Opinion
January 7, 1983.
Probation and parole — Credit for time spent in detention on new charges — Timeliness of revocation hearing.
1. Time spent by a parolee in detention, awaiting trial on new charges without posting bail and not solely as a result of a detainer by the Board of Probation and Parole, is credited against his new sentence, not against the original sentence backtime. [73]
2. The one hundred twenty day time period within which a parole revocation hearing must be held after verification of a new conviction is received, does not begin to run until the parolee is returned to state custody. [73]
Submitted on briefs November 22, 1982, to Judges ROGERS, CRAIG and MacPHAIL, sitting as a panel of three.
Original jurisdiction, No. 309 Misc. Dkt. No. 3, in case of Richard Sturtz v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole. Petition for review in the Commonwealth Court of Pennsylvania seeking recomputation of sentence. Held: Board action affirmed.
Timothy P. Wile, Assistant Public Defender, for petitioner.
Robert A. Greevy, Chief Counsel, with him Arthur R. Thomas, Assistant Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Petitioner Richard Sturtz, a parole violator reincarcerated pursuant to conviction of an offense committed while on parole, has filed a petition for review of the actions of the Pennsylvania Board of Probation and Parole in connection with the revocation of his parole and recomputation of his sentences.
The petition for review presents two issues which we have recently considered in other cases:
First, where a parole violator, ultimately convicted for an offense committed while on parole, does not obtain release on bail pending trial but remains in detention, should the pre-trial detention time, after the lodging of a detainer against him by the Board of Probation and Parole, be counted toward the original sentence backtime or attributed to the sentence for the new offense?
Second, was petitioner's revocation hearing conducted by the board in accordance with the 120-day time limit under 37 Pa. Code § 71.4(2) ?
We have answered the first question several times recently, pointing out that the pre-trial detention time is counted toward the new sentence, not toward the backtime, when bail is not posted, even though bail-posting may admittedly be unlikely. In Campbell v. Pennsylvania Board of Probation and Parole, 48 Pa. Commw. 454, 409 A.2d 980 (1980), we cite our decisions clarifying Mitchell v. Pennsylvania Board of Probation and Parole, 31 Pa. Commw. 243, 375 A.2d 902 (1977). Counsel should note that a full understanding of this line of cases involves consideration of cases after the 1977 Mitchell case.
With respect to the second question, we note that the cited regulation requires that a revocation hearing be held within 120 days from the date the board has received official verification of the conviction, except that where the parolee is confined outside the jurisdiction of the Pennsylvania Bureau of Correction, the revocation hearing is to be held within 120 days of verification of the return of the parolee to a state correction facility. Here, although the April 21, 1982 revocation hearing was held more than 120 days after the convictions in November of 1981, the parolee was not returned to state custody until February 9, 1982, less than ninety days before the revocation hearing, which was therefore timely. Brown v. Pennsylvania Board of Probation and Parole, 70 Pa. Commw. 597, ___ A.2d ___ (1982).
The board will be affirmed.
PER CURIAM ORDER
NOW, January 7, 1983, the actions of the Pennsylvania Board of Probation and Parole, as herein appealed, are affirmed.