IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard Thomas, : Petitioner : : No C.D v. : : Submitted: March 2, 2012 Pennsylvania Board of Probation : and Parole, : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: April 13, 2012 Richard Thomas (Thomas) petitions for review from an order of the Pennsylvania Board of Probation and Parole (Board) that denied his request for administrative relief. Specifically, Thomas sought credit toward his sentence for the time he resided at two privately owned community corrections facilities, and for the time he served awaiting trial on subsequent charges. Upon review, we affirm in part, and vacate and remand in part. In 2005, as a result of pleading guilty to several robbery charges, Thomas was sentenced to two-and-a-half to six years of incarceration in a state facility. Thereafter, in 2007, the Board paroled Thomas. As a condition of parole, Thomas was required to participate in an approved residential drug and alcohol treatment program.

2 In due course, Thomas began his residence at the Gateway Braddock facility (Gateway Braddock). During that time, Thomas completed the initial 45- day in-patient treatment phase of the program. After completing the initial stage, Thomas was transferred to the work-release phase of his residency. Thomas promptly absconded, but turned himself in the next day. Instead of reincarceration, the Board permitted Thomas to enroll in a residential treatment program at Penn Pavilion (Penn Pavilion). Upon moving to Penn Pavilion, Thomas again began an initial 45 days of in-patient treatment. After Thomas completed that phase of the program, he remained at Penn Pavilion for another 45 days, after which his entire program was complete. After completing his residential treatment program in 2008, Thomas was arrested for driving under the influence and drug related charges. Thomas posted bail on these 2008 charges, and he remained in custody as a technical parole violator pursuant to a Board detainer. While in custody, in January 2009, Thomas was charged with additional crimes in Allegheny County. In June 2009, he pled guilty to both the 2008 charges and the 2009 charges, and he was sentenced to a term of incarceration in a county facility. In addition, the Board issued a revocation decision recommitting Thomas as a convicted and technical parole violator. At that time, the Board 2

3 recalculated the maximum expiration date of Thomas s original sentence. The Board s recalculation did not reduce Thomas s original sentence by any of the time he resided at either Gateway Braddock or Penn Pavilion, or as a result of the time he spent in custody after his January 2009 arrest while awaiting trial. Thereafter, Thomas appealed, and a Cox hearing ensued. 1 Before a hearing examiner, Thomas contended he was entitled to credit for the time he spent in the initial 45-day in-patient treatment phases of the programs at both Gateway Braddock and Penn Pavilion pursuant to Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985). In support of his claim, Thomas presented the testimony of Riechelle Griffith (Gateway Braddock Employee), a custody control coordinator for Gateway Braddock, and he testified on his own behalf. In response, the Board presented the testimony of Parole Supervisor Patricia Valauri, Doug McClinton (Penn Pavilion Employee), Penn Pavilion s chief of operations, and additional testimony from the Gateway Braddock Employee. Thereafter, the hearing examiner determined the specific characteristics of the programs at Gateway Braddock and Penn Pavilion were not equivalent to incarceration. The hearing examiner considered the facilities more akin to drug and alcohol treatment programs than to state correctional institutions. 1 See Cox v. Pa. Bd. of Prob. & Parole, 507 Pa. 614, 493 A.2d 680 (1985) (where a recommitted parole violator alleges that his participation in an inpatient drug treatment program, at which he resided as a condition of parole, constituted the equivalent of prison incarceration, the Board must hold an evidentiary hearing to provide the parole violator an opportunity to show that the restrictions on his liberties were sufficient to warrant backtime credit for time spent in the program). 3

4 Thus, he concluded Thomas was not entitled to credit for the time he participated in the 45-day in-patient treatment phase of the programs. Thereafter, the Board issued its determination adopting the hearing examiner s findings and conclusions, and denying Thomas s appeal. Thomas filed a petition for administrative review, contending the Board did not properly credit his original sentence for the time he spent in custody awaiting disposition of his January 2009 charges, and that the Board s Cox hearing findings were in error. The Secretary of the Board affirmed the recalculation order rejecting both of Thomas s arguments. Thomas petitions for review. On appeal, 2 Thomas asserts he should receive credit for the 45 days he lived in in-patient treatment at Gateway Braddock, and another 45 days of credit for the time he participated in subsequent in-patient treatment at Penn Pavilion. Additionally, Thomas argues the Board erred in not crediting him with all of time he was in custody between his January 2009 arrest and the effective date of his sentence on those charges. The Board responds that Thomas s own evidence, in addition to the evidence it presented, establishes that neither in-patient treatment phase of the 2 Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). Moreover, we will not interfere with the Board s determination of whether a program is a prison equivalent unless the Board acted arbitrarily or plainly abused its discretion. Cox. 4

5 programs was equivalent to prison incarceration. Furthermore, the Board contends Thomas s sentence is correct with regard to his 2009 arrest and sentence because he did not post bail, and remained in custody on those charges. Section 6138(a)(2) of the Prisons and Parole Code (Parole Code), which governs the revocation of parole and the subsequent computation of a convicted parole violator s remaining sentence, states no credit shall be given for the time at liberty on parole. (emphasis added). In interpreting the prior version of the Section 6138(a)(2) of the Parole Code, 3 our Supreme Court defines the phase at liberty on parole, to mean not at liberty from all confinement but at liberty from confinement on the particular sentence for which the convict is being re-entered as a parole violator. Cox, 507 Pa. at 614, 493 A.2d at 683. As such, at liberty on parole is not equivalent to free or street time. Harden v. Pa. Bd. of Prob. & Parole, 980 A.2d 691 (Pa. Cmwlth. 2009) (en banc). While a parolee faces a heavy burden to rebut the presumption against granting credit for time spent at a residential treatment facility, a parolee may establish entitlement to credit where he demonstrates the facility s program constituted prison equivalent restrictions on his liberty. Cox; Harden. The determination of whether a treatment facility is prison like, and sufficiently restrictive is a fact-specific question that must be reviewed on a case-by-case basis. 3 In Cox, our Supreme Court interpreted the former Section 21.1(a) of the act commonly known as the Parole Act, Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, formerly 61 P.S a(a), which was repealed and replaced by substantially similar language by the Act of August 11, 2009, P.L. 147, No. 33, as codified 61 Pa.C.S. 6138(a)(2). 5

6 Harden. The most important factors in determining whether credit is warranted for the time a parolee resides at an in-patient rehabilitation facility is whether the parolee is locked in, and whether he may leave without being physically restrained. Detar v. Pa. Bd. of Prob. & Parole, 890 A.2d 27 (Pa. Cmwlth. 2006). Here, both of the privately operated facilities, Gateway Braddock and Penn Pavilion, were physically unlike prisons. See Harden. The facilities were not fenced in, the doors to the residential building were not locked from the outside, and neither had guards to physically restrain parolees from absconding. Certified Record (C.R.) at 32, 133, 108. Furthermore, the staffs at both facilities were instructed never to physically restrain parolees who wished to leave. C.R. at 34. Moreover, absconding parolees were not criminally charged with escape. C.R. at 34, 136. Therefore, the facilities were not prison like, and residence at one was not equivalent to incarceration. See Harden. However, during the 45-day inpatient programs, Thomas was subject to a more restrictive level of supervision. C.R. 74; see Torres v. Pa. Bd. of Prob. & Parole, 861 A.2d 394 (Pa. Cmwlth. 2004) (en banc) (recognizing a common distinction between the initial treatment period, i.e., the black-out period and the remaining time spent at the facility based on the additional restrictions imposed during that initial period). Thus, the next and more critical question is whether the 45-day treatment programs imposed additional restrictions sufficient to constitute prison like restrictions on his liberties. 6

7 Thomas described the initial 45 days at Gateway Braddock and Penn Pavilion in very similar terms. Specifically, he described each as having a structured daily schedule entirely confined within the facility. C.R. at 62-63, 127. Furthermore, Thomas stated he was subject to a pat down and metal detectors any time he entered the buildings, and multiple head counts throughout the day. C.R. at 62, 125. However, Thomas also testified each facility allowed him to go to the store or receive off-site medical treatment with the supervision of a facility employee. C.R. at 59-60, 124. The Gateway Braddock Employee and the Penn Pavilion Employee corroborated Thomas s pertinent testimony. C.R. at Upon review, Thomas did not prove his initial 45 days of in-patient treatment at either residential facility were equivalent to incarceration. See Willis v. Pa. Bd. of Prob. & Parole, 842 A.2d 490 (Pa. Cmwlth. 2004). Notably, the facilities mere imposition of rigid schedules does not transform the treatment facilities into prison equivalents. See Harden. As the facilities employees explained, the purpose of strict security and scheduling is not to confine the residents, but to provide the opportunity for the best possible treatment, and to keep contraband out of the facilities. C.R. at , Additionally, while the use of an armed escort would be probative evidence of prison-like conditions, an escort who functions to facilitate a parolee s transportation needs certainly is not. See Harden. Here, not only were the escorts not armed guards, but at Gateway Braddock, the escorts often oversaw groups of residents during off-site trips for errands or medical treatments. C.R. at 61. Moreover, unlike the parolee in Torres, Thomas was free at any time to walk away 7

8 during either 45-day period of in-patient treatment without unlocking a door, or risking physical restraint. See Jackson v. Pa. Bd. of Prob. & Parole, 568 A.2d 1004 (Pa. Cmwlth. 1990) (facility simply notifying the Board if a parolee absconds is not prison-like confinement). Furthermore, this Court previously considered the 45-day in-patient phase of the program at Penn Pavilion and determined it was not sufficiently restrictive to warrant granting a parolee credit for his time spent in that program. Harden. Similarly, in Detar and Willis, we examined another Gateway facility, which was factually similar to Gateway Braddock, and we concluded the initial 45 days of in-patient treatment were not sufficiently restrictive to be considered a prison equivalent. Because Thomas presented no evidence beyond what this Court considered in Harden, Detar and Willis, the Board did not abuse its discretion in denying Thomas credit for the 90 days he spent in in-patient treatment at Gateway Braddock and Penn Pavilion. As such, we reject Thomas s argument. Thomas also contends the Board erred in re-computing his maximum sentence date because it did not credit his original sentence with the time he spent in custody between his January 2009 arrest and the disposition of those charges pursuant to Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). 4 Factually, Thomas claims he posted bail on all of his 4 In Gaito, our Supreme Court held that where a parole violator is arrested on new criminal charges and satisfies the requirements for bail on those charges, and is thereafter held solely on a Board detainer, the time spent in custody shall be credited against his original sentence. However, if a parole violator does not satisfy his bail requirements, any time spent in custody is credited to any resulting new sentence. Id. 8

9 pending criminal charges and was held solely on a Board detainer at that time. As such, he asserts the right to credit for the time he spent in custody, from January 21 to June 30, 2009, against his original sentence. It does not appear that the Board considered this issue. C.R. at On appeal, the Secretary also denied relief. C.R. at 264. Specifically, the Secretary concluded there was no indication that [Thomas] posted bail from the criminal charges and you did not claim that he posted bail in your appeal. C.R. at 264. Despite a thorough review of the certified record, 5 we cannot conduct effective appellate review of this issue. Notably, Thomas s initial appeal, to which the Secretary referred when she considered this issue waived, is absent from the certified record. Moreover, the certified record does not establish whether Thomas in fact posted bail on his January charges. Thus, we remand for the Board to determine whether Thomas is entitled to credit pursuant to Gaito, and to develop a sufficient record for appellate review of this issue. 5 When reviewing matters as an appellate body, this Court is bound by the facts certified in the record on appeal. Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400 (Pa. Cmwlth. 2010); Cambria Cnty. Mental Health/Mental Retardation v. State Civil Serv. Comm n, 756 A.2d 103 (Pa. Cmwlth. 2000). Appended to his brief, Thomas included what appears to be his September 2010 administrative appeal. Additionally, Thomas includes criminal docket sheets related to his 2008 and 2009 arrests. The documents appended to Thomas s brief tend to establish that: 1) Thomas raised the issue of credit for this time in his appeal to the Board, but he did not assert he posted bail on the 2009 charges; and 2) Thomas did not post bail on the 2009 charges. Nevertheless, because these documents were not made part of the certified record, we cannot consider them at this time. 9

10 Accordingly, we affirm in part, and vacate and remand in part for proceedings consistent with this opinion. ROBERT SIMPSON, Judge 10

11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard Thomas, : Petitioner : : No C.D v. : : Pennsylvania Board of Probation : and Parole, : Respondent : O R D E R AND NOW, this 13 th day of April, 2012, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED, in part, and VACATED and REMANDED, in part, for proceedings consistent with the foregoing opinion. Jurisdiction is relinquished. ROBERT SIMPSON, Judge

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