40 Pa. Commw. 454 | Pa. Commw. Ct. | 1979
Opinion by
Wesley Lamont Taylor (Petitioner) has filed a Complaint in Mandamus, which the Court will treat as a petition for review, alleging that the Pennsylvania Board of Probation and Parole (Board) failed to hold a final revocation hearing within a reasonable time. An answer was filed by Board with New Matter and a Certificate of the Chairman of the Pennsylvania Board of Probation and Parole included. Petitioner filed a reply to Board’s New Matter.
Subsequently, Petitioner filed a motion for summary judgment and Board filed a cross motion for summary judgment. The case is presently before us for disposal pursuant to Pa. R.C.P. No. 1035.
Petitioner’s basic contention is that the commencement date for the 120-day period in which a final revocation hearing must be held is November 15, 1977, the date on which he was convicted and sentenced to one year probation for the theft offense.
The regulation cited by the Board is not applicable where, as here, the parolee, having been given a sentence of one year probation, is being held at the county institution, not at the request of the county authorities nor as a result of the sentence imposed for the new conviction on the parolee, but rather solely as a result of Board action. Hammond v. Pennsylvania Board of Probation and Parole, 40 Pa. Commonwealth Ct. 14, 396 A.2d 485 (1979).
Where a parolee is convicted of a new criminal offense a “hearing shall be held within 120 days from
Accordingly, we
Order
And Now, this 14th day of February, 1979, the motions of the Pennsylvania Board of Probation and Parole and Wesley Lamont Taylor for summary judgment are hereby denied, without prejudice, and the Pennsylvania Board of Probation and Parole is directed to supply a supplemental affidavit evidencing the date on which the Board received official verification of the guilty verdict within twenty (20) days of the date of this Order.
This contention is pursuant to 37 Pa. Code §71.4 (currently found at 7 Pa. B. 490), which reads in pertinent part:
The following procedures shall apply in those cases in which the only violation charged is the conviction for a new criminal offense:
*457 (2) The hearing shall he held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or the guilty verdict at the highest trial court level. . . .
The text of the regulation, adopting verbatim the language of Judge Higginbotham in United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404 (E.D. Pa. 1975), is as follows:
§71.4(2) (i) Where 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 or confinement in a county correctional institution where the parolee has not waived the full Board Revocation Hearing required by Commonwealth of Pennsylvania ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), in which case 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. The parolee, who is confined in a county correctional institution and who waived the final Revocation Hearing by a quorum of the Board as required in the Rambeau decision shall be deemed to be within the jurisdiction of the Pennsylvania Bureau of Correction beginning with the date of his waiver of such Board hearing.