45 Pa. Commw. 41 | Pa. Commw. Ct. | 1979
Opinion by
By an Order of January 17, 1979, the petition for review of Stanope Tyrone Pugh, a/k/a Tyrone Pugh Johnson, petitioner, was treated as one addressed to our original jurisdiction. Pennsylvania Rules of Appellate Procedure and Section 761 of the Judicial Code, 42 Pa. C.S. §761.
For our consideration is the petition for review, preliminary objections in the nature of a demurrer filed by the Pennsylvania Board of Probation and Parole (Board). The certificate of the Chairman of the Board, submitted pursuant to Section 8 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §331.8, and petitioner’s traverse response to the certificate, as well as briefs in support of the issues, are a part of the record.
Petitioner again went afoul of the Philadelphia authorities on June 1, 1977, when he was arrested and charged with bank robbery and "Conspiracy. He was found guilty of conspiracy and sentenced in Federal District Court to five years in a federal institution where he is presently in residence.
Petitioner initially contends that the time spent in custody pursuant to the Board’s detainer order prior to sentencing on new charges should credit against the
Petitioner raises a related issue alleging that the maximum term of his original sentence was improperly extended for a longer period of time than he was on parole. The Chairman’s certificate indicates that credit for petitioner’s jail detention time prior to sentence is applied to the new sentence. The Board did not err in its determination of seven years back time applied to the original sentence, which was the period between petitioner’s initial parole on May 3, 1971 and his original expiration date of May 3, 1978.
Next, petitioner argues that the Board has lost jurisdiction because it failed to provide him with a revocation hearing following the federal conviction. That he is in federal custody, he says, does not relieve the Board of its duty to give him a parole revocation hearing within a “reasonable time” after he was taken into custody. We need only cite the Board regulations found at 37 Pa. Code §71.4:
(2) The [revocation] hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty . . . except as follows:
*45 (i) If the parolee is confined outside the jurisdiction of the Pennsylvania Bureau of Correction, such as confinement out-of-State, confinement in a Federal Correctional Institution . . . the final Revocation Hearing shall be held within 120 days of the official verification of the Board of the return of the parolee to a State correctional facility. (Emphasis added.)
Easily seen, the 120-day limitation has not been violated and will not begin to run until the Board receives official verification of petitioner’s return to a State correctional facility.
Petitioner’s final challenge alleges the Board has incorrectly ordered him to serve his new sentence before he completed his original sentence. We are cognizant of the rule that applies to a parolee from a state penal institution when a new sentence is imposed to be served in a state penal institution — the service of the balance of the original term precedes the start of the new term. However, where the new sentence is in a federal penal institution, the latter must be served first. Section 21.1(a) of the Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. §331.21a.
The Board has filed preliminary objections in the nature of a demurrer alleging that the waiting period before trial must be credited to the new sentence and that petitioner has no right to a revocation hearing until he returns to the Board’s jurisdiction. The applicable statutory and case law convinces us that the Board has, without impropriety, complied with its regulations.
Accordingly, we
Order
And Now, this 10th day of August, 1979, upon consideration of the preliminary objections of the Penn
Board records indicate petitioner was sentenced on January 3, 1969, to three identical concurrent 3-10 year terms effective May 3, 1968, with a minimum of May 3, 1971, and a maximum of May 3, 1978.