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JOSEPH MCMAHON v. COMMONWEALTH PENNSYLVANIA (05/04/89)

decided: May 4, 1989.

JOSEPH MCMAHON, 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 Joseph McMahon, Parole No. 1360H.

COUNSEL

Robert B. Stewart, III, Chief Public Defender of Huntingdon County, for petitioner.

Timothy P. Wile, 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.

Author: Smith

[ 125 Pa. Commw. Page 587]

Petitioner, Joseph McMahon, appeals from the order of the Pennsylvania Board of Probation and Parole (Board) denying Petitioner's administrative appeal of May 3, 1988.

Petitioner challenges the timeliness of his revocation hearing of March 22, 1988, asserting that it was not held within the 120-day time limit required by 37 Pa. Code § 71.4(1).*fn1 Petitioner further contends that the Board

[ 125 Pa. Commw. Page 588]

    erred in calculating the time owed by him on his maximum sentence.

Petitioner was originally sentenced on November 2, 1973 by the Warren County Court of Common Pleas to serve five to ten years of imprisonment on his conviction for involuntary deviate sexual intercourse. The maximum term of that sentence would have originally expired on July 7, 1983. Petitioner was paroled on his Warren County sentence on December 29, 1978 and was re-entered to serve a detainer sentence of two to four years imposed by the Centre County Court of Common Pleas on Petitioner's conviction for escape from the State Correctional Institution at Rockview (SCI-Rockview) on July 20, 1974. Petitioner collaterally attacked that conviction in a Post Conviction Hearing Act Petition*fn2 resulting in his release from custody on January 24, 1980.

Petitioner was arrested on May 12, 1981 and charged with burglary and receiving stolen property. Petitioner did not make bail on these charges. The Board lodged its detainer against him, and on August 24, 1981 recorded its order recommitting Petitioner as a technical parole violator to serve eight months of backtime for possession of marijuana. Petitioner was convicted in Warren County on the charges of burglary and receiving stolen property, and on January 29, 1982, was sentenced to a term of seven

[ 125 Pa. Commw. Page 589]

    to fourteen years. On February 16, 1982, the Board recorded an order recommitting Petitioner as a convicted parole violator to serve twenty-four months ...


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