stating that “[w]here the alleged parole violation is based upon an act constituting a new crime of which [the parolee] is convicted, the Board can only resort to recommittal as a convicted parole violator”
How later courts described this case
- stating that “[w]here the alleged parole violation is based upon an act constituting a new crime of which [the parolee] is convicted, the Board can only resort to recommittal as a convicted parole violator”
- technical violation for possession of a weapon, a knife, was not co-extensive with a conviction for robbery
Written by the judges who cited it.
The opinion
McDERMOTT, Justice,
concurring.
I join in the majority opinion. However, I write separately because I believe the majority has missed an opportunity to fully resolve the issue of when a certain sanction is appropriate.
In my view the analysis which best resolves this problem is analogous to that which we apply to merger questions in criminal sentencing. See Commonwealth v. Williams, 514 Pa. 124 , 522 A.2d 1095 (1987), cert. denied, — U.S. —, 108 S.Ct. 2852 , 101 L.Ed.2d 889 (1988). Thus, if a parolee is convicted of a crime, the acts which constitute the elements of that crime cannot form the basis of a technical parole violation. 1 However, separate acts which constitute separate crimes (or violations of parole convictions) for which the parolee was not adjudged can form the basis of technical parole violations.
*189 For example, in this case Mr. Threats was convicted of four robberies. He was not, however, convicted of a weapons offense. Regardless of the fact that a knife may have been the means by which Mr. Threats accomplished the force necessary to accomplish the robberies, the possession of the knife was a distinct offense, and a conclusion that this was a technical violation was not precluded by the convictions on the robberies.
I note with interest that the Commonwealth Court has recently adopted the approach which I am here embracing, Morrow v. Pennsylvania Board of Probation and Parole, 114 Pa.Cmwlth. 48 , 538 A.2d 595 (1988), and I do not construe the majority opinion as obviating this approach. Therefore, I believe that the Commonwealth Court and the Parole Board should continue to adhere to that approach.
NIX, C.J., joins this concurring opinion.
. This is my understanding of the majority’s holding, and with that I agree.