§ 75.2. Presumptive ranges for convicted parole violators.
If the Board orders the recommitment of a parolee as a convicted parole violator, the parolee shall be recommitted to serve an additional part of the term which the parolee would have been compelled to serve had he not been paroled, in accordance with the following presumptive ranges:
Offense Categories Presumptive Ranges Murder 36 months to expiration of maximum sentence Criminal Conspiracy (Murder) 24 months to 48 months Voluntary Manslaughter 24 months to 48 months Involuntary Manslaughter 12 months to 18 months Homicide by Vehicle 12 months to 18 months Driving Under Influence 3 months to 6 months Violation No Fault Motor Vehicle Insurance Act 3 months to 6 months Accident Involving Death or Personal Injury (Hit and Run) 1 month to 6 months Reckless Driving 0 months to 6 months Aggravated Assault: Felony of the Second Degree 24 months to 40 months Misdemeanor of the First Degree 15 months to 28 months Assault by Prisoner 24 months to 33 months Recklessly Endangering Another Person 12 months to 18 months Simple Assault 9 months to 15 months Terroristic Threats 6 months to 12 months Harrassment 1 month to 6 months Kidnapping 30 months to expiration ofmaximum sentence False Imprisonment 6 months to 12 months Rape (Forcible) 30 months to 48 months Involuntary Deviate Sexual Intercourse 27 months to 40 months Statutory Rape 18 months to 24 months Indecent Assault 12 months to 18 months Indecent Exposure 6 months to 12 months Arson 27 months to 40 months Criminal Mischief: Felony of the Third Degree 6 months to 12 months Misdemeanor of the Second Degree 3 months to 6 months Misdemeanor of the Third Degree or Summary Offense 1 month to 3 months Burglary 15 months to 24 months Criminal Trespass: Felony of the Second Degree 12 months to 18 months Felony of the Third Degree 6 months to 12 months Misdemeanor of the Third Degree or Summary Offense 1 month to 6 months Robbery: Felony of the First Degree 30 months to 48 months Felony of the Second or Third Degree 24 months to 40 months Theft: Felony of the Third Degree or Misdemeanor of the First Degree 6 months to 12 months Misdemeanor of the Second Degree 3 months to 6 months Misdemeanor of the Third Degree 1 month to 6 months Theft by Deception: Felony of the Third Degree or Misdemeanor of the First Degree 6 months to 12 months Misdemeanor of the Second Degree 3 months to 6 months Misdemeanor of the Third Degree 1 month to 6 months Receiving Stolen Property: Felony of the Third Degree or Misdemeanor of the First Degree 6 months to 12 months Misdemeanor of the Second Degree 3 months to 6 months Misdemeanor of the Third Degree 1 month to 6 months Theft of Services: 6 months to 12 months Felony of the Third Degree or Misdemeanor of the First Degree 6 months to 12 months Misdemeanor of the Second Degree 3 months to 6 months Misdemeanor of the Third Degree or Summary Offense 1 month to 6 months Unauthorized Use of Auto or Other Vehicle 6 months to 12 months Retail Theft: Felony of the Third Degree or Misdemeanor of the First Degree 6 months to 12 months Misdemeanor of the Second Degree 3 months to 6 months Misdemeanor of the Third Degree or Summary Offense 1 month to 6 months Forgery 6 months to 12 months Bad Checks: Misdemeanor of the Second Degree 6 months to 12 months Summary Offense 1 month to 6 months Credit: Felony of the Third Degree 6 months to 12 months Misdemeanor of the Second Degree 3 months to 6 months Summary Offense 1 month to 6 months Incest 12 months to 18 months Unsworn Falsification to Authorities 3 months to 6 months Obstructing Administration of Law or other Governmental Function 6 months to 12 months Resisting Arrest 6 months to 12 months Escape 6 months to 12 months Default in Required Appearance 1 month to 6 months Failure to Disperse Upon Official Order 3 months to 6 months Disorderly Conduct 1 month to 6 months Harassment by Communication or Address 1 month to 6 months Loitering & Prowling at Night 6 months to 12 months Open Lewdness 3 months to 6 months Prostitution 3 months to 6 months Drug Law Violations: Felony with Statutory Maximum of 15 years 24 months to 36 months Felony with Statutory Maximum of 10 years 18 months to 24 months Felony with Statutory Maximum of 5 years 9 months to 15 months Felony with Statutory Maximum of 3 years and Misdeameanors with Statutory Maximum of 2 or 3 years 6 months to 12 months Misdemeanor with Statutory Maximum of 1 year 3 months to 6 months Misdemeanor with Statutory Maximum of 30 days 1 month to 3 months Violation of any Provision of the Pennsylvania Uniform Firearms Act 18 months to 24 months Prohibited Offensive Weapons 12 months to 18 months Possessing Instruments of Crime 6 months to 12 months Corruption of Minors 18 months to 24 months Criminal Attempt Relate to Crime Criminal Solicitation Relate to Crime Criminal Conspiracy Relate to Crime
Source The provisions of this § 75.2 adopted August 17, 1979, effective August 18, 1979, 9 Pa.B. 2687; amended January 16, 1981, effective January 17, 1981, 11 Pa.B. 353; amended June 1, 1984, effective June 2, 1984, 14 Pa.B. 1865; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122555) to (122558).
Notes of Decisions Acceptable Sentence
Although this regulation contained no presumptive range for an F-1 aggravated assault, because 40 months falls within the presumptive range for an F-2 aggravated asault, that term was not excessive. Hartage v. Board of Probation and Parole, 662 A.2d 1157 (Pa. Cmwlth. 1995).
Attorney
Where a parole violator did not contest conviction for offense, and backtime imposed for conviction was within the presumptive range as provided under this section, the Board of Probation and Parole’s discretion in imposing that backtime would not be reviewed, and therefore attorney may withdraw on grounds that appeal was frivolous. Congo v. Board of Probation and Parole, 522 A.2d 676 (Pa. Cmwlth. 1987).
Backtime—Not Excessive
Under this regulation, the presumptive range for simple assault is 9 to 15 months. The Board of Probation and Parole’s 15 month imposition of backtime for parolee’s simple assault conviction was within the presumptive range and should not be disturbed. Houser v. Board of Probation and Parole, 675 A.2d 787 (Pa. Cmwlth. 1996); affirmed 682 A.2d 1365 (Pa. 1996); appeal denied 692 A.2d 568 (Pa. 1997).
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)
General Comment
The Board of Probation and Parole cannot recommit a convicted parole violator to serve more than the balance of the parole’s unexpired term. Davenport v. Board of Probation and Parole, 656 A.2d 581 (Pa. Cmwlth. 1995).
Backtime
The General Assembly specifically granted the Board of Probation and Parole discretion to return a parole violator to prison for the entire remaining balance of the unexpired term and where the Board’s findings are supported by substantial evidence and the backtime imposed was within the published presumptive ranges, the Board’s discretion would not be disturbed. LaCourt v. Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985).
—Computation
There was insufficient foundation to compute backtime where there was no court record of degree of crime committed. Allen v. Board of Probation and Parole, 567 A.2d 345 (Pa. Cmwlth. 1989).
Although Code did not explicitly state, the Board of Probation and Parole may aggregate backtime for various offenses, and where recommitment order was within presumptive range when taken in the aggregate, it was not excessive. Pierce v. Board of Probation and Parole, 525 A.2d 1281 (Pa. Cmwlth. 1987); appeal denied 535 A.2d 1059 (1987).
A 33 month backtime recommitment was consistent with the presumptive range for aggravated assault under this section. Macon v. Board of Probation and Parole, 455 A.2d 1279 (Pa. Cmwlth. 1983).
—Not Excessive
Backtime of 24 months was not excessive and the parolee was properly committed as a technical violator for consumption of alcohol and conviction for driving under the influence. Amaker v. Board of Probation and Parole, 544 A.2d 111 (Pa. Cmwlth. 1988); affirmed in part, reversed in part 576 A.2d 50 (Pa. 1990).
Offenses
—Assault
The presumptive range for aggravated assault, graded as a first degree misdemeanor, was 15 to 24 months; for simple assault, 9 to 15 months; for attempted theft by unlawful taking or disposition, graded as a first degree misdemeanor, 6 to 12 months. Bandy v. Board of Probation and Parole, 530 A.2d 507 (Pa. Cmwlth. 1987); appeal denied 540 A.2d 535 (Pa. 1988).
—Conspiracy
Where parolee had been convicted on Federal charges of aiding and abetting a bank robbery, and of conspiracy to rob a bank, the Board of Probation and Parole did not abuse its discretion by imposing 36 months back time, which was well within the presumptive range for the conspiracy alone. Cameron v. Board of Probation and Parole, 496 A.2d 419 (Pa. Cmwlth. 1985).
—Robbery
The presumptive range for the offense of robbery did not violate a parole violator’s right to equal protection because the presumptive range for robbery was correlative with the presumptive ranges for other felonies; there need not be separate presumptive ranges for different degrees of robbery to satisfy equal protection. McClinton v. Board of Probation and Parole, 546 A.2d 759 (Pa. Cmwlth. 1988).
Since the presumptive backtime range for convicted parole violators for robbery was 24 to 40 months and for burglary was 15 to 42 months and the Board of Probation and Parole had discretion to recommit for each separate criminal conviction, it was proper for the Board to set petitioner’s backtime at 48 months, given a maximum cumulative range of 64 months and minimum cumulative range of 39 months based on convictions for burglary and robbery. Garris v. Board of Probation and Parole, 516 A.2d 808 (Pa. Cmwlth. 1986); appeal denied 526 A.2d 1191 (Pa. 1987).
—Trespass
In holding that the imposition of 9 months backtime for a conviction of criminal trespass was supported by sufficient justification, the court noted that this section gives a presumptive backtime range of 3 to 6 months for criminal trespass. Robinson v. Board of Probation and Parole, 461 A.2d 903 (Pa. Cmwlth. 1983).
—Unlisted
The list of offenses set forth in this section and the assignment of a presumptive range of recommitment time in terms of months for each offense was not exhaustive; and in those cases where a parolee was convicted out-of-State of an offense not listed, then the presumptive range of the offense most clearly related in terms of severity was used. Simpson v. Board of Probation and Parole, 556 A.2d 542 (Pa. Cmwlth. 1989); appeal denied 575 A.2d 117 (Pa. 1990).
Presumptive Range
The presumptive ranges established by this Board of Probation and Parole to structure the Board’s discretion to assign a range in terms of months for various parole conditions and various crimes for which a parolee may be connected. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984).
Recommitment for 12 months as a technical parole violator and 60 months as a convicted parole violator was appropriate even though petitioner argued that sentence reflected eleven, not twelve, first degree felonies; the term of recommitment would have been within the presumptious range even if convicted of only one robbery and one burglary in addition to the technical violation. Ralph v. Board of Probation and Parole, 488 A.2d 377 (Pa. Cmwlth. 1985).
The presumptive range of recommitment incarceration directed by this section was not applied where the Board ordered a parolee to service the remainder of his unexpired term for violating a special condition of his parole. Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).
—Deviation
The Board of Probation and Parole 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. 1989).
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 existed, no written justification was deemed given. Kilpatrick v. Board of Probation and Parole, 521 A.2d 978 (Pa. Cmwlth. 1987).
Where the petitioner’s only proven conviction was for burglary, using the presumptive recommitment range for a robbery conviction was a violation of petitioner’s right to due process, unless written justification for the deviation from the proper presumptive range is provided by the Board of Probation and Parole. Zazo v. Board of Probation and Parole, 470 A.2d 1135 (Pa. Cmwlth. 1984).
Cross References This section cited in 37 Pa. Code § 75.1 (relating to application of presumptive ranges to convicted parole violators).
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