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

• Decision Date: 25 January 1979
• Citation: 40 Pa.Cmwlth. 149,396 A.2d 898
• Parties: Jeffrey A. KUNKELMAN, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

396 A.2d 898

40 Pa.Cmwlth. 149

Jeffrey A. KUNKELMAN, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF

PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

January 25, 1979.

Jeffrey A. Kunkelman, Reading, for petitioner.

Robert A. Greevy, Asst. Atty. Gen., Pa. Board of Probation & Parole, Harrisburg, for respondent.

Before BOWMAN, President Judge, and CRUMLISH Jr., WILKINSON, MENCER, ROGERS, BLATT, DiSALLE, CRAIG and MacPHAIL, JJ.

OPINION

CRUMLISH Jr., Judge.

Jeffrey A Kunkelman (Petitioner) has filed a petition for writ of habeas corpus challenging his detention by the Pennsylvania Board of Probation and Parole (Board) pending disposition of criminal charges in Berks County, which this Court will treat as a petition for review. Board filed an answer with new matter to which Petitioner filed a reply with new matter. Petitioner then moved for summary judgment and Board filed a cross motion for summary judgment. These motions are presently before us.

The pertinent facts are as follows: On August 28, 1975, Petitioner was sentenced to an indeterminate to six-year term for robbery and criminal conspiracy. He was paroled on September 8, 1976 but subsequently was arrested on charges of receiving stolen property, firearms not to be carried without license, offensive weapon, and criminal conspiracy on April 26, 1978. On April 27, 1978, a parole violation warrant was filed charging a technical parole violation. A preliminary/detention hearing by a representative of Board was conducted on May 11, 1978. On June 13, 1978, a prima facie case was established against Petitioner at a criminal preliminary hearing. Board's action, as recorded on June 19, 1978, was "detain pending disposition of criminal charges and return as a technical parole violator when available, schedule violation hearing at appropriate time."

We perceive three issues properly before us for review. ^[1]

Petitioner's first contention is that the lodging of the Board's detainer unconstitutionally deprived him of his liberty in that his basic right to bail was denied. Petitioner argues that an individual who has a detainer lodged against him has a right to bail. This contention has consistently been held to be without merit. Burgess v. Roth, 387 F.Supp. 1155 (E.D.Pa.1975).

Petitioner's next contention is that the detainer lodged on the basis of a technical parole violation is premature and therefore a violation of due process in that Petitioner has not been convicted on the charge of possession of firearms. This contention is likewise without merit. Board has the right to detain the parolee who is alleged to be a technical parole violator and is required merely to give him a hearing In futuro. Commonwealth ex rel. Johnson v. Bookbinder, 213 Pa.Super. 335, 247 A.2d 644 (1968). The fact that he is charged with a crime is irrelevant since there was also an alleged violation of the conditions of parole.

Petitioner's final contention, although not mentioned in the pleadings, is that he was afforded a final revocation hearing on August 10 1978, and that this hearing was untimely. Board responds that this final hearing was within 120 days from the date of the preliminary hearing on May 11, 1978. The regulations which control appear in 7 Pa.B. 487, and the pertinent provision reads: "71.2(11) . . . If...