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JAMES ALLEN v. COMMONWEALTH PENNSYLVANIA (12/11/89)

decided: December 11, 1989.

JAMES ALLEN, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



COUNSEL

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

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

Craig and Barry, JJ., and Blatt, Senior Judge.

Author: Craig

[ 130 Pa. Commw. Page 113]

James Allen appeals an order of the Pennsylvania Board of Probation and Parole recommitting Allen to a state correctional institution as a convicted parole violator to serve a total of sixty months on backtime. We affirm in part and remand in part.

Allen was paroled on September 13, 1985, to an approved plan in Philadelphia. On February 19, 1987, the Philadelphia police arrested Allen and charged him with multiple robberies at gunpoint and related offenses. The board lodged its warrant and detainer against Allen on February 24, 1987. The Philadelphia police filed additional charges against Allen while he was in custody.

On October 9, 1987, a Philadelphia County Common Pleas Court jury found Allen guilty of criminal conspiracy, for which he was sentenced to a term of five-to-ten years. On April 18, 1988, Allen pleaded guilty to a separate offense of criminal conspiracy, and received an additional sentence of two-and-one-half-to-five years to run consecutively to the previous sentence.

On August 23, 1988, the board conducted a parole revocation hearing, at which Allen challenged the second degree felony classification attached to both new convictions and the timeliness of the hearing. The board rejected both arguments and ordered that Allen be recommitted as a convicted parole violator to serve a total of sixty months on backtime for his two new convictions. On March 24, 1989, the board denied Allen's request for administrative relief.

Allen now contends that the board erroneously graded the two criminal conspiracy convictions as second degree felonies, and accordingly, committed an error of law by applying the presumptive range for second degree felonies

[ 130 Pa. Commw. Page 114]

    to compute the sixty months on backtime. Specifically, Allen asserts that both convictions should be graded as first degree misdemeanors rather than second degree felonies because (1) regarding the first conviction, the trial court repeatedly stated to the jury that the criminal object of the alleged conspiracy was "robbery or possessing an instrument of crime" -- thus referring, in the alternative, to a felony and a first degree misdemeanor, respectively -- and, (2) regarding the second conviction, because the trial court imposed a two-and-one-half-to-five-year sentence, which is the maximum sentence for a first degree misdemeanor. 18 Pa.C.S. § 1104(1).

When the board orders the recommitment of a parolee as a convicted parole violator, the parolee shall be recommitted to serve an additional part of the term which the parolee would have been compelled to serve had he not been paroled, in accordance with the presumptive range. 37 Pa. Code § 75.2. Although the presumptive range for a convicted parole violator committing a robbery graded as a second degree felony is twenty-four months to forty months, the presumptive range for a first degree misdemeanor is six months to twelve months.

In the first case, although the jury did not specify which of the two offenses it found Allen guilty of conspiring to commit, the board's "convicted violator report" set Allen's "level of guilt" for the charges of "robberies point of gun" to be "F-2," second degree felony. A criminal conspiracy is graded as the most serious offense which is an object of the conspiracy. 18 Pa.C.S. § ...


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