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VICTOR J. HERNANDEZ v. COMMONWEALTH PENNSYLVANIA (09/30/88)

decided: September 30, 1988.

VICTOR J. HERNANDEZ, 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 Victor J. Hernandez, Parole No. 4075R.

COUNSEL

Thomas W. Bailey, 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 Senior Judge Barbieri.

Author: Barbieri

[ 120 Pa. Commw. Page 171]

Victor J. Hernandez (Petitioner) appeals an order of the Pennsylvania Board of Probation and Parole (Board)

[ 120 Pa. Commw. Page 172]

    denying his request for administrative relief from a Board order recommitting him to the State Correctional Institution as a convicted parole violator.

On October 5, 1985, Petitioner was paroled by the Board from a sentence of one to three years imposed as a result of his conviction of the offense of risking a catastrophe.*fn1 Petitioner was not released from confinement at that time but remained in custody pursuant to an Immigration and Naturalization Services (INS) detainer. Petitioner was confined on the INS detainer at the Salem County, New Jersey Correctional Facility until his release on August 4, 1986.

In February of 1987, Petitioner sold a half-ounce of Cocaine to an undercover narcotics agent in Harrisburg. As a result of this transaction, he was arrested and charged with unlawful delivery of a controlled substance in May of 1987. He was later convicted of the charge on September 18, 1987.

Petitioner testified at a parole revocation hearing before the Board on December 9, 1987. By order recorded on that date, the Board recommitted Petitioner as a convicted parole violator and imposed twelve months backtime.

Petitioner filed a request for administrative relief dated January 29, 1988, which was denied. On appeal to this Court, Petitioner contends he should receive credit against his maximum sentence for the ten ...


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