78 Pa. Commw. 197 | Pa. Commw. Ct. | 1983
Opinion by
Before this Court is an appeal by Willie Wiley (Petitioner) from a denial by the Pennsylvania Board of Probation and Parole (Board) of his request for administrative relief. We affirm in part and reverse in part.
Petitioner, while on parole, was arrested by the Philadelphia Police Department and charged with, among other things, robbery and aggravated assault. He was afforded a preliminary and detention hearing by the Board on September 19, 1978, relative to technical violations of his parole, and probable cause was found to detain him pending the appropriate hearing. The Board subsequently .scheduled a hearing on Petitioner’s technical parole violations for December 19, 1978. That hearing was continued until February, 1979, however, at the request of Petitioner. In the interim period, specifically January 31, 1979, Petitioner was convicted of the robbery and aggravated assault charges. The Board thus scheduled Petitioner, who had waived a full Board hearing, for hearings on February 9,1979 on both his alleged technical violations of parole and whether he should have his parole revoked as a convicted parole violator. Again Petitioner requested a continuance, this time until March 27, 1979 pending sentencing on his January 31, 1979 convic
With respect to the revocation hearing which led to Petitioner’s recommitment as a convicted parole violator, its August 30, 1978 date was clearly timely. Where, as here, the parolee has waived a full Board hearing, the revocation hearing must be held within 120 days of the Board’s receipt of official verification
As for Petitioner’s recommitment on technical violations of his parole, we are constrained to agree with Petitioner that the Board’s hearing thereon was untimely. A technical parole violation hearing must be conducted within 120 days of the preliminary hearing pertaining to the violation charges. 37 Pa. Code §71.2 (11). In the case at bar the preliminary hearing was held for Petitioner on September 19, 1978 and his actual hearing, which was ultimately continued, was scheduled for December 19, 1978. This is a period of ninety-one days. The delays from December 19, 1978 until at least May 23, 1979, because of Petitioner’s
Order
Now, November 3, 1983, the September 17, 1980 decision of the Pennsylvania Board of Probation and Parole in the above captioned matter denying administrative relief to Willie Wiley is affirmed in part and reversed in part consistent with the above opinion. The matter is remanded to the Board for the appropriate recalculation of sentence and jurisdiction is relinquished.
The time frames chargeable to the Board are those from January 31, 1979 until February 9, 1979 and from May 23, 1979 until August 16, 1979. May 23, 1979, the date of Petitioner’s sentencing, we construe as terminating his continuance request of March 27, 1979, which was until further notice pending post trial motions. It therefore also terminates the tolling of the 120 day time limit for the hearing which resulted from that request. In actuality the total time frame with which we are dealing is probably shorter since it is the date the parolee’s conviction is officially verified to the Board which starts the clock running in these matters. We similarly would not charge the Board with knowledge of Petitioner’s sentencing until actually received. Unfortunately neither of these dates is of record but, as the outer parameters of the time frame chargeable to the Board are known, we nonetheless are able to render our decision.
This Court regrets not being able to state its decision utilizing specific numbers of days. The record submitted by the Board in this matter is sparse, however, as' to a number of pertinent facts, despite the Board’s having been ordered by this Court on June 17, 1983, to supplement the record initially filed. Inferences necessarily drawn