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DONALD WILLIAMS v. COMMONWEALTH PENNSYLVANIA (07/26/89)

decided: July 26, 1989.

DONALD WILLIAMS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



PETITION FOR REVIEW

COUNSEL

John C. Armstrong, Chief, Parole Division, Norristown, for petitioner.

Robert Greevy, Chief Counsel, Arthur R. Thomas, Asst. Chief Counsel, Harrisburg, for respondent.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Colins

[ 127 Pa. Commw. Page 346]

Donald Williams (petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which ordered petitioner recommitted for six (6) years as a convicted parole violator. Having been denied his request for administrative relief, petitioner filed this appeal. We affirm.

While on parole for a robbery conviction, petitioner was arrested on January 30, 1984, and November 6, 1984, and was charged with, inter alia, robbery. On November 20, 1984, petitioner signed a request for a continuation of his parole revocation hearing. On May 6, 1986, petitioner was convicted of robbery and possession of an instrument of crime as a result of his January 30, 1984, arrest. On January 29, 1986, petitioner was convicted of robbery, unauthorized use of an automobile, and conspiracy as a result of his November 6, 1984, arrest.

On January 13, 1987, the Board, on its own initiative, scheduled a violation and revocation hearing for the petitioner to be held on February 5, 1987. At this hearing, counsel for petitioner argued that the hearing was untimely because it was not held within one hundred twenty (120) days from May 29, 1986, the date on which the Board was notified of petitioner's last conviction. The Board's decision, which was mailed on April 1, 1987, ordered the petitioner recommitted as of March 4, 1987, for a period of six (6) years as a convicted parole violator.

Petitioner's request for administrative relief was denied by the Board on April 29, 1987. On December 7, 1988, petitioner filed a petition for review nunc pro tunc with this Court which was accepted on December 15, 1988.

Petitioner argues that pursuant to 37 Pa.Code ยง 71.4(2),*fn1 the Board is required to convene a revocation hearing within one hundred twenty (120) days from the date of the official verification of his conviction. Petitioner argues that

[ 127 Pa. Commw. Page 347]

    the Board was notified on May 29, 1986, of his return to state custody, yet his hearing was not held until February 5, 1987, almost nine (9) months after the Board had learned that he was available for a parole revocation hearing. Thus, the petitioner cites Abbruzzese v. Pennsylvania Board of Probation and Parole, 105 Pa. Commonwealth Ct. 415, 524 A.2d 1049 (1987) and Capers v. Pennsylvania Board of Probation and Parole, 42 Pa. Commonwealth Ct. 356, 400 A.2d 922 (1979), for the proposition that he is entitled to have his parole violation charges dismissed because his hearing was not held within this 120-day period.

Petitioner concedes that any delay in the proceedings caused by a parolee are excluded from this 120-day period and so cites the case of Jones v. Pennsylvania Board of Probation and Parole, 44 Pa. Commonwealth Ct. 610, 404 A.2d 755 (1979). In denying the petitioner's request for administrative relief, the Board based its decision on the fact that the petitioner had requested a continuation of his hearing until further notice. Thus, the Board did not schedule a hearing within one hundred ...


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