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JOSEPH GAITO v. COMMONWEALTH PENNSYLVANIA (06/20/89)

decided: June 20, 1989.

JOSEPH GAITO, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



PETITION FOR REVIEW.

COUNSEL

Lester G. Nauhaus, Public Defender, John H. Corbett, Jr., Chief-Appellate Division, Pittsburgh, for petitioner.

Robert Greevy, Chief Counsel, Timothy P. Wile, Asst. Chief Counsel, Harrisburg, for respondent.

Palladino and Smith, JJ., and Kalish, Senior Judge.

Author: Kalish

[ 128 Pa. Commw. Page 255]

This is a petition to review an order of the Pennsylvania Board of Probation and Parole (Board) denying a petition to reconsider the imposition of backtime as a convicted parole violator. We affirm.

While on parole Joseph Gaito (petitioner) was arrested on April 23, 1986, and charged with burglary. He was confined to the State Correctional Institute of Pittsburgh. Petitioner failed to raise the $25,000 bail. The Board lodged its warrant and detainer against petitioner on April 24, 1986. At a preliminary hearing on May 9, 1986, a prima-facie case was established. In October, 1986, the Board ordered petitioner detained pending disposition of the new criminal charges. He was convicted on April 23, 1987, and given a revocation hearing on June 12, 1987. On August 7, 1987, the Board ordered the petitioner recommitted as a convicted parole violator and ordered him to serve twenty-four months backtime, when available, for his conviction on the burglary charge. On the burglary conviction he had been sentenced to a term of one-and-a-half to three years. On August 18, 1988, the Board fixed prospective reparole as of July 8, 1990. The Board allocated all of petitioner's pre-sentence commitment time to his burglary sentence since he failed to post the $25,000 bail.

The petitioner contends that the Board's detainer made it a useless gesture to attempt to secure any bail in view of his financial condition while incarcerated. Petitioner contends that the bail credit rule violates the equal protection clause of the Fourteenth Amendment to the United States

[ 128 Pa. Commw. Page 256]

Constitution, and that the time spent in jail pendente lite should be credited to the twenty-four months backtime. This would, in effect, make the petitioner eligible to apply for parole at an earlier date.

Our scope of review is limited to a determination of whether necessary findings are supported by substantial evidence, an error of law was committed, or whether constitutional rights of the parolee were violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; O'Hara v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 356, 487 A.2d 90 (1985).

When a parolee is convicted of a new offense that was committed while on a parole term and the Board decides to recommit the parolee to prison, sections 331.21 and 331.21a of the Pennsylvania Probation and Parole Act, Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §§ 331.21 and 33.21a, require in clear and unmistakable terms that the parolee serve the entire remaining balance of the original term, with no credit against the parolee's original sentence for the time served on parole. The reason is that the Board does not have the power to alter the parolee's judicially-imposed sentence and can only mandate that the parolee upon recommitment as a convicted violator serve the remaining balance of the unexpired term of the original sentence. Gaito v. Pennsylvania Board of Probation ...


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