§ 75.1. Application of presumptive ranges to convicted parole violators.
(a) Presumptive ranges of parole backtime to be served will be utilized if a parolee is convicted of a new criminal offense while on parole and the Board orders recommitment as a convicted parole violator after the appropriate revocation hearing.
(b) The presumptive ranges of parole backtime are intended to structure the discretion of the Board while allowing for individual circumstances in terms of mitigation and aggravation to be considered in the final decision.
(c) The Board may deviate from the presumptive range or determine that recommitment should not occur, provided written justification is given.
(d) The presumptive ranges are intended to directly relate to the severity of the crime for which the parolee has been convicted.
(e) The severity ranking of crimes listed in § 75.2 (relating to presumptive ranges for convicted parole violations) is not intended to be exhaustive, and the most closely related crime category in terms of severity and the presumptive range will be followed if the specific crime which resulted in conviction is not contained within the listing.
Source The provisions of this § 75.1 adopted August 17, 1979, effective August 18, 1979, 9 Pa.B. 2687.
Notes of Decisions Calculating Backtime
In ascertaining the most closely related offense to calculate backtime for a convicted parole violator, the Board of Probation and Parole must look to the conduct for which the parolee was convicted, determine what crime that conduct would constitute if it occurred in Pennsylvania, and apply the presumptive range for the Pennsylvania crime. Abrams v. Board of Probation, 935 A.2d 604, 607 (Pa. Cmwlth. 2007)
Presumptive Range—Deviation
The Board of Probation and Parole in recommitting petitioner, on probation for third degree murder, deviated from the applicable presumptive range but provided sufficient written justification where it noted ‘‘Convicted for sexually assaulting a young child. Client is extreme danger to the community and his conduct is abhorrent.’’ This justification was supported by substantial evidence of aggravating circumstances. Green v. Board of Probation and Parole, 664 A.2d 667 (Pa. Cmwlth. 1995); appeal denied 674 A.2d 1077 (Pa. 1996).
The Board of Probation and Parole may, on a case-by-case basis, exceed the presumptive range when determining recommitment if written justification is presented. Bradley v. Board of Probation and Parole, 587 A.2d 839 (Pa. Cmwlth. 1991).
Where the Board exceeds the maximum presumptive range in awarding back time for parole violations, the Board is required to provide written justification for imposing that excessive back time; those aggravating reasons must also be supported by substantial evidence contained in the record. Bandy v. Board of Probation and Parole, 530 A.2d 507 (Pa. Cmwlth. 1987); appeal denied 540 A.2d 535 (Pa. 1988).
Where written justification for exceeding presumptive range was given, and parolee’s testimony supported Board’s conclusion that parolee had negative attitude and interest in parole, Board did not abuse its discretion in exceeding presumptive range for violation. Clark v. Board of Probation and Parole, 527 A.2d 1085 (Pa. Cmwlth. 1987); appeal denied 538 A.2d 880 (Pa. 1987).
The Board did not abuse its discretion, where written justification was given for exceeding presumptive range, to the effect that petitioner, while on parole after murder conviction, had engaged in assaultive behavior and possessed a knife less than 1 month following release. Pounds v. Board of Probation and Parole, 527 A.2d 180 (Pa. Cmwlth. 1987); decision vacated 558 A.2d 859 (Pa. 1988)
Written justification must be given for deviations from the presumptive ranges for recommitment of a parole violator and where mitigating factors previously cited no longer exist, no written justification is deemed given. Kilpatrick v. Board of Probation and Parole, 521 A.2d 978 (Pa. Cmwlth. 1987).
Board did not abuse its discretion by imposing twice the maximum of the presumptive range since the Board found several aggravating circumstances: (1) client on parole for serious offense; (2) violation related to current offense; (3) evidence of crimes within client’s control; (4) possession of firearm involved; and (5) client a threat to community. Greco v. Board of Probation and Parole, 513 A.2d 493 (Pa. Cmwlth. 1986).
Where parolee had plead guilty to 29 counts of welfare fraud and one count of criminal conspiracy offenses which had cost the Commonwealth over $400,000, the Board did not err in analyzing those offenses to ‘‘Theft by Deception Over $200’’ rather than to ‘‘Theft-Misdemeanor of the Third Degree’’ and, even if it had applied the wrong category, the Board would have been justified in exceeding the presumptive range by the aggravating circumstances. Caldwell v. Board of Probation and Parole, 511 A.2d 884 (Pa. Cmwlth. 1986).
The fact that Nevada imposes less severe punishment for carrying a concealed weapon than does Pennsylvania does not require that a lesser presumptive range for recommitment be applied since it is the severity of the criminal conduct and not the severity of the punishment that determines the presumptive range. Harrington v. Board of Probation and Parole, 507 A.2d 1313 (Pa. Cmwlth. 1986).
In computing length of recommitment as convicted parole violator, the appellant was recommitted as a technical violator for acts constituting new crimes for which he was convicted, which was beyond the authority of the board. Massey v. Board of Probation and Parole, 501 A.2d 1114 (Pa. 1985).
Since subsection (e) provides that the listing of crimes and presumptive ranges in § 75.2 is not exhaustive, the Board acted properly in recommitting petitioner as convicted parole violator even though New Jersey crime had no direct Pennsylvania analog. Morris v. Board of Probation and Parole, 500 A.2d 1286 (Pa. Cmwlth. 1985).
Omission of a multiple conviction provision from this section indicates that the board has discretion to recommit for each separate criminal conviction. Perry v. Board of Probation and Parole, 485 A.2d 1231 (Pa. Cmwlth. 1984).
The Board’s adoption of presumptive ranges of 48 months backtime for violation of conditions of parole pertaining to ownership of firearms and assaultive behavior was within its discretion of this section and was supported by substantial evidence in the record. Chapman v. Board of Probation and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984).
Due process does not require that a parole violator be given credit against backtime for confinement time served on a prior unrelated and unproven parole violation, but rather requires only that such confinement time be credited to the parolee’s maximum term. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984).
The omission of multiple conviction provisions from this section indicates that the board has discretion to recommit for each separate criminal conviction. Corley v. Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984).
Although the Code does not explicitly state that the Board may consider each criminal conviction as a separate parole violation and may aggregate backtime accordingly, that interpretation is implicit in a comparison of the regulations governing the application of presumptive ranges for convicted parole violators, this section, with those governing technical parole violators, 37 Pa. Code § 75.4. Corley v. Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984).
A reasonable interpretation of subsections (b) and (c) is that the board may consider mitigating and aggravating circumstances to arrive at a recommitment time within the presumptive range, but need only set forth those circumstances when consideration of them leads to an order deviating from the presumptive range. Corley v. Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984).
The Board adopted the presumptive ranges found in this chapter in an attempt to structure the discretion of the Board while allowing deviation for individual circumstances. Gundy v. Board of Probation and Parole, 478 A.2d 139 (Pa. Cmwlth. 1984).
In upholding a 10 month recommitment for a parolee’s conviction of the summary offense harassment, the court noted that the Board should clearly articulate its reasons for deviating from the presumptive range for criminal convictions under 37 Pa. Code § 75.1(c). Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).
The regulations for backtime recommitment are sufficiently specific so that parolee’s recommitment for backtime is not violative of due process if the recommitment is within the presumptive range and if the parolee does not allege any mitigating factors which the Board has refused to consider. Macon v. Board of Probation and Parole, 455 A.2d 1279 (Pa. Cmwlth. 1983).
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