Opinion
Argued October 18, 1971
March 16, 1972.
Mandamus — Pennsylvania Board of Probation and Parole — Parole Act, Act 1941, August 6, P. L. 861 — Credit against sentence of parole time — Double jeopardy — Convicted parole violator — Right to counsel — Recommitment hearing.
1. Parole Act, Act 1941, August 6, P. L. 861, authorizes the Pennsylvania Board of Probation and Parole to recommit a convicted parole violator for the balance of the original sentence with no credit for time spent on parole while not in custody, and such action is not an imposition of a new sentence and does not constitute double jeopardy nor violate constitutional rights. [16]
2. There is no statutory constitutional requirement that a convicted parole violator be granted a hearing upon recommitment or be afforded the right to counsel.
Argued October 18, 1971, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER and ROGERS.
Original jurisdiction, No. 113 C.D. 1971. Complaint in mandamus in the Commonwealth Court of Pennsylvania in case of Commonwealth ex rel. Leroy Noble v. Joseph R. Brierley, Superintendent, State Correctional Institution at Pittsburgh, and Pennsylvania Board of Probation and Parole. Respondents filed motion for judgment on the pleadings. Held: Motion granted. Complaint dismissed.
Thomas J. Dempsey, Voluntary Defender, for petitioner.
Salvatore Cucinotta, Deputy Attorney General, with him Leonard Packel, Deputy Attorney General, and J. Shane Creamer, Attorney General, for respondents.
Petitioner, Leroy Noble, seeks by action in mandamus to challenge the constitutional and statutory rights of the Pennsylvania Board of Probation and Parole to recommit him as a convicted parole violator for the full unexpired maximum term of his original or Board extended sentence upon conviction of a new crime committed while on parole.
Basically, petitioner challenges the Board's recommitment action on two grounds. First, he alleges that such recommitment involves a denial of due process of law and of equal protection of the laws under the United States and the Pennsylvania Constitutions. We have specifically decided this issue to the contrary in the recent decision in Williams v. Board of Probation and Parole, 3 Pa. Commw. 633, 640 (1971), where we said: "No new sentence has been imposed but rather a reimposition of an existing sentence temporarily lifted by parole as an incentive to abide by the law has occurred. Such reimposition and reincarceration comport with constitutional protections against infringement of personal liberty and civil rights.".
Second, he alleges that he was entitled to representation by counsel at the recommitment hearing under the doctrine expressed in Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969). We again specifically rejected such a contention in Commonwealth ex rel. Rambeau v. Board of Probation and Parole, 4 Pa. Commw. 152 (1972), where we declared that, where the applicable statute does not require a hearing upon recommitment, there is no right to counsel.
Petitioner makes the additional argument that the motion for judgment on the pleadings filed by the respondent, Board of Probation and Parole, should not be granted in these circumstances because of the serious constitutional issues raised. Having previously disposed of these constitutional issues in the above cited opinions, we need not discuss the general merit of such argument.
We therefore grant the respondents' motion for judgment on the pleadings and dismiss the petitioner's complaint in mandamus.