94 Pa. Commw. 32 | Pa. Commw. Ct. | 1986
Opinion by
James Weyand petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied him administrative relief from a Board revocation order. That order reaffirmed a prior revocation order and set a new maximum term expiration date and tentative reparóle date on his two to four year Somerset County sentence.
The following facts are pertinent. Weyand was originally sentenced in Somerset County Common Pleas Court on September 11, 1981 by Judge Norman A. Shaulis to concurrent terms totaling two to four years in the Somerset County Jail following his convictions for Theft
The Board granted Weyand parole on the two to four year sentence effective August 8, 1983. He was not released from confinement at that time but commenced serving the minimum term of his one to two year detainer sentence
Weyand became eligible to apply for parole on the one to two year sentence when he completed the minimum term of that sentence on June 28, 1984.
In this appeal, Weyand contends that (1) the Board had a duty to interview him sua sponte for parole when he completed the minimum term of his one to two year sentence; (2) that the Board erred as a matter of law when it declared him delinquent on his two to four year sentence after it revoked his parole on that sentence on January 30, 1984; and (3) that his parole Violation Hearing was untimely. We shall address those issues in the order presented, mindful, of course, that our scope of review of a Board parole revocation order is limited to determining whether necessary findings are supported by substantial evidence, whether the Board committed an error of law, or whether any of the parolee’s constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Cox v. Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985).
Weyand bases his contention that the Board had the duty to consider him for parole automatically upon the expiration of his minimum term upon language contained in Section 22 of the Act of August 6, 1941
Section 22 of the Parole Act reads, in pertinent part, as follows:
%331.22. Paroles on board’s own motion; applications and hearings; notice to district attorney and court
The board shall have the power, subject to the provisions and limitations set forth in section twenty-one [61 P.S. §331.21], to grant paroles of its own motion whenever in its judgment the interests of justice require the granting of the same. In addition thereto, the board shall have the power, and it shall be its duty, to consider applications for parole by a prisoner or by his attorney, relatives or friends or by any person properly interested in the matter. Hearings on applications shall be held by the board whenever in its judgment hearings are necessary. Reasonable rules and regulations shall be adopted by the board for the presentation of applications for parole. . . . Applications shall be disposed of by the board within six months of the filing thereof. Except in eases where the Pardon Board has reduced a minimum term by commutation, the board shall initially act on the application, if possible, before the expiration*38 ' of the minimum term so fixed, and in no case more than thirty days thereafter.
In granting and revoking paroles, and in-discharging from parole, the members of the bohrd acting thereon shall not be reqiiired- to personally hear or see all the witnesses or evi-' dence submitted to them for their action, but they may act on report submitted to'them by' their agents and employes, together with any pertinent and adequate information furnished' to them by fellow members of the board or by others. (Emphasis added.) ■
The Board has also promulgated regulations dealing with the granting of paroles, both upon' its own motion and upon application. The specific regulatory provision' dealing with the granting of paroles upon the Board’s own motion is found at 37 Pa. Code §63.1 (a) and reads as follows:
§63.1. Granting of parole.
(a) The Board’ may grant paroles of its own motion pursuant to Section 22 of the Pennsylvania Board of Probation and Parole Law (61 P.S. §331.22). (Emphasis added.)
Both the statutory’language contained in Section 22 of the Parole Act and the language contained in the Board’s regulation at 37 Pa. Code §63.1 (a) clearly indicate that the Board is under no duty to grant paroles of its own motion nor to consider prisoners for possible parole in the absence of an application for parole. Section 22 clearly states that while the Board has the power to grant paroles upon Its own motion, the Board has the duty to consider applications filed by prisoners nr on their behalf.' See Banks v. Pennsylvania Board of Probation and Parole, 4 Pa. Commonwealth Ct. 198, 200 (1971) (prisoners have a right to apply to the Board for parole and are entitled under the Parole Act to have that application fairly and
We are also cognizant that the General Assembly of this Commonwealth has vested broad discretion in the Board in matters of granting and revoking of paroles pertaining to prisoners falling under its jurisdiction. Cox, 507 Pa. at 619, 493 A.2d at 683; Bradshaw v. Pennsylvania Board of Probation and Parole, 75 Pa. Commonwealth Ct. 90, 461 A.2d 342 (1983). There is no question that a prisoner has no right under the Parole Act to be granted parole upon the expiration of his or her minimum term. Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83 (1971). The significance of the minimum term, then, is to set a parole eligibility date for the prisoner at which time
We shall now consider Weyand’s contention that the Board erred when it declared him delinquent insofar as his initial two to four year sentence is concerned when it revoked his parole on that sentence •on January 30, 1984. The gravamen of this contention is his assertion that he was “available” to the Board to serve the nine months backtime imposed for the parole violations when the revocation order was issued. We disagree. The parole revoked by the Board’s revocation order of January 30, 1984 was Weyand’s constructive parole regarding the two to four year sentence, “Constructive parole” occurs
We now consider Weyand’s final contention which is that the Board failed to provide him with a timely parole Violation Hearing.
Having found that the Board was under no statutory duty to consider him for parole on its own motion absent an application at the expiration of his minimum term, that the Board properly declared him delinquent for control purposes on the two to four year sentence effective on the date of its January 30, 1984 parole revocation order pertaining to that sentence, and that his parole hearings were timely under 37 Pa. Code §71.2, we shall affirm the Board’s denial of administrative relief.
Order
Now, January 3, 1986, the Order of the Pennsylvania Board of Probation and Parole at Parole No. 9136-P, which denied administrative relief to James Weyand, is hereby affirmed.
18 Pa. C. S. §3901.
18 Pa. C. S. §3503.
While Weyand was sentenced on September 11, 1981, Somerset County court records show that he was entitled to forty-six days confinement credit on that sentence.
18 Pa. C. S. §3502.
We have previously defined a “detainer sentence” to be a sentence, .separate, and distinct from that sentence the parolee is presently serving, which is noted on the parolee’s institutional records to ensure that, after the parolee has completed his present term, he will be available to the authority which imposed the separate sentence for servicé of that separate sentence rather than being released from confinement. Counts v. Pennsylvania Board of Probation and Parole, 87 Pa. Commonwealth Ct. 277, 279 n.3, 487 A.2d 450, 452 n.3 (1985). Here, Weyand’s “detainer sentence” was the consecutive one to two year sentence imposed on December 4, 1981 -in Somerset County Common Pleas Court for his Burglary and Criminal Trespass convictions.
General Parole Condition 5A mandates that parolees “abstain from the unlawful possession or sale of narcotics and dangerous drugs, and abstain from the use of controlled substances within ■the meaning of The Controlled Substance, Drug, Device, and Cosmetic Act (35 P.S. §§780-101-780-144) without - a valid prescription.”-37 Pa. Code §63.4(5) (i).
In addition to the general condition of parole found at 37 Pa. Code §63.4, the Board imposed a special condition, of parole upon Weyand as authorized -by Section 23 of the Parole' Act, 61 P.S. §331.23. The special condition of parole imposed upon Weyand required him to “abide by the rules and regulations of the institution [Somerset County Jail].”
While Weyand was constructively paroled on August 8, 1983 to commence serving the minimum term of his one to two year detainer sentence, Somerset County Common Pleas Court records show that he was entitled to forty days confinement credit on that sentence which resulted in the minimum term of that sentence expiring on June 28, 1984 rather than August 8, 1984.
In his brief, Weyand also complains that his parole interview, to which he incorrectly refers as a “hearing,” was also untimely as