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

• Decision Date: 01 October 1986
• Citation: 101 Pa.Cmwlth. 132,515 A.2d 1006
• Parties: Harry M. GREEN, Sr., Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1006

515 A.2d 1006

101 Pa.Cmwlth. 132

Harry M. GREEN, Sr., Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Aug. 18, 1986.

Decided Oct. 1, 1986.

Harry M. Green, Sr., pro se.

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

Before CRAIG and PALLADINO, JJ., and BARBIERI, Senior Judge.

BARBIERI, Senior Judge.

This is an appeal by Harry M. Green, Sr., who petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which purports to rescind a prior Board order granting him parole on a 1981 Erie County sentence to a detainer sentence. ¹ We affirm.

The pertinent facts are as follows. In 1979 Green was arrested and charged with Indecent Assault ² and Corrupting the Morals of a Minor. ³ He was convicted of those charges in Erie County Common Pleas Court and sentenced in 1980 to a total of two and one-half to five years. On August 14, 1981, the Pennsylvania Superior Court reversed that judgment of sentence and granted him a new trial. See Commonwealth v. Green, 290 Pa.Superior Ct. 76, 434 A.2d 137 (1981). Green was able to secure his release on bail pending retrial and on January 19, 1982, he was again arrested and charged with Rape, ⁴ Indecent Assault, and Corrupting the Morals of a Minor. The retrial of his 1979 charges was held on March 17, 1982 and he was again convicted of those charges the following day and again sentenced to a term of two and one-half to five years. On July 22, 1982, he was convicted in Erie County Common Pleas Court of the charges stemming from the January 19, 1982 arrest and sentenced to a term of twenty to forty years. On March 23, 1984, the Board granted him parole on his initial two and one-half to five year sentence to his detainer sentence of twenty to forty years. However, the Board modified that order on April 13, 1984, to provide that if Green's detainer sentence was not enforced, he was to be re-interviewed for possible parole to the street. On May 10, 1985, the Pennsylvania Superior Court vacated that sentence and granted Green a new trial on the 1982 charges. See Commonwealth v. Green, 345 Pa.Superior Ct. 617, 496 A.2d 851 (1985) (per curiam). On October 23, 1985, the Board issued an order which "temporarily" suspended its order of March 23, 1984, and continued the matter pending Green's retrial of the 1982 charges. Green was not afforded a Morrissey ⁵ due process hearing or counsel representation prior to the Board issuing its order of October 23, 1985.

In this appeal, Green contends the Board violated his due process rights by failing to afford him a Morrissey hearing with counsel representation prior to revoking the parole granted by its order of March 23, 1984. The Board, for its part, argues Green's parole order was never executed and the Board acted properly in denying him release from prison.

The issue of what due process protections Green was entitled to is dependent upon our resolution of whether the Board's order of March 23, 1984 granting him parole on his initial sentence was ever executed. If that order was executed, and Green was on constructive parole while serving the minimum term of his detainer sentence, the Board was required to satisfy the minimum due process requirements of Morrissey prior to revoking that parole. If, as the Board contends, the March 23, 1984 parole order was never executed, then the Board could properly rescind or suspend its parole order without affording Green a due process hearing or counsel representation. See Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981); Franklin v. Pennsylvania Board of Probation and Parole, 83 Pa.Commonwealth Ct. 318, 476 A.2d 1026 (1984).

In Franklin, we held that a prisoner does not reach the status of a parolee with its attendant due process guarantees until the Board's order granting parole is fully executed and the prisoner released from confinement. 83 Pa. Commonwealth Ct. at 321, 476 A.2d at 1027. See also Jones v. Pennsylvania Board of Probation and Parole, 81 Pa. Commonwealth Ct. 194, 473 A.2d 247 (1984). Both the Board and Green agree that he was never released from confinement. That fact, however, does not end our inquiry.

In Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980), the Pennsylvania Supreme Court recognized the existence of "constructive parole." As noted by Justice Bruce W. Kauffman, a prisoner on "constructive parole" is not released from prison; although paroled on his original sentence, the prisoner immediately begins serving the detainer sentence. Id. at 146 n. 2, 420 A.2d at 383 n. 2. Therefore, a release from confinement is not an absolute prerequisite to the execution of a Board order granting parole. What is required for a prisoner to be constructively paroled is for the prisoner to execute an acknowledgement of the conditions of parole, Board form PBPP-11, and for the Board to issue an order to release on parole, Board form PBPP-10. In the case of a constructive parole, the Board's release order would release the prisoner to the detainer sentence only.

Our review of the record before us shows that neither administrative act was accomplished. The Board never issued an order to release Green on parole to his detainer sentence, the form PBPP-10, and Green never signed an acknowledgement of the conditions of parole, form PBPP-11. In the absence of such administrative action, the Board parole order of March 23 1984, as amended by its order of April 13, 1984, remained unexecuted. Since Green's parole was never executed, he never attained the status of a parolee and the Board could properly rescind that parole order without a prior hearing and counsel representation. Jago, Franklin. That is precisely what the Board did in its order of October 23, 1985.

Green also contends that the Board has violated his due process rights by failing to release him from confinement when the Superior Court vacated his detainer sentence on May 10, 1985. Following the Superior Court's action, the Board, pursuant to its order of April 13, 1984, re-interviewed Green for possible parole and release from confinement. The Board denied him parole based upon the seriousness of the outstanding criminal charges. It is beyond dispute that a prisoner enjoys no right to release from confinement on parole prior to the expiration of his sentence's maximum term. See Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83...