Rivenbark v. COM. PA. BD. OF PROB. & P.Rivenbark v. COM. PA. BD. OF PROB. & P.
McDERMOTT, Justice.
The issue in this case is whether, under the terms of the Pennsylvania Board of Parole Act,1 a parolee may be recommitted
Appellаnt, Harry Rivenbark, was sentenced in 1976 to serve concurrent terms of two to ten years on a forgery conviction and three to ten years on convictions for burglary, theft and criminal conspiracy. On August 22, 1979, he was placed on parole by the Pennsylvania Board of Probation and Parole (Board). On August 4, 1981, appellant was arrested on federal charges for the possession of a firearm and was placed in the Philadelрhia Detention Center. A federal grand jury indicted appellant on the federal charge on August 12, 1981.
Thereafter, the Board lodged a detainer warrant against appellant for violating conditions of his parоle by possessing a firearm and because of the new criminal charges. A preliminary/detention hearing was held on October 2, 1981, and the Board ordered appellant detained pending disposition of the criminаl charges, with the return of appellant as a technical parole violator when available, and a violation hearing to be scheduled when appropriate.
Appellant was subsequently sentenced to a federal term of two years on the firearms conviction. The Board‘s warrant remained lodged during his term of federal custody. Upon his release from federal custody in 1983, appellant was returned tо the custody of Board agents.2 On May
Appellant contends that the imposition of separate periods of recommitment based upon the same act violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.3 The prohibition of double jeopardy cоnsists “of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second proseсution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969) (footnotes omitted).
The first two enumerated protections are inapplicable since a parole revocation hearing is not a criminal prosecution. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The granting and rescinding of parole are purely administrative functions. Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942). Parole is a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation
Nor were the two periods of recommitment multiple punishments for the same offense. A recommitment is not a second punishment for the original offense; it has no effect on the original judicially-imposed sentence. Recommitment is an administrative determination that the paroleе should be reentered to serve all or part of the unexpired term of his original sentence.4
Unlike those lower courts which have considered the issue of whether a parolee may be recommitted as both a technical and convicted parole violator based upon the same act,5 we do not end our analysis of the issue upon the determination that such recommitments are not violative of dоuble jeopardy. The availability of parole is not a constitutional guarantee. Parole is a method of rehabilitation enacted as the public policy of the Commonwealth pursuant to
Section 21.1 of the Pennsylvania Board of Parole Act6 distinguishes convicted violators from technical violators. Subsection (a) of Section 21.1 which describes conviction violators, and subsection (b), which describes technical violators, prоvide in pertinent part:
(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parоle or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole.
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(b) Technical Violators. Any parolee under the jurisdictiоn 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 hearing before the board. If he is so reсommitted, he shall be given credit for the time served or parole in good standing
but with no credit for delinquent time, and may be reentered to serve the remainder of his original sentence or sentences.
The Statutory Construction Act of 19727 instructs, “[W]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
Appellant‘s recommitment as a technical viоlator was based upon an act, possessing a firearm, which constituted a new crime of which he was convicted. Consequently, the Board‘s action in recommitting appellant as a technical violator was beyond the authority the General Assembly has granted the Board to recommit parolees, and for that reason appellant‘s recommitment order must be vacated, and this case remanded to the Bоard for a reconsideration of appellant‘s period of recommitment.
The order of the Commonwealth Court is reversed and this case is remanded to the Board of Probation and Parole for prоceedings consistent with this opinion.