Summary
dismissing petition for review as moot where petitioner had not yet been sentenced for a new conviction at the expiration of the maximum date on his original sentence and could not be awarded relief because he was no longer under the custody and control of the Board
Summary of this case from El-Amin v. Pa. Parole Bd.Opinion
Submitted on briefs, October 12, 1978.
January 30, 1979.
Pennsylvania Board of Probation and Parole — Moot questions — Expiration date of maximum sentence — Control by Board.
1. Questions relating to the calculation by the Pennsylvania Board of Probation and Parole of the expiration date of a modified maximum sentence of a parole violator become moot after that date has passed, and the Commonwealth Court of Pennsylvania has no authority to act on such a matter when the Board has no further control or custody over the violator. [191-2]
President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., MENCER, ROGERS, BLATT, DiSALLE, CRAIG and MacPHAIL.
Original jurisdiction, No. 26 Misc. Dkt. No. 2, in case of David D. Sands v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole. Petition for review in the Commonwealth Court of Pennsylvania challenging recommitment as parole violator. Answer filed. Motions for summary judgment filed. Held: Petition and motions dismissed.
David D. Sands, petitioner, for himself.
Robert A. Greevy, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.
David D. Sands (petitioner) filed a petition for review from a decision of the Pennsylvania Board of Probation and Parole (Board) recommitting petitioner as both a technical and convicted parole violator. After the petition and the Board's answer were filed, petitioner filed a motion for summary judgment, and the Board filed a cross-motion for summary judgment. This Court ordered the summary judgment motions to be submitted on briefs. After review, we now hold that the issues thus presented are moot, and therefore we dismiss the petition for review and also the motion and cross-motion for summary judgment.
The facts are not in dispute. On December 19, 1975, petitioner began serving a sentence of six months to two years, with a minimum release date of June 19, 1976, and a maximum of December 19, 1977. Petitioner was paroled on June 19, 1976, having served six months of the sentence.
On April 20, 1977, petitioner was arrested on technical parole violations, and was given a violation hearing on April 28, 1977. On May 25, 1977, while still in custody for the parole violation, petitioner was arrested on charges of perjury. On May 31, 1977, the Board decided to recommit petitioner as a technical parole violator "when available."
Petitioner was found guilty of perjury on September 23, 1977, and sentencing was deferred. On October 27, 1977, petitioner, having waived a full board hearing, was afforded a revocation hearing by a representative of the Board, after which the Board, on November 30, 1977, reaffirmed petitioner's recommitment as a technical parole violator and also decided to recommit him as a convicted parole violator. Petitioner's maximum release date was modified to October 20, 1978.
The Certificate of the Chairman of the Pennsylvania Board of Probation and Parole stated that petitioner had backtime of one year and six months on his sentence. Because petitioner had served six months of a six-month to two-year sentence, that determination is correct. The Board apparently added the one year and six months directly to April 20, 1977, the date of petitioner's arrest for technical parole violation. The new maximum release date thus determined was October 20, 1978.
The issues raised by petitioner all reduce themselves to questioning the Board's calculation of petitioner's modified maximum release date of October 20, 1978, as to the original sentence. However, the modified maximum release date of October 20, 1978 has already passed. In fact, the pleadings on this case were not closed until October 10, 1978, when the Board filed its brief in support of cross-motion for summary judgment.
As of October 20, 1978, the Board no longer exercised custody and control over petitioner because, by its own determination, petitioner's modified sentence was completed. Because the Board lost its control over petitioner, we also have no further authority to act on questions raised by the Board's modification of the sentence. Padgett v. Board of Probation and Parole, 30 Pa. Commw. 221, 373 A.2d 467 (1977).
There is no indication in the record that petitioner has yet been sentenced on his perjury conviction of September 23, 1977. However, as President Judge BOWMAN stated in Padgett, supra, as of the expiration date of petitioner's modified maximum sentence on the original charge, the Board no longer asserts custody or control over petitioner. 30 Pa. Commw. at 225, 373 A.2d at 468-69.
Therefore, the issues raised in this case are moot, and we must dismiss the petition for review and the subsequent motions.
ORDER
AND NOW, this 30th day of January, 1979, the petition for review, motion for summary judgment and cross-motion for summary judgment are dismissed.