501 A.2d 1114 | Pa. | 1985
OPINION
We granted allocatur in this case in conjunction with Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), since the instant case involves the same issue as was presented in Riven-bark. That issue is whether the Pennsylvania Board of Probation and Parole (Board) may order a parolee to serve a period of recommitment as a technical parole violator for an act violative of the technical terms and conditions of his parole, which also constitutes a new crime of which he has been convicted.
In Rivenbark, we held that although double jeopardy protections do not preclude separate periods of recommitment as both a technical parole violator and a convicted parole violator based upon the same conduct, the statutory section authorizing recommitment of technical violators, 61 P.S. § SSl^laib),
Appellant was sentenced to a term of imprisonment of one to seven and one-half years on June 3, 1976, for the crime of rape. He was paroled on May 8, 1977, at the expiration of his minimum sentence. On May 26, 1982, appellant was convicted in the Court of Common Pleas of Philadelphia of rape
Following a parole revocation hearing held on March 19, 1984, the Board recommitted appellant as a convicted parole violator for the entire unexpired six and one-half year term of his 1976 rape conviction. Simultaneously, the Board recommitted appellant as a technical parole violator for a term of eighteen months for violation of term and condition 5(c) of his parole
Thus, the record clearly indicates that appellant was recommitted as a technical violator for acts constituting new crimes for which he was convicted. As we held in Rivenbark, such recommitment is beyond the authority which the General Assembly has granted the Board. Id., 509 Pa. at 255, 501 A.2d at 1114.
We reverse that part of the order of the Commonwealth Court affirming the Board’s recommitment of appellant as a technical violator,
. Subsection (b) of Section 21.1 of the Act of August 6, 1941, P.L. 861, § 21.1, added August 24, 1951, P.L. 1401, § 5, us amended, June 28, 1957, P.L. 429, § 1, states in pertinent part:
(b) Technical Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution in the Commonwealth who, during the period of parole, violates the terms and conditions of his parole, other than by the commission of a new crime of which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere in a court of record, may be recommitted after a hearing before the board.
61 P.S. § 331.21a(b) (emphasis added).
. 18 Pa.C.S. § 3121.
. 18 Pa.C.S. § 3123.
. 18 Pa.C.S. § 2701.
. 18 Pa.C.S. § 3921.
. 18 Pa.C.S. § 3701.
. Although not explicitly stated, we assume the period of recommitment as a technical violator was to run concurrent with the period of recommitment for the conviction violation since any other interpretation would lead to the impermissible result of the appellant remaining incarcerated for a period of time in excess of the sentence originally imposed by the trial judge.
. We affirm the Commonwealth Court’s resolution of appellant’s challenge to the length of his period of recommitment as a convicted violator. Appellant asserts that the Board violated its own regulations by recommitting him as a convicted parole violator for a period allegedly thirty-eight months in excess of the maximum of the presumptive range for his violation, despite the presence of mitigating factors and without sufficient written justification for going beyond the guidelines. See 37 Pa.Code 75.1. Appellant was recommitted as a convicted violator for a period of seventy-eight months. He contends that the maximum period of recommitment within the presumptive range is forty months. This contention is incorrect. Convictions for rape, attempted involuntary deviate sexual intercourse and robbery each have a maximum presumptive range of at least forth months. See 37 Pa.Code § 75.2. Each one of these convictions may be considered as a separate parole violation by the Board and the presumptive ranges of each may be aggregated. Corley v. Pennsylvania Board of Probation and Parole, 83 Pa.Cmwlth. 529, 478 A.2d 146 (1984). Thus, the seventh-eight month period of recommitment was within the presumptive range.