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STEVEN A. JOHNSON v. COMMONWEALTH PENNSYLVANIA (11/28/89)

decided: November 28, 1989.

STEVEN A. JOHNSON, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



PETITION FOR REVIEW

COUNSEL

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

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

Doyle and McGinley, JJ., and Barbieri, Senior Judge.

Author: Mcginley

[ 129 Pa. Commw. Page 653]

Steven A. Johnson (Petitioner) appeals an order of the Pennsylvania Board of Probation and Parole (Board) which denied Petitioner's request for administrative relief from a

[ 129 Pa. Commw. Page 654]

Board revocation decision dated January 26, 1989, recommitting Petitioner as a convicted parole violator (CPV), when available, to serve his entire remaining unexpired term as a result of his June 8, 1988, conviction for first degree murder. We reverse.

Petitioner was originally paroled by the Board on July 1, 1979, from concurrent sentences of two and one-half to ten years and two and one-half to five years imposed by the Court of Common Pleas of Philadelphia County as a result of Petitioner's convictions for robbery, possession of an instrument of crime, possession of a weapon, burglary and criminal conspiracy. At the time of original release, the Petitioner's maximum term expiration date was January 1, 1987. Petitioner was recommitted by the Board as a technical parole violator (TPV) on August 9, 1984, and his maximum term expiration was extended to March 24, 1989. The Board granted him reparole on September 8, 1984, at which time he was released from the State Correctional Institution at Graterford (SCI-Graterford).

Petitioner was arrested by Philadelphia police on September 28, 1987, charged with murder and related offenses, and remained confined in the Philadelphia County Prison without bail. The Board lodged its warrant and detainer against him on September 30, 1987. On November 17, 1987, Petitioner was charged with the murder of James Clark and related offenses. Petitioner was convicted of the Clark murder in the Philadelphia County Common Pleas Court on June 8, 1988, following a jury trial, and sentenced to life imprisonment. Petitioner was transferred back to SCI-Graterford on June 13, 1988. On June 23, 1988, the Board received official verification of the June 8, 1988, first-degree murder conviction. On December 14, 1988, Petitioner received a preliminary parole hearing and signed a waiver of a full Board hearing, requesting that his parole revocation hearing be heard before a Board hearing examiner.

Petitioner was given a parole revocation hearing at SCI-Graterford on January 4, 1989, before a Board hearing examiner. At hearing, Petitioner's counsel objected to the

[ 129 Pa. Commw. Page 655]

    timeliness of the hearing as more than 120 days from the date of official verification and the hearing examiner noted this objection. (Notes of Testimony, January 4, 1989, (N.T.) at 6.) On January 26, 1989, the Board granted an order recommitting Petitioner as a CPV, when available, to serve the entire remaining balance of his unexpired term as a result of the first-degree murder conviction. Petitioner appealed to the Board, challenging the timeliness of his parole revocation hearing and the Board denied his appeal on March 8, 1989. Petitioner filed a timely appeal with this Court on the basis of the untimeliness of the parole revocation hearing.

Our scope of review of an adjudication by the Board is limited to a determination of whether or not it is supported by substantial evidence, is in accordance with the law, and is observant of the petitioner's constitutional rights. Abbruzzese v. Board of Probation and Parole, 105 Pa. Commonwealth Ct. 415, 524 A.2d 1049 (1987). Because the Petitioner alleged that the hearing was untimely, the burden was on the Board to prove by a preponderance of the evidence that it was, in fact, timely. Id. In its March 8, 1989, decision the Board conceded that the hearing was held beyond the 120 day period ...


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