85 Pa. Commw. 278 | Pa. Commw. Ct. | 1984
Opinion by
The petitioner, Leroy Davis, a/k/a Barry Harris, appeals here from an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from an order reconunitting him as a technical and convicted parole violator.
On November 16, 1982, the petitioner, while on parole, was arrested and charged with the crimes of theft by deception, theft by unlawful taking, conspiracy, and receiving stolen property. He was thereafter convicted in the Philadelphia Municipal Court on January 27, 1983 of theft by deception, conspiracy, and receiving stolen property, and in the common pleas court on April 4,1983, of theft by deception and theft by unlawful taking. Prior to the petitioner’s court convictions, the Board had lodged a detainer against the petitioner and had conducted a preliminary hearing on November 30, 1982. The Board subsequently held a violation and revocation hearing on June 9, 1983, and
Initially, the petitioner argues that the June 9, 1983, hearing was not timely with respect to his technical parole violations and his Municipal Court convictions. "While the petitioner concedes that the June 9th hearing was timely with respect to his April 4th convictions, he contends that the violation part of the June 9th hearing was not held within 120 days of the preliminary hearing as required by 37 Ba. Code §71.2 (11), and that the revocation part of this hearing wias not held within 120 days of the date the Board learned of his Municipal .Court convictions, as required by 37 Pa. .Code §71.4(2). In response to these arguments, the Board asserts that the petitioner, on November 30, 1982, .signed a waiver of the preliminary hearing and a request for a continuance until the new criminal charges against him were resolved. Although the petitioner concedes that the Board scheduled a preliminary hearing on November 30, 1982, he argues that he was not present at that hearing due to another court appearance, and that some other person answered to his name and signed the waiver and continuance request forms. Our review of the record in this case indicates that these arguments were raised at the June 9th hearing, but that the Board failed to make any findings or conclusions in this regard. Unfortunately, the absence of findings on this issue requires that we order a remand since we cannot resolve the petitioner’s timeliness arguments without a finding as to whether or not the petitioner was the person who in fact .signed the waiver and continuance request forms at the November 30, 1982 hearing. Blair v. Pennsylvania Board of Probation and Parole, 71 Pa. Common
We are not persuaded by the Board’s assertion that we should dismiss the petitioner’s timeliness arguments since the April 4, 1983 convictions constitute independent bases for recommiting the petitioner.
The petitioner also contends that the Board could not revoke his parole as a convicted violator since the Board’s decision in this regard was based solely upon photocopies of court records not certified in accordance with Section 6103 of the Judicial Code,
Lastly, the petitioner contends that the Board’s recommitment order .should be set aside since he alleges that it does not comply with the requirements of Section 507 of the Administrative Agency Law
Order
Now, September 21, 1984, the above-captioned matter is remanded to the Pennsylvania Board of Probation and Parole for proceedings consistent with the opinion above. Jurisdiction relinquished.
The Board also seems to argue that if the petitioner was not afforded a preliminary hearing then the time within which a violation hearing must be held never begins to run. Needless to say, absent a waiver by the petitioner of his right to a preliminary hearing, the Board cannot justify the untimeliness of a violation hearing by depriving a person of his right to the preliminary hearing.
42 Pa. C. S. §6108.
42 Pa. C. S. §6101.
2 Pa. C. S. §507.
2 Pa. C. S. §101..