Houser v. Pennsylvania Board of Probation & Parole

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. The majority holds that, because Alan Troy Houser (Houser) was recommitted as a convicted parole violator, Houser must lose the credit which he previously received for time served while on parole in good standing prior to technical parole violations. This holding is based on the following cases: Andrews v. Pennsylvania Board of Probation and Parole, 101 Pa. Cmwlth. 468, 516 A.2d 838 (1986); Caldwell v. Pennsylvania Board of Probation and Parole, 98 Pa.Cmwlth. 157, 511 A.2d 884 (1986); Anderson v. Pennsylvania Board of *1369Probation and Parole, 80 Pa.Cmwlth. 574, 472 A.2d 1168 (1984); Morris v. Pennsylvania Board of Probation and Parole, 77 Pa. Cmwlth. 85, 465 A.2d 97 (1983). However, this court has since held in Gregory v. Pennsylvania Board of Probation and Parole, 111 Pa.Cmwlth. 118, 533 A.2d 509, 511-12 (1987) (emphasis added), as follows:

We now hold that where a parolee is recommitted for technical violations only, the plain meaning of the statutory language in Section 21.1(b) is that the parolee must be given credit for street time served in good standing and may not be recommitted beyond the expiration date of the original sentence. We also hold that the recommitment of a parolee as a convicted parole violator in a separate and later proceeding by the Board does not expunge the parolee’s entitlement to credit for street time served in good standing as it affects technical parole violation recommitment time nor does it extend the time of the expiration of the parolee’s original sentence as it affects technical parole violation recommitment time.

Quite clearly, this court has taken two conflicting positions with respect to the issue before the court here. However, because Gregory represents this court’s most recent statement of the law on the matter and because Gregory is faithful to the plain meaning of the statutory language, I believe that Gregory must control the outcome in this case.1

Accordingly, I would reverse and remand this case for recomputation of Houser’s maximum sentence date, giving him credit for the time which he served while on parole in good standing prior to his technical parole violations.

. In Gregory, this court focused on the plain language of section 21.1(b) of the Act of August 6, 1941 (commonly known as the Parole Act), P.L. 861, as amended, added by section 5 of the Act of August 24, 1951, P.L. 1401, 61 P.S. § 331.21a(b) (emphasis added), which provides as follows:

(b) Technical Violators. Any parolee ... who, during the period of parole, violates the terms and conditions of parole ... may be recommitted after hearing before the board. If he is so recommitted, he shall be given credit for the time served on parole in good standing ... and may be reentered to serve the remainder of his original sentence....

No provision of the Parole Act provides for the subsequent withdrawal of this credit. Section 21.1(a) of the Parole Act, 61 P.S. § 331.21a(a) (emphasis added), provides:

(a) Convicted Violators. Any parolee ... who, during the period of parole ... commits any crime punishable by imprisonment, for which he is convicted ..., may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, 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 while on parole.

In other words, when an inmate is released on parole and commits technical parole violations, e.g., failure to report, his time at liberty prior to the technical violations is "good time,” for which the parolee receives credit against his maximum unexpired sentence. However, if a parolee is convicted of a criminal offense while on parole, his time at liberty prior to the commission of the crime is not considered "good time,” and the parolee may receive no credit for it.