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decided: November 2, 1983.


Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of James Cox v. Pennsylvania Board of Probation and Parole, dated December 3, 1982.


Timothy P. Wile, Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 78 Pa. Commw. Page 184]

Petitioner appeals the decision of the Pennsylvania Board of Probation and Parole (Board) which ordered the Petitioner recommitted as a convicted and technical parole violator.

In 1976 Petitioner was paroled from the State Correctional Institution at Graterford upon the condition that he be admitted to the in-patient drug rehabilitation program at the Eagleville Hospital. Upon successful completion of the program Petitioner was released, and while still on parole, committed two new offenses for which he was subsequently sentenced. The Board conducted parole violation and revocation hearings and recommitted Petitioner to serve his unexpired term, while extending the term's maximum expiration date.

In his Amended Petition for Review,*fn1 Petitioner argues that the Board incorrectly calculated his term's maximum expiration date by failing to give him credit for the time spent as a patient at Eagleville Hospital.

[ 78 Pa. Commw. Page 185]

When a parolee is recommitted as a convicted parole violator, he is required to serve the remainder of his unexpired term, and "shall be given no credit for the time at liberty on parole."*fn2 Although Petitioner was on parole while a patient at the Eagleville Hospital, he argues that he was not at liberty on parole because of the restrictive nature of the hospital program. Therefore he argues that he can be given credit for the time spent at the hospital.

The term "at liberty on parole" refers to that period during which the parolee is free from confinement on the sentence imposed. Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980). While all forms of parole involve some restraint on the parolee's liberty,*fn3 only those periods of actual incarceration while on parole can receive credit upon recommittal. See Jones v. Pennsylvania Board of Probation and Parole, 44 Pa. Commonwealth Ct. 610, 404 A.2d 755 (1979).

Petitioner's participation in the Eagleville Hospital drug rehabilitation program as a condition of parole, while certainly a restraint on his liberty, was clearly not a form of incarceration. Petitioner concedes that the hospital had no guards, fences, or other features which would confine patients against their will. Had Petitioner attempted to leave the hospital, it is apparent that no physical force would have been used against him. Petitioner contends that leaving the hospital was in violation of his parole and would have resulted in his immediate arrest. Yet, such a result is no different than that which would occur

[ 78 Pa. Commw. Page 186]

    upon the violation of any condition of parole. The mere threat of arrest upon the violation of a condition of parole does not constitute confinement.

Petitioner's reliance upon Commonwealth v. Jones, 211 Pa. Superior Ct. 366, 236 A.2d 834 (1967) is misplaced. In Jones, the appellant was committed to a state mental hospital while awaiting trial pursuant to Section 408 of the Mental Health and Mental Retardation Act of 1966.*fn4 On his release from the hospital, he was returned to the court, where he pled guilty and was sentenced. The Superior Court held that the appellant must be given credit on his sentence for the time spent in the mental hospital under a statute which required credit to be given for time spent, "in custody" prior to sentencing.*fn5

The Jones case is clearly distinguishable. Unlike Jones, the present Petitioner was not under a court-ordered commitment to a hospital, nor was he under detention awaiting a return for further court proceedings.*fn6 Rather, Petitioner's presence at the drug rehabilitation program was voluntary, the result of his acceptance of a condition of parole. The hospital program did nothing to physically confine Petitioner and was not responsible for his legal detention. The procedure of court-ordered confinement and custody present in the Jones case is distinguishable from the

[ 78 Pa. Commw. Page 187]

    present parole situation, and the Jones holding is therefore inapplicable.*fn7

We conclude, therefore, that Petitioner is not entitled to credit for the time spent at Eagleville Hospital as a condition of parole, and accordingly, affirm the decision of the Board.


Now, November 2, 1983, the determination of the Pennsylvania Board of Probation and Parole in the above referenced matter, dated December 3, 1982, is hereby affirmed.



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