Harden v. Pennsylvania Board of Probation & Parole

DISSENTING OPINION BY

Judge PELLEGRINI.

It is undisputed that Penn Pavilion is a Department of Corrections’ institution operated on its behalf under contract by a private party where prisoners and parolees are placed. Contrary to our ease law, the majority holds that Raymon Harden (Harden) is not entitled to any credit for time served on parole at Penn Pavilion because he was “at liberty on parole” as the restriction is not the “equivalent of incarceration” and no armed escort accompanied him when he left the facility. In so holding, the majority hollows out our Supreme Court’s decision in Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985), by suggesting that only the highest level of confinement is the “equivalent of incarceration,” thereby making it impossible for a parolee to receive any credit against his sentence for time spent in halfway houses. Harden is entitled to credit because he was placed at the same facility where prisoners are incarcerated and governed by the same restrictions, and he must be credited with that time because it necessarily is the “equivalent of incarceration.” For those reasons, I respectfully dissent.

I.

What is involved in this appeal is when a parolee is placed on probation subject to the condition that he enter a rehabilitation, treatment or a similar program, and has his probation revoked, whether the time spent in that restrictive environment should be credited against the parolee’s sentence. Credit has been granted by both our Supreme and Superior Courts which have found that a DUI offender in a private alcohol center that has a restrictive environment — where the offender is required to reside at the facility during the time he participates in the program and places some restriction on the offender’s freedom of movement-qualifies as “imprisonment” under 75 Pa.C.S. § 3804 (relating to penalties) and that time counts against the offender’s sentence. Commonwealth of Pennsylvania v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991); Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979) (alcohol rehabilitation); Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979) (alcohol rehabilitation); Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967) (mental institution).1

*703While those cases dealt with whether a prisoner’s time in a rehabilitation center counted as time “incarcerated,” what is before us is whether the time a parolee spends in a rehabilitation center is like a prisoner’s and is similarly counted against his sentence. Unlike prisoners who receive time while incarcerated, parolees receive credit for all time against their sentence when they are not “at liberty on parole.” The phrase “at liberty on parole” is contained in Section 21.1a(a) of what is commonly known as the Parole Act. Section 21.1a(a) authorizes the Board to recommit a parolee who, “during the period of parole ... commits any crime punishable by imprisonment, from which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter....” If the Board recommits a parolee as a convicted parole violator under this provision, he is required to serve the remaining term of imprisonment that he would have had to serve if he had not been paroled and is given no credit for time spent “at liberty on parole.” 61 P.S. § 331.21a(a).2

The Parole Act does not define the phrase “at liberty on parole.” However, in Cox, our Supreme Court explained that “at liberty on parole” means “not at liberty from all confinement but at liberty from confinement on the particular sentence for which the convict is being reentered as a parole violator.” Id., 507 Pa. at 618, 493 A.2d at 683 (1985) (quoting Haun v. Cavell, 190 Pa.Super. 346, 154 A.2d 257, 261 (1959)), cert. denied, 363 U.S. 855, 80 S.Ct. 1618, 4 L.Ed.2d 1737 (1960). It went on to explain that there is a need to determine whether “the restrictions on [parolee’s] liberty [at the rehabilitation center] were the equivalent of incarceration” entitling him to “credit for the time spent in the program.” Id., 507 Pa. at 620, 493 A.2d at 683.3 One thing that Cox, as well as our cases makes clear, is that it is irrelevant that a parolee is not charged with escape if he leaves the facility without permission. An escape can only be charged when a person is in custody or incarcerated, while the touchstone here is not whether the parolee is in custody but was not “at liberty on parole” because he was in a facility *704that was the “equivalent of incarceration,” not incarceration itself.

In making that determination, “[a] review of the relevant case law reveals that a determination whether a parolee is entitled to credit is very fact specific.” Meleski v. Pennsylvania Board of Probation and Parole, 931 A.2d 68, 71 (Pa.Cmwlth.2007). Just as in all fact specific findings, not one single finding is controlling — what you have to look at is the totality of the circumstances. Obviously, the danger in a “fact specific” approach is what facts the court considers important — in this case, what is the “equivalent of incarceration” is dependent upon the court’s knowledge or lack of knowledge of what is considered incarceration by the Department of Corrections.

II.

The facts in this case with which to compare to the facts found critical in other cases are as follows: Harden was paroled in April 2004,4 subject to a special condition that he successfully complete a residential drug and alcohol treatment program at Penn Pavilion. He entered that facility on October 18, 2004, and successfully completed the program on March 20, 2005, when he was released to home monitoring. Because Harden was later arrested, convicted and recommitted to another State Correctional Institution, relevant to this appeal is whether he is entitled to any credit on his maximum sentence date for his original sentence for any time he spent at Penn Pavilion. Penn Pavilion is a Department community corrections facility5 operated under contract with a private provider to provide comprehensive rehabilitative treatment to prepare non-violent male and female prisoners and parolees for employment and re-entry into the community, including substance abuse treatment. Conditions at this correctional facility, for both parolees and prisoners, are governed by the Department of Corrections Community Correction Center Resident Handbook.6

Regarding Harden’s time at Penn Pavilion, Marty Anderson, Penn Pavilion’s Chief of Programs, testified about the general program requirements, not about Harden’s time spent at the facility because Harden’s file had been purged. She testified that when a parolee arrived and began the in-patient phase of the program, he would have received one 12-hour pass to go home and collect items. He would not then be allowed to leave the facility during the in-patient program, but at the end of the program, he would have received a completion pass. If he went to any medical appointments while an in-patient, he would have a staff escort. Once the inpatient phase was over, he would then move over to the work release phase where he could leave the facility without an escort to look for work.

The Pennsylvania Board of Probation and Parole (Board), relying solely on the testimony from Marty Anderson, found that the time spent at Penn Pavilion should not be counted against Harden’s sentence because, “The offender could leave [the] Program at any time. The doors at ... the facility were not locked to prevent the offender from leaving and if the offender wished to leave staff would not restrain him, but allow him to leave. If he attempted to leave the facility, staff *705would not restrain him, but would allow him to leave. If he had left, he would not have been charged with escape, but violated [sic] a parole condition.” (Board Findings at 3.)

Adopting the Board’s position on the only issue that it raised,7 the majority affirms, because the “escorts” who accompanied Harden to his medical appointments during his first 45 days of his in-patient program were merely providing “transportation assistance” which were not the type of escorts who would restrain him in a prison-type setting. In doing so, it holds that unless a parolee has a “coercive escort” when he leaves a facility, he is still considered at liberty on parole even though subject to an otherwise restrictive environment. In doing so, the majority states that the residential facility has to follow a “prison paradigm” to determine whether the prisoner’s placement is the equivalent of incarceration stating that “the essentials of prison, as opposed to other institutional settings is the inability to walk away without having to unlock the door; without committing a crime, and without risking physical restraint,” implying that absent those factors, the parolee’s stay at a particular facility is not the equivalent of incarceration.

Nowhere in our case law or in Cox is there any suggestion that a parolee to receive credit for time spent in residential facilities that it has to be the equivalent of a regular prison. The majority knows full well that the Department of Corrections operates less restrictive facilities, such as the one at issue here, where the prisoners are not accompanied by an armed guard when they leave that residential correctional facility.

By doing so, the majority makes it impossible for a parolee to receive credit for any time spent in a rehabilitation center because none of those facilities have or even desire to impose those types of restrictions on both prisoners and parolees. Because the majority essentially reverses our decisions in the area and hollows out the Supreme Court’s decision in Cox, I dissent for the following reasons.8

III.

In accord with our existing cases, when a fact specific analysis is used, we typically compare and contrast what were deemed to be important factors in previous cases and apply them to the case at issue. After a number of cases are decided, the important factors involved in making the determination are “bracketed” so the bench and bar can then know with some certainty if it meets the legal standard at issue — in this case, what is the equivalent of incarceration. Two previous appeals were sent en banc to resolve what were the important factors that made a parolee’s stay at the *706facility the equivalent of incarceration. In those cases, one factor, though not the only factor that we have used to determine whether the stay was equivalent of incarceration, was that a parolee who cannot leave a facility without an escort remains “in custody” or, stated otherwise, is not “at liberty on parole.” Neither of those cases requires that a coercive escort is needed to establish that a prisoner is not at liberty on parole.

In Torres v. Pennsylvania Board of Probation and Parole, 861 A.2d 394 (Pa.Cmwlth.2004), an inmate was released on parole to a community corrections center/in-patient drug and alcohol rehabilitation facility where, for the first 45 days, he was allowed to leave only to attend drug and alcohol rehabilitation meetings where he was driven by staff. After the first 45 days, residents could leave unsupervised for work or recreation or other purposes but had to inform staff of their whereabouts and when they would return. The facility had no fence, no window bars, no restraining devices and no internally locked doors. We reversed the Board and gave credit to the parolee for the first 45 days of his stay, noting that “the mandatory escort during this initial period plainly was intended as a coercive security measure and not merely as transportation assistance.” Id., 861 A.2d at 400. We explained:

As the Supreme Court held in Cox, [not a case involving escorts] specific circumstances may constitute such restrictions on liberty as to require credit toward a sentence on recommitment. Although no formulation will apply to all potential individual circumstances, ... ordinary restrictions such as those that attend many inpatient treatment programs are not so onerous as to require a credit. The court holds otherwise, however, when the restrictions upon a parolee become such that they destroy any sense of being ‘at liberty on parole’ and, consequently, meet the Cox standard. Recognizing that courts must continue to examine the factual circumstances of each case, the Court nevertheless holds that a parolee who has been forbidden generally to leave a particular inpatient drug and alcohol rehabilitation facility for a specified period for which credit is sought, who is under 24-hour supervision during the specified period and who is not permitted to make required trips outside of the facility without an escort cannot reasonably be described as being ‘at liberty on parole.’

Id., 861 A.2d at 400-401. (Emphasis added.)

More recently, in Meleski, an inmate attempted to get credit for time he spent at Gaudenzia and Coleman where at each facility there was a 30-day blackout period where he could not contact anyone or use the phone. At Gaudenzia after the 30-day blackout period, for the next 60 days, he could use the phone, receive visitors and he could take walks once a week with a chaperone. We held that the parolee was entitled to credit for the time he spent at Gaudenzia and Coleman during the blackout period (60 days) when he could not leave the facility, and relative to this case, he was also entitled to the time he spent at Gaudenzia for the 60 days he had to have a chaperone to take walks. “These conditions were not appreciably different than those Meleski experienced in the first 30 days. Although he could leave the building for a walk with a chaperone once a week, this Court notes that Torres was also permitted to leave Conewago with an escort to go to required meetings. In fact, this Court stated in Torres that a parolee who is not permitted to make required trips outside of the facility without an escort cannot reasonably be described as *707being ‘at liberty on parole.’ ” 931 A.2d at 73.

As to whether those escorts were coercive, no person from Gaudenzia testified, and the parolee in Meleski was the only party who testified regarding the fact that he had to be accompanied wherever he went, either by staff or by a Level II resident when he left the facility. (Mele-ski RR at 40.) There was no evidence of a coercive escort. Moreover, the dissent in Meleski disagreed with the notion that a chaperone was even of any import, stating the following regarding the ability to walk away from the facility:

Furthermore, the fact that Meleski was “monitored” by staff, cameras, alarms, etc., while at Gandenzia is not significant in this analysis. In reality, monitoring of residents does nothing to prevent a parolee from walking away from a group home if he or she desires to do so. See Meehan v. Pennsylvania Board of Probation and Parole, 808 A.2d 313, 316-317 (Pa.Cmwlth.2002) (rejecting a direct violator’s claim that monitoring is the equivalent of incarceration). This fact points out an important distinction between “detecting” a departure, as would happen in Mele-ski’s case, and “preventing” a departure, as would happen in a prison environment.

Meleski, 931 A.2d at 75. (Emphasis added.) 9

What those cases show is that parolees do not have to be locked in, do not have to be subject to restraint if they attempt to leave and, as to the only issue raised here, that no coercive escort is required to find that the restrictions are the “equivalent of incarceration.” Accordingly, because the single reason the Board advances to sustain its position that a prisoner has to be coercively escorted has not been found to be a valid reason for not granting time on appeal, the Board abused its discretion when it found that Harden’s stay at Penn Pavilion in the in-patient program was not the “equivalent of incarceration.”

IV.

With much understanding and no criticism, in appeals involving the question of what is the equivalent of incarceration, we do not always have a full and complete record of the level of incarceration and the nature of the program involved. Oftentimes, neither the Board nor the parolee is represented by counsel. In other instances, the parties do not place facts on the record because they are familiar with the penal system and just assume the courts have the same knowledge that they do. Moreover, when presenting their cases, the parties attempt to compare and contrast with our cases by examining whether and how prisoners could or could not leave the facility, if they could leave, and could they leave without an escort in attempting to convince the Board and us that the parolee’s stay at a facility was the “equivalent of incarceration.” That leaves us with the false impression that the comparing and contrasting facts of what is the equivalent of incarceration is that we compare the rehabilitation facility to a full-blown “prison paradigm.” What has never been fully presented to us is a description of the other types of correction facilities operated by the Department of Corrections that are much less restrictive where prisoners are incarcerated prior to their release for which they receive credit for time served because they were incarcerated where *708they can leave without having to unlock a door or fear of physical restraint.

More specifically, what has not been squarely presented to us is that one type of correctional — incarcerating—institution that the Department operates — community correction centers and facilities. At oral argument, it was conceded that the facilities that are at issue here were just those types of facilities. Residents of those facilities are prisoners transitioning from state correctional institutions back into the community or parolees who have been released but are sent to such a facility for treatment or are sent back to a halfway program because they are experiencing difficulties maintaining parole.

Like private prisons, community correction centers are operated directly by the Department and community correction facilities are operated under contract with private agencies to supplement the state centers. Both house prisoners and parolees, provide housing, meals, employment, counseling and/or treatment services to approximately 3,000 offenders statewide. Treatment programs may include Alcohol and Other Drug (AOD), Sex Offender and Mental Health.10 Prisoners or parolees, if accepted into one of these centers, must abide by the same strict guidelines contained in a resident handbook. Under those guidelines, among other things, inmates incarcerated in those facilities are expected to secure employment, education or vocational training. State prisoners can work outside of the pre-release center during the day and the inmate may leave the institution for a period without supervision by the Department of Corrections. A furlough, though, cannot exceed seven days. All the time spent in a pre-release center counts against a prisoner’s sentence.

Because prisoners and parolees are subject to the same level of confinement and the same rules, and prisoners are given credit for time spent in these facilities, it would be irrational to hold that a stay at the facility is not the “equivalent of incarceration” when the Department of Corrections has determined that it is incarceration.

V.

Accordingly, not only would I give credit for Harden’s in-patient stay at Penn Pavilion based on the record before us, to forestall an ineffective assistance of counsel claim,11 I would remand the matter to the Board to determine whether Renewal and Penn Pavilion was a community correction center or facility and, if so, credit Harden all the time spent at those institutions to the same extent that a prisoner would receive credit who was incarcerated at the same location.

For the reasons above, I respectfully dissent.

Judges McGINLEY and BUTLER join in this dissenting opinion.

. Many other jurisdictions permit credit for time spent in a halfway house. Whether credit is received for time a parolee spends in a halfway house is dependent on the particular statutes involved. Most cases involve a discussion of what is "custody” for the purpose of their sentencing statute. These jurisdictions have adopted the view that credit is required as participation in the rehabilitation program or treatment program and is the equivalent of being in "custody” or "jail.” That is the approach Pennsylvania courts have taken in the above cases when they have found that a person in one of those centers is "incarcerated.” See also Lock v. State, 609 P.2d 539 (Alaska 1980); People v. Rodgers, 79 Cal.App.3d 26 (1978); People v. Stange, 91 Mich.App. 596, 283 N.W.2d 806 (1979); People v. Kitsmiller, 74 P.3d 376 (Colo.Ct.App.2002); State v. Hearst, 356 N.C. 132, 567 S.E.2d 124 (2002). Of course, prisoners are subject to escape because they are in custody. *703The question is not whether a parolee is in custody but whether he is not at liberty on parole because he is in a facility that is the “equivalent of incarceration.’' The majority fails to recognize that distinction.

. 61 P.S. § 331.21a(a) provides:

(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole. The board may, in its discretion, reparole whenever, in its opinion, the best interests of the prisoner justify or require his release on parole and it does not appear that the interests of the Commonwealth will be injured thereby. The period of time for which the parole violator is required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator.

. Justice Papadakos dissented, stating that “[t]his interpretation, however, ignores the plain meaning of Section 21.1 of the Parole Act, and renders the words “at liberty” as superfluous. For if the Legislature had intended this meaning, it would simply have stated that a recommitted parole violator shall be given no credit for the time.” Id., 493 A.2d at 684.

. Harden was originally convicted for selling drugs and sentenced in April 2002 to serve three to 10 years.

. Available at: http://www.cor.state.pa.us/ccc/ cwp/view.asp?A=387&Q = 131099.

.Available at: http://www.cor.state.pa.us/ccc/ lib/ccc/Resident_Handbook_2008.pdf.

. The Board stated “Counterstatement of the Question Involved” as:

According to Meleski, where a recommitted direct violator does not prove that there was a time during which he was subject to the rule that he could not leave a group home without a mandatory coercive security escort, does the Board Act arbitrarily or plainly abuse its discretion by finding that he did not prove that the group home was “a prison equivalent?”

. Unlike appeals from parole revocation hearings, 2 Pa.C.S. § 101, appeals as to whether a parolee properly receives credit for time against his sentence is an appeal governed by the Administrative Agency Law. 2 Pa.C.S. § 503. Our scope of review is limited to determining “whether the Board's findings are supported by substantial evidence, are in accordance with the law and whether constitutional rights have been violated.” Meleski. Just like in any other administrative appeal, courts should not "interfere with the Board's determination of that issue unless it acts arbitrarily and plainly abuses its discretion.” Cox, 507 Pa. at 620, 493 A.2d at 683.

. The only time the majority discusses Meleski is in footnote 9 where it said that the critical factor was that the parolee could not leave the 7th floor except for meals. The Meleski dissent belies that comment.

. Available at: http://www.cor.state.pa.us/ ccc/hb/ccc/ContractingwithBCC.pdf.

. For counsel to be ineffective, counsel’s errors must be so serious that he was not acting as "counsel” guaranteed by law and his deficient performance was so serious that there is a reasonable probability that, but for his errors, the result of the revocation proceeding would have been different. Adams v. Pennsylvania Board of Probation and Parole, 885 A.2d 1121 (Pa.Cmwlth.2005).