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Deleaver v. PA. Board of Probation and Parole

March 28, 2006

MICHAEL ANTHONY DELEAVER, PETITIONER
v.
PA. BOARD OF PROBATION AND PAROLE, RESPONDENT



The opinion of the court was delivered by: Judge Kosik

MEMORANDUM

Michael Anthony Deleaver is an inmate currently confined at the State Correctional Institution at Dallas, Pennsylvania. He files this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging actions by the Pennsylvania Board of Probation and Parole ("Board") with respect to the revocation of his parole and the recalculation of his new maximum expiration date. Specifically, he contends that the Board violated the Double Jeopardy Clause when they recommitted him several times based on parole violations and recalculated his sentence as a result of those violations. He also claims that the Board erred when it recomputed his new maximum expiration date and failed to provide him with an adequate explanation. The filing fee has been paid and the petition is ripe for consideration. For the reasons that follow, the petition will be denied.

I. Background

On May 19, 1978, Deleaver was sentenced to a term of 11/2 to 10 years for Burglary in Montgomery County, Pennsylvania (Case 4674). He was paroled from this sentence on October 26, 1979. On January 24, 1980, Deleaver was sentenced to a concurrent term of 21/2 to 20 years for a second Burglary conviction in Montgomery County (Case 2348). Both burglary convictions were run concurrently with a maximum date of October 30, 1999.

On May 20, 1980, the Board recommitted Deleaver as a convicted parole violator ("CPV") based on the second burglary conviction (Case 2348). This is so as he was on parole from the first Burglary conviction (Case 4674) when he was sentenced on the second Burglary. He was reparoled from the concurrent sentence on April 30, 1982.

On February 8, 1985, Deleaver was convicted of Theft by Receiving Stolen Property in Philadelphia County, Pennsylvania, and sentenced to a term of 14 months to 3 years. The maximum date on this sentence was February 8, 1988. The Board did not recommit Deleaver as a parole violator based upon the Theft conviction, and, as such, he remained on parole from his Burglary sentence*fn1 with a parole violation maximum date of October 30, 1999, despite his incarceration on the Theft sentence.

On August 12, 1986, Deleaver was paroled from the Theft sentence, and completed the Theft sentence on February 8, 1988. He was subsequently declared delinquent from his Burglary sentence effective February 14, 1988.

In a December 13, 1988 decision, the Board recommitted Deleaver as a technical parole violator ("TPV") on his Burglary sentence for violating Condition #6 of his parole - - the failure to successfully complete out-patient therapy, and recalculated his parole maximum date to June 15, 2000. On December 29, 1989, he was again reparoled by the Board from his Burglary sentence, again with a June 15, 2000 parole violation maximum date.

On February 1, 1991, while on parole from the Burglary sentence, Deleaver was convicted of Delivering Cocaine in Montgomery County, Pennsylvania. He received a sentence of 4 to 8 years. In a decision of April 21, 1991, the Board recommitted Deleaver as a TPV on his Burglary sentence for violating Condition #7 of his parole (failure to attend out-patient therapy) and as a CPV based on the new drug conviction. In the April 21, 1991 decision, the Board also set forth a recalculated parole violation maximum date on the Burglary sentence of July 21, 2007.

On May 21, 1992, Deleaver was reparoled on the Burglary sentence to his detainer sentence (2/1/99 Drug conviction). On September 26, 1995, he was paroled from the Drug sentence. Thereafter, on December 3, 2000, Deleaver was cited by the Pottstown Borough Police Department for Driving Under the Influence ("DUI"/Driving Offense #1), and several other vehicle offenses. The Board, however, was not immediately aware of this citation. The Board subsequently declared Deleaver delinquent effective November 25, 2002.

On December 1, 2002, Deleaver was cited for Driving while Operating Privilege is Suspended or Revoked/DUI related (Driving Offense #2). On January 20, 2003, he pled guilty to Driving Offense #2 and received a sentence of 27 days time served.

In a Board decision recorded March 14, 2003, Deleaver was recommitted as a TPV on his Burglary sentence for violating several conditions of his parole: leaving the district without permission, changing address without permission, failing to report as instructed and failing to report an arrest within 72 hours. The Board recalculated a parole violation maximum date of September 17, 2007, for the Burglary sentence but indicated that the maximum date could change if Deleaver was convicted of the open charges. This new maximum date was based exclusively on Deleaver's recommitment as a TPV and the loss of credit for the period he was delinquent.

The Board thereafter learned of Deleaver's guilty plea with regard to Driving Offense #2. On May 12, 2003, Deleaver pled guilty to Driving Offense #1 and received a sentence of 30 days to 23 months to be served primarily in the Montgomery County Prison. However, the Board was not immediately made aware of the guilty plea on Driving Offense #1.

In a decision recorded on July 3, 2003, the Board again recommitted Deleaver as a TPV on his Burglary sentence for violating Condition #4 of his parole (failure to comply with all laws) based upon his plea of guilt on Driving Offense #2. His maximum parole violation date remained at September 17, 2007, despite the recommitment for violating Condition #4 of his parole, but indicated that the decision was subject to change if convicted of open ...


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