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JAMES COX v. COMMONWEALTH PENNSYLVANIA (11/02/83)

decided: November 2, 1983.

JAMES COX, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



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.

COUNSEL

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 ...


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