IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antonio J. Rivera, :
Petitioner :
:
v. : No. 1539 C.D. 2019
: Submitted: June 19, 2020
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: September 9, 2020
Antonio J. Rivera petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board)1 denying his challenge
to the maximum sentence date calculated by the Parole Board after his
recommitment as a convicted parole violator. On appeal, Rivera argues that he is
entitled to an evidentiary hearing to establish that he is entitled to credit towards his
original sentence for the time he spent in a federal prison and for the time he spent
in a residential treatment program, which was the functional equivalent of
incarceration. For the reasons that follow, we affirm in part, and vacate and remand
in part.
On February 25, 2014, Rivera was convicted on drug charges and
sentenced by the Lancaster County Court of Common Pleas to a term of two years
1
Following the filing of the petition for review, the Pennsylvania Board of Probation and Parole
was renamed the Pennsylvania Parole Board. See Sections 15 and 16.1 of the Act of December
18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and 6111(a) of
the Prisons and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a).
and three months to six years. His minimum sentence date was October 25, 2015,
and his maximum sentence date was July 25, 2019.
On October 28, 2015, Rivera was constructively paroled from his
original sentence to begin serving a detainer sentence at the Federal Correctional
Institution at Schuylkill. Constructive parole occurs when a prisoner is paroled from
his original sentence to begin serving a new sentence. See Merritt v. Pennsylvania
Board of Probation and Parole, 574 A.2d 597, 598 n.1 (Pa. 1990). On July 28,
2016, Rivera was released from federal prison to Kintock, a residential drug
treatment program. On September 9, 2016, Rivera left Kintock, with approval, to
reside with his grandmother.
On May 2, 2018, Rivera was arrested on new drug charges. On May 3,
2018, Rivera was formally charged. Because Rivera did not post bail, he remained
incarcerated on the new criminal charges.
Subsequently, on May 24, 2019, Rivera was convicted of conspiracy to
deliver a controlled substance. On August 2, 2019, he was sentenced to six to 30
years, concurrent with any state or federal sentence he was then serving.
On August 26, 2019, the Parole Board recommitted Rivera as a
convicted parole violator. In doing so, the Parole Board gave Rivera credit for the
one day he was incarcerated solely on its warrant, i.e., May 2, 2018. Otherwise, he
received no credit for his time at liberty on parole, i.e., street time. His maximum
sentence date was recalculated to be April 28, 2023.
Rivera filed a petition for administrative review with the Parole Board,
asserting that he was entitled to credit on his original sentence for the time he was
incarcerated on the federal detainer (October 28, 2015, to July 28, 2016) and credit
for the time he was a resident at Kintock (July 29, 2016, to September 9, 2016). On
2
October 15, 2019, the Parole Board denied his request for administrative relief
without a hearing.
On appeal,2 Rivera argues that the Parole Board was obligated to
provide him a hearing so that he can establish that he is entitled to credit for the time
he spent on parole at a federal prison and as a resident at Kintock. The Parole Board
responds that Rivera is not entitled to credit for the period of time he was on
constructive parole from his original sentence even though he was incarcerated
during that time. With regard to Rivera’s time at Kintock, the Parole Board concedes
that Rivera is entitled to an evidentiary hearing to determine whether conditions in
the facility were the functional equivalent of incarceration.
Where a parolee has been constructively paroled, Pennsylvania courts
have explained that “he is nonetheless ‘at liberty’ from the original sentence[.]”
Bowman v. Pennsylvania Board of Probation and Parole, 709 A.2d 945, 948 (Pa.
Cmwlth. 1998). If the parolee is subsequently recommitted as a convicted parole
violator, his time on constructive parole is treated as any other period of street time.
In Merritt v. Pennsylvania Board of Probation and Parole, 539 A.2d
511 (Pa. Cmwlth. 1988), affirmed, 574 A.2d 597 (Pa. 1990), this Court considered
whether a parolee is entitled to credit for time spent serving a concurrent sentence
while constructively paroled from the original sentence. In Merritt, the parolee was
concurrently serving an original sentence and two subsequent sentences. After the
parolee was constructively paroled from his original sentence, he began serving the
remaining sentences to their minimum term. He was then paroled but later
2
This Court’s review determines whether the Parole Board’s adjudication is supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
3
recommitted as a convicted parole violator. The Parole Board denied him credit on
his original sentence for the period of time that he was constructively paroled
therefrom and serving his two concurrent sentences.
On appeal, this Court affirmed the Parole Board. We explained that the
fact that the parolee’s sentences were concurrent did not entitle him to credit towards
his original sentence, from which he had been constructively paroled. The
Pennsylvania Supreme Court affirmed, stating that, “one who is on constructive
parole is at liberty on parole on that particular sentence, and is not entitled to credit
against his original sentence for time spent on constructive parole.” Merritt, 574
A.2d at 598.
Merritt teaches that when calculating a convicted parole violator’s
maximum date of sentence, “only time spent in custody serving that sentence is
considered time served.” Spruill v. Pennsylvania Board of Probation and Parole
(Pa. Cmwlth., No. 1478 C.D. 2016, filed April 7, 2017), slip op. at 6 (unreported)
(emphasis added).3 Therein, we explained:
One cannot “equate time served on parole with time served in an
institution. Mere lapse of time without imprisonment … does
not constitute service of sentence…. It does not set aside or
affect the sentence.” Young v. Pennsylvania Board of Probation
and Parole, 409 A.2d 843, 846-47 (Pa. 1979) (internal quotations
and citations omitted). As a result, a convicted parole violator is
not entitled to credit for time spent on constructive parole from
his sentence while continuing to serve another concurrent
sentence because he is not serving the time on his sentence from
which he was paroled.
3
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
4
Spruill, slip op. at 6. Thus, in Spruill, this Court held that the parolee was not entitled
to credit towards his original sentence, from which he was constructively paroled,
albeit still incarcerated. This is because the parolee “could not serve his state
sentence while simultaneously being at liberty from it, his time served under the
federal detainer cannot be credited towards that state sentence.” Id.
Rivera seeks an evidentiary hearing to determine whether he should be
awarded credit for the time he was constructively paroled from his original sentence
and in federal custody. A parolee on constructive parole is “at liberty on parole.”
Merritt, 574 A.2d at 598. Although Rivera remained incarcerated while on
constructive parole, the incarceration involved another matter unrelated to his
original sentence. Thus, Rivera is not entitled to credit on his original sentence for
the time he served under the federal detainer, and we will affirm this part of the
Parole Board’s adjudication.
Rivera also challenges the Parole Board’s refusal to credit his time
spent at Kintock. He claims that he is entitled to an evidentiary hearing to establish
that the Kintock program was the functional equivalent of incarceration, entitling
him to credit towards his original sentence for his time at the facility. The law is
well-settled that a parolee may be entitled to backtime credit for time spent in a
residential facility where the inmate demonstrates that the residential facility’s
characteristics are equivalent to incarceration. Cox v. Board of Probation and
Parole, 493 A.2d 680 (Pa. 1985); Harden v. Pennsylvania Board of Probation and
Parole, 980 A.2d 691 (Pa. Cmwlth. 2009). Because the Board did not hold a hearing,
this Court lacks the record evidence needed to evaluate the custodial nature of
Kintock. The Parole Board acknowledges that Rivera raised the issue of time spent
at Kintock and that he may be entitled to credit for that period. The Parole Board
5
requests that this Court remand the matter so that it can conduct a hearing on this
matter, and we will grant the request for remand.
Accordingly, we vacate the Parole Board’s adjudication denying Rivera
credit for time spent at Kintock and remand this matter to the Parole Board for a
factual finding on the custodial nature of Kintock. We affirm the remainder of the
adjudication.
MARY HANNAH LEAVITT, President Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antonio J. Rivera, :
Petitioner :
:
v. : No. 1539 C.D. 2019
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 9th day of September, 2020, the Pennsylvania Board
of Probation and Parole’s (Parole Board) adjudication, dated October 15, 2019, is
VACATED, in part, and this matter is REMANDED to the Parole Board for
proceedings to make a factual determination as to the nature of Kintock’s program,
and whether the restrictions on Antonio J. Rivera’s liberty there were the equivalent
of incarceration thereby entitling him to credit for his time spent in the program. The
remainder of the Parole Board’s adjudication is AFFIRMED.
Jurisdiction relinquished.
MARY HANNAH LEAVITT, President Judge