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Young v. CommonwealthYoung v. Commonwealth

Commonwealth Court of Pennsylvania
Mar 15, 1977
No. 203 Misc. Dkt.
Reporters:
, ,
Before:
Rogers

Opinion bt

Judge Rogers,

Jose C. Young, plaintiff, has filed a complaint in mandamus against the Pennsylvania Board of Probаtion and Parole (Board) seeking relief from what he terms an unlawful recomputation оf his prison sentence, and credit for prison time served under an allegedly unlawful recоmmittal against a subsequent *270sentence. The Board has filed preliminary objections in the nаture ‍​‌‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌‌​‍of a demurrer. We sustain the preliminary objections.

The effect of the Board’s dеmurrer is that we accept as true every fact well pleaded by the plaintiff. Commonwealth v. Toro Development Co., 2 Pa. Commonwealth Ct. 429, A.2d (1971). The сomplaint alleges: that plaintiff was sentenced on June 29, 1971 (original sentence) to а term of indefinite to six years at the Camp Hill Correctional Institution, the termination date оf the maximum sentence being June 29, 1977; that while released on parole from this sentence, he was arrested and convicted of a new offense for which he was sentencеd on March 19, 1976 to a term of one-half to three years in a state correctional institution; that the sentencing judge made no mention of his original sentence or of a parole detainer that had been lodged against the plaintiff two or three weeks aftеr his arrest on the second offense, but did give plaintiff credit for nine ‍​‌‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌‌​‍months of incarceration while awaiting trial on the new offense; that upon plaintiff’s arrival at the state correctional institution, he was entered on the new sentence and given credit for the nine months just mentioned; that six to eight weeks later, the Board conducted a parole viоlation hearing which resulted in his being found in violation; that he was then taken off the new sentence and recommitted under the original sentence; that the original and new sentencеs were to run consecutively with the plaintiff getting credit for the nine months on his new sentence and that upon his recommitment, the Board established the date of the expiration оf the old sentence as November 6, 1979.

Plaintiff first says that the Board may not, upon recommitmеnt, lawfully and constitutionally extend the expiration date of a sentence for which hе was on parole. We have held to the contrary in Kuyken*271dall v. Board of Probation and Parole, 26 Pa. Commonwealth Ct. 234, 363 A.2d 866 (1976). The Board’s recompntation of a convicted parole violator’s sentence, resulting in a denial of credit for time spent ‍​‌‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌‌​‍on parole, does not violate the prisoner’s due procеss rights under either Pennsylvania or United States constitutions.

Plaintiff next says that Pa. R. Crim. P. No. 1406 requires that, absent order to the cоntrary by the sentencing judge, his new sentence must run concurrently with Ms original one, and that the Boаrd’s order requiring consecutive service thereof constitutes an unlawful usurpation of the judicial function. Plaintiff’s argument fails because the sentencing judge had no authority to impose other than consecutive sentences. Section 21.1(a) of the Act of August 6, 1941, P.L. 861, as amended, 61’ P.S. §331.21a(a), rеquires that where, as here, a parolee is convicted and sentenced to imрrisonment for a crime committed wMle on parole, and is ‍​‌‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌‌​‍recommitted by the Board as a parole violator, the remainder of Ms original sentence and the subsequent nеw sentence must be served consecutively. See also Commonwealth v. Draper, 222 Pa. Superior Ct. 26, 293 A.2d 614 (1972).

Plaintiff finally says that the fact that he was first entered at the State correctional institution on his new sentence precluded the Board from revoking his parole and reimposing Ms original sentence. This, too, is without merit. One сonvicted of crimes committed while on parole is not constitutionally entitled to аn immediate parole revocation hearing prior to commencement of his new sentence. Moody v. Dagget, U.S. , 97 S. Ct. 274 (1976). Furthermore, Section 21.1(a) of the Parole Code, 61 P.S. §331.21a(a), requires, in pertinent part, that :

If a new sentence is imposed upon [a convicted ‍​‌‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌‌​‍parоle violator] the service of the bal*272anee of said term originally imposed shall рrecede the commencement of the new term imposed in the following cases:
(1) If a person is paroled from any State penal or correctional institution under the control and supervision of the Department of Justice and the new sentencе imposed upon him is to be served in any such State penal or correctional institutiоn.

Since both sentences imposed upon the plaintiff were to State correсtional institutions, the Act required the original to be first served and, of course, the records would have to reflect this.

Accordingly, we enter the following

Order

And Now, this 15th day of March, 1977, the preliminary objections of the defendant in the nature of a demurrer are sustained and the complaint herein dismissed.

Case Details

Case Name: Young v. Commonwealth
Court Name: Commonwealth Court of Pennsylvania
Date Published: Mar 15, 1977
Citations: 370 A.2d 813; 29 Pa. Commw. 268; 1977 Pa. Commw. LEXIS 751; No. 203 Misc. Dkt.
Docket Number: No. 203 Misc. Dkt.
Court Abbreviation: Pa. Commw. Ct.
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