Anderson v. Com., Pennsylvania Bd. of Probation and Parole

• Decision Date: 02 March 1984
• Citation: 472 A.2d 1168,80 Pa.Cmwlth. 574
• Parties: Michael ANDERSON, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1168

472 A.2d 1168

80 Pa.Cmwlth. 574

Michael ANDERSON, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs.

Decided March 2, 1984.

Timothy P. Wile, Asst. Public Defender, Parole Division, Norristown, for petitioner.

Arthur R. Thomas, Asst. Chief Counsel, Robert Greevy, Chief Counsel, Harrisburg, for respondent.

Before BLATT, WILLIAMS and DOYLE, JJ.

WILLIAMS, Judge.

Michael Anderson (petitioner) petitions for review of the denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board) from its order of June 15, 1982 recommitting him to serve two (2) years, one (1) month and twenty-eight (28) days backtime and reestablishing his maximum term expiration date (maximum) as January 23, 1988.

On January 24, 1973 the petitioner was sentenced to a term of one (1) year, three (3) months to ten (10) years (original sentence) by Judge Stout of the Court of Common Pleas of Philadelphia County for Murder-Second Degree. His minimum term expiration date (minimum) was October 10, 1973 and the maximum was July 10, 1982. He was paroled on February 7, 1974; but when his whereabouts became unknown, the Board declared him to be delinquent as of August 4, 1974. Following his apprehension, the Board recommitted him as a technical parole violator (TPV), effective February 10, 1979 and recomputed his maximum as January 16, 1983.

The petitioner was reparoled, effective March 5, 1980; however, he was again arrested and recommitted by the Board as a TPV, effective July 28, 1980. No adjustment was made to his maximum at that time.

Effective June 17, 1981, the petitioner was again reparoled and on November 5, 1981, he was arrested by the Montgomery County authorities (county authorities) on new criminal charges. On November 18, 1981, the Board filed a detainer against the petitioner based on these new criminal charges and for technical parole violations. After being convicted on March 18, 1982 in the Court of Common Pleas of Montgomery County, he was sentenced to a term of time served to twenty-three (23) months plus two (2) years of county probation. He remained in the custody of the county authorities thereafter until the Board, after conducting the requisite hearings, ordered him recommitted as stated above.

In recomputing the petitioner's backtime, the Board did not credit him for the period which he spent in the custody of the county authorities after March 18, 1982 and in reestablishing his maximum, the Board included the periods which he spent at liberty when he was paroled in 1974 and in 1980. The petitioner asserts here that the Board erred in both instances.

In reviewing an adjudication by the Board, we are limited to a determination of whether it is supported by substantial evidence, is in accordance with the law and is observant of the petitioner's constitutional rights. Stevenson v. Pennsylvania Board of Probation and Parole, --- Pa. Commonwealth Ct. ---, 460 A.2d 409 (1983). The questions presented by the petitioner are whether the period which he spent in the custody of the county authorities after March 18, 1982 should be credited against his original sentence and whether the time which he spent at liberty when he was paroled in 1974 and 1980 can be included in the recomputation of his maximum.

In regard to the first question, the petitioner contends that he was granted county parole effective March 18, 1982 and that he was being held by the county authorities thereafter solely because of the Board's detainer and that, under such circumstances, the rule of Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980) requires that such time be credited against his original sentence. ¹ The Board attempts to counter this argument by asserting that he was not being held by virtue of its detainer during that period, but rather it implies that he was serving time on his March 18, 1982 conviction. The Board maintains that the certified record of this case, which it has submitted, clearly indicates that the petitioner was granted county parole on June 8, 1982. We disagree. We have carefully searched the entire record in this case and have found no competent evidence to support a June 8, 1982 county parole date. We are persuaded by the common sense of the petitioner's argument that the sentence which he received on March 18, 1982 would immediately free him from the custody of the county authorities were it not for the Board's detainer. Therefore, we conclude that the claimant was held after March 18, 1982 solely because of the Board's detainer and, consequently, we must conclude that under Hines the Board erred when it refused to credit the time spent by the petitioner in the custody of the county authorities after March 18, 1982 against his original sentence.

The petitioner also contends that the Board erred when it recomputed his maximum by including in its calculations the time which he spent on parole in 1974 and in 1980. He argues that the Board can increase his maximum only by the time which he spent on parole since his last reparole on June 17, 1981.

Section 21.1(a) of the Parole Act, Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a(a), provides, in pertinent part, that if a parolee is recommitted as a convicted parole violator (CPV) "he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole ...." In Haun v. Cavell, 190 Pa.Superior Ct. 346, 154 A.2d 257 (1959), cert. denied, 363 U.S. 855, 80 S.Ct. 1618, 4 L.Ed.2d 1737 (1960), the above-cited provisions of Section 21.1(a) were construed by the Superior Court to mean that a recommitted parole violator was required to serve that portion of the sentence actually remaining on the date of his release on parole. However, Section 21.1(a) does not distinguish between parolees recommitted after only one period of parole and those such as the petitioner who have had several intermittent periods of parole and the Haun court had no need to specify whether it was referring to the original parole date or the most recent date of parole.

Neither the petitioner nor the Board has cited any case on point and our research has revealed no such precedent. Therefore, we must carefully consider the statutory language involved in accordance with the established rules of construction as found in the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501-1991, in order to resolve this question.

Section 1921, 1 Pa.C.S. § 1921, provides in pertinent part:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all of its provisions.

....

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

....

(3) The mischief to be remedied.

(4) The object to be attained.

....

(6) The consequences of a particular interpretation.

....

Section 1922(1), 1 Pa.C.S. § 1922(1), provides in pertinent part:

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:

[T]he General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

With these principles in mind, we must now ascertain the legislative intent behind Section 21.1(a) and determine whether...