Section 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 of maximum 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

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).

Notation

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).