For the Defense - Vol. 8, Issue 4 - 23

R
epresenting a criminal defendant who was on county parole
supervision at the time he is alleged to have committed a
new crime undoubtedly complicates defense counsel's efforts
to work out a global resolution to his predicament. No matter how
complicated a criminal case gets, you at least have the comfort of
working in a familiar system where prosecutors negotiate, and
judges have wide discretion. Under the rules of criminal procedure,
a county parole recommitment and a new sentence may be served
concurrently.1
The path to this optimal result involves negotiations,
developing compelling arguments for this equitable treatment, and
timing sentencings and revocations so that the judge most likely to
say " concurrent " is the last to impose judgment.
When a client is on state parole supervision, you leave the
familiarity of the court room. Revocation is a civil proceeding where
Pennsylvania Board of Parole regulations govern. A state revocation
is prosecuted by a hearing agent whose familiarity with the case is
limited to the information contained in the case file prepared by the
supervising agent. Since all the agent needs to meet his/her burden
of proof at the revocation hearing is a court document establishing
the new conviction, the agent is less likely to negotiate. The
Board's discretion in recommitting your client is limited to what the
Pennsylvania General Assembly authorizes. The Parole Code requires
consecutive service of the recommitment and a specific order to the
service of the recommitment and new sentence depending on its
place of confinement. The jurisprudence interpreting this statute
is full of pitfalls for the unwary and failing to avoid them can
unnecessarily extend your client's aggregate period of confinement.
As the Board may detain a parolee following arrest, but defer its
decision until after a conviction, the best global resolution of this
client's predicament involves keeping the following in mind when
resolving the new criminal charges.
Know the difference between technical and convicted parole
violators and avoid having your client deemed to be the latter.
A convicted parole violator is one who has been convicted in a
court of record for an offense punishable by incarceration.2
The
fine print on parole release orders notifies the parolee that the
commission of a new criminal offense while on supervision may
cause a return to state prison to serve the balance of his sentence
with no credit for any of the time he was at liberty on parole. If
your client was paroled at the minimum on a one to ten, an arrest
for even a minor drug offense on the day parole was due to expire
could cause a return to a state prison to serve nine years. Under
these circumstances the aggressive pursuit of suppression and a trial
may justify risking the wrath of those who would entice the client
with plea offers of time served.
For the last two years, the ability of the Board to recommit as
a convicted parole violator has also included non-court of record
convictions for third degree misdemeanors and a list of summary
offenses.3
While the Board is statutorily authorized to recommit a convicted
parole violator to serve the unserved balance of the original
sentence, it will also establish the length of time which must be
spent serving the recommitment prior to sua sponte considering
him for re-parole.9
automatic. He must be interviewed and convince the Board that he
is ready for reentry into society.
The time he must wait for that re-parole interview is based on
the Board's suggested guideline ranges for the new conviction. To
levy an assessment of back time above the guideline range, the
Board must present evidence of aggravating circumstances at the
revocation hearing.10
An assessment of back time which is within
this range may not be appealed by the parolee as excessive.11
If you have a cold case and the client has a record you
should always check to make sure the date of the offense did not
fall within a period of state parole supervision. Even if decades have
passed and the ex-parolee has a hefty new sentence to serve, the
Board will bring him back to serve a recommitment. The mere fact
that a conviction occurs after the parole period has expired will not
For the last four decades, the Board's presumptive guidelines
consisted of ranges of months for a list of criminal offenses extant
in the 1980's.12
Beginning in 2024, the Board will be using new
recommitment ranges tied to the 8th edition of the sentencing
guidelines offense gravity score of the most serious offense
Vol. 8, Issue 4 l For The Defense 23
deprive the Board of jurisdiction to revoke parole if the conduct
underlying that conviction occurred during the term of parole or
delinquency on parole.4
It is an open question as to whether a plea to an ungraded
misdemeanor at a preliminary hearing would be considered by the
Board to be subject to a convicted parole violator recommitment
as the statute specifically references third degree misdemeanors.
It is also arguable that a first offense DUI (general impairment) is
not subject to a convicted parole violator recommitment as it is not
punishable by incarceration. While there is Superior Court authority
to the contrary,5
the Board has rescinded a recommitment for first
offense general impairment because it concluded incarceration was
impossible.6
A technical violation occurs when a parolee violates a general or
special condition of supervision. It includes convictions ineligible
for recommitment as a parole violator, and it can include acts of
assaultive behavior or drug possession which were initially charged
as criminal offenses that were dismissed or withdrawn prior to trial7
as refraining from assaultive behavior and the possession of these
items are general state parole conditions.
Compared to its draconian treatment of convicted parole
violators, the Parole Code's sanctions for technical parole violators
are measured and limited. A technical parole violator does not forfeit
her non-delinquent street time, the term of the recommitment is
capped at a year or less, and on good behavior she must be released
on re-parole within the applicable 6-, 9- or 12-month cap.8
While
the Board has the discretion to not revoke parole or to award parole
liberty credit if revoked, the only guarantee that the client will not
forfeit the time spent at liberty on parole is when one is able to
negotiate a plea to a summary offense that is not on the convicted
parole violator list in 61 PA C.S. § 6138(a)(1.1).
The lower the offense gravity score on the most serious new
conviction, the better the revocation results.
Re-parole for the convicted parole violator is not
For the Defense - Vol. 8, Issue 4

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