied. This appeal*fn1 followed.

Petitioner contends, as his sole basis for appeal, that the Board abused its discretion by ignoring substantial

[ 120 Pa. Commw. Page 540]

    mitigating circumstances when it recommitted him for fifteen months. We disagree.

This court will not review the Board's exercise of discretion in imposing backtime for parole violations where the violations are supported by substantial evidence and the backtime imposed is within the published presumptive ranges for those violations. Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 49, 484 A.2d 413 (1984). The presumptive range for violating special conditions of parole relating to consumption of alcohol is 3 to 18 months. 37 Pa. Code ยง 75.4. Johnson v. Pennsylvania Board of Probation and Parole, 107 Pa. Commonwealth Ct. 183, 527 A.2d 1107 (1987). Since the Board's imposition of 15 months backtime is within the presumptive range, we will not disturb it.

The Board contends that Appellant's appeal is "wholly frivolous," warranting an assessment of costs and reasonable attorney's fees pursuant to Pa. R.A.P. 2744 jointly and severally against Petitioner, Petitioner's appellate counsel, and the Public Defender's ...


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