71 Pa. Commw. 523 | Pa. Commw. Ct. | 1983
Opinion by
In this appeal from a decision of the Board of Probation and Parole (Board) the question to be resolved as set forth in Petitioner’s brief is
May the Board recommit and recompute the sentence of a convicted parole violator where, although the subsequent crime was committed during parole, the conviction did not take place until the expiration of the maximum sentence on the prior conviction 1
Factually, it appears that Petitioner was paroled as of July 28,1978 from his original sentence. He was arrested on November 20, 1980 for a new offense. On
Petitioner argues that since he was not convicted for his new offense until after his original sentence had expired, the Board had no authority to recommit him as a parole violator and recompute his sentence. Petitioner admits, as he must, that this Court in Kuykendall v. Pennsylvania Board of Probation and Parole, 26 Pa. Commonwealth Ct. 234, 363 A.2d 866 (1976) held that the Board can recommit and recompute the sentence of a parolee who commits a crime while on parole but who is not convicted until after his original sentence would have expired. Petitioner, however, contends that the instant case is factually distinguishable from Kuykendall because in Kuykendall the parolee had absconded and we held that he could not profit from his wrongdoing. In the instant case, it appears that six days after he was arrested for the new offense, a parole violation warrant was filed against Petitioner. A preliminary and detention hearing was held twenty-one days later and as we have noted, on January 19, 1981, nine days before his maximum sentence expired, the Board took action to detain Petitioner pending disposition of the criminal charges, to return him as a technical parole violator and to schedule an immediate violation hearing. For some reason, not explained in the record or in the
While we must agree with Petitioner that the factual situation here is markedly different from that in Kuykendall and that the Board’s attempt to declare Petitioner delinquent retroactively seems to be without statutory or precedential case law authority, we must, nevertheless, give full force and effect to the pertinent language in Section 21.1(a) of the Act of August 6,1941, P.L. 861, as amended, 61 P.S. §331.21a-(a) which reads as follows:
(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 parole . . . commits any crime punishable by imprisonment ... to which he pleads guilty . . . at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. (Emphasis added.)
Here, Petitioner admits that he committed the crime while on parole and that he pled guilty thereto. The Board, therefore, had the discretion to recommit him as a parole violator, notwithstanding the expiration of his maximum sentence in the interim.
Finding that the Board acted within its authority in the instant case and that there has been no abuse of discretion, we must affirm the Board’s action.
Order
The action of the Board of Probation and Parole in recommitting Riskie Trenge as a parole violator and recomputing his maximum sentence, is affirmed.
The Petitioner has filed an “Amended Petition for Review and/ or Writ of Habeas Corpus”. No answer has been filed by the Board to the Petition. It is apparent that the Petitioner and the Board have treated the Petition as an appeal from Board action. On that assumption, we have disregarded the request for a writ of habeas corpus.
We are of the opinion that the reference in Section 21.1(a) to a parolee “under the jurisdiction of the Board” is merely to distinguish such persons from those parolees who are on probation or parole from county institutions and, therefore, not under the jurisdiction of the Board.