Mateo v. Commonwealth

Opinion by

Judge DiSalle,

On July 20, 1978, Ramon R. Mateo (Petitioner) filed a Petition for Review, challenging the actions of the Pennsylvania Board of Probation and Parole (Board) recommitting him as a technical and convicted parole violator. On August 24, 1978, the Board filed an answer with new matter. Each party asks for judgment on the pleadings.

The facts follow. On August 23, 1976, Petitioner received a sentence of one and one-half to five years for aggravated assault from which he was paroled on July 28, 1977. On October 21, 1977, he was arrested on charges of burglary, possession of an instrument of crime, and possession of a controlled substance, but was released on bail before the Board learned of the arrest. One month later, Petitioner was arrested on charges of attempted burglary, and on November 22, 1977, the Board lodged a parole violation warrant against him.

Following a December 6, 1977 preliminary/detention hearing, the Board ordered Petitioner detained and returned as a technical parole violator. On March 28, 1978, Petitioner was convicted of two counts of attempted burglary, and two weeks later, he requested that his revocation hearing be continued until after sentencing. On June 27,1978, he was sentenced to two concurrent terms of two to five years on the attempted burglary convictions. Petitioner was received at tbe State Correctional Institution at Graterford on July 3, 1978, and following a revocation bearing beld on August 24, 1978, tbe Board ordered Petitioner recommitted.

Petitioner asks that we vacate tbe Board’s order and reinstate biro on bis original parole status on tbe grounds that tbe Board failed to conduct timely bearings. In response to Petitioner’s first contention that 37 Pa. Code §71.2(3) requires tbe Board to conduct tbe preliminary bearing witbin ten days of tbe lodging of tbe detainer warrant, we note that effective March 1, 1977, 7 Pa. B. 487 amends that section to give tbe Board fifteen days witbin wbicb to conduct tbe preliminary bearing. Since here tbe bearing occurred 14 days after lodging of tbe detainer warrant, we cannot agree that it was untimely.

Similarly, we reject Petitioner’s second contention that tbe revocation bearing was untimely. Ordinarily, tbe Board must conduct tbe revocation bearing witbin 120 days of tbe preliminary bearing.¹ However, 7 Pa. B. 487, §71.4, provides that a parolee convicted of a new criminal offense, shall, if confined outside tbe jurisdiction of tbe Pennsylvania Bureau of Corrections, such as in a county correctional institution, be given a revocation bearing witbin 120 days of bis return to a state correctional facility. Since Petitioner received a bearing witbin 120 days of tbe date on wbicb be was transferred from tbe county facility to tbe state facility (July 3, 1978), that bearing was also timely.²

Order

And Now, this 26th day of January, 1979, the cross-motion of the Pennsylvania Board of Probation and Parole for judgment on the pleadings in the above-captioned case is hereby granted, and the motion of Ramon R. Mateo for judgment on the pleadings is hereby denied.

1 7 Pa. B. 487, §71.2(11).

2 Petitioner also argues that he did not have an interpreter on April 12, 1978, when he agreed to continue his revocation hearing, and that only two of the five Board members were present at the August 24, 1978 hearing, in violation of the requirement that hearings be conducted before a quorum of the Board. Because Petitioner neither made these allegations in his Petition for Review, nor moved for leave to file an amended petition, we need not discuss them.