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RONALD E. MYERS v. COMMONWEALTH PENNSYLVANIA (02/23/89)

decided: February 23, 1989.

RONALD E. MYERS, 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 case of Ronald E. Myers, Parole No. 8941J.

COUNSEL

Michael L. Bangs, Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 123 Pa. Commw. Page 605]

Ronald E. Myers appeals from the December 3, 1987 decision of the Pennsylvania Board of Probation and Parole (Board) denying Petitioner's petition for administrative relief from the Board revocation order of November 4, 1987, which recommitted Petitioner to serve fifteen months of backtime as a convicted parole violator.

Petitioner's original sentence was imposed on January 6, 1981. Petitioner was sentenced in Fulton County to serve a term of one year and four months to four years of imprisonment for the offense of theft. He was released on parole in 1982, recommitted as a technical violator in 1983, and released on reparole, effective March 18, 1983. Effective May 1, 1984, Petitioner was declared delinquent by the Board. His whereabouts were unknown until February 4, 1986 when Petitioner was arrested on new criminal charges in Adams County. The Board's parole violation warrant to commit and detain was filed on that same date.

On February 18, 1986, Petitioner received a violation hearing in the Bedford County Prison before a Board hearing examiner, having waived his right to a full Board violation hearing, and to counsel. On March 28, 1986, the Board ordered him to be recommitted as a technical parole violator to a state institution to serve his unexpired

[ 123 Pa. Commw. Page 606]

    term of eight months and five days. On April 8, 1986, Petitioner pled guilty to the charge of burglary in Fulton County Common Pleas Court and was released on bail two days later. The Board received official verification of Petitioner's new criminal conviction on August 6, 1986. On June 23, 1987, Petitioner was sentenced to serve forty-two to 240 months in a state correctional institution, with sixty-six days of good time credit. The effective date of sentence was July 20, 1987.

The Board thereafter charged Petitioner with violating his parole by sustaining a new criminal conviction. On August 28, 1987, Petitioner was afforded a revocation hearing at which counsel raised objections to the timeliness of the revocation hearing as beyond the 120-day limit of 37 Pa. Code § 71.4(2), as amended January 16, 1988 and now appearing at 7 Pa. B. 487 (1977). The Board found that the hearing was timely held and subsequently, ordered Petitioner to be recommitted as a convicted parole violator to serve fifteen months of backtime. Petitioner and his counsel filed an administrative appeal with the Board raising the timeliness issue. The Board denied that appeal, and petition for review to this Court followed.

The scope of review of a Board recommitment order is limited to a determination of whether the Board's decision is in accordance with the law, is supported by substantial evidence, or is in violation of the constitutional rights of the parolee. O'Hara v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 356, 487 A.2d 90 (1985); Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

Petitioner submits that under 37 Pa. Code § 71.4(2), the Board is required to provide a parolee with a revocation hearing within 120 days of a verdict or plea of guilty. Petitioner emphasizes that the Board revocation hearing ...


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