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CARL BEASLEY v. COMMONWEALTH PENNSYLVANIA (01/07/87)

decided: January 7, 1987.

CARL BEASLEY, 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 Carl Beasley, dated October 3, 1985.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief, Appellate Division, and Mitchell A. Kaufman, Appellate Counsel, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 103 Pa. Commw. Page 40]

Petitioner, Carl Beasley, seeks review of a decision of the Pennsylvania Board of Probation and Parole (Board) which denied petitioner's request for administrative relief. The request was for credit on backtime for time spent in an in-patient rehabilitation program.

Petitioner was convicted of theft on November 16, 1981, and was sentenced to a term of imprisonment of one to four years. He was paroled on November 8, 1983, to an in-patient drug treatment program at House of the Crossroads. Petitioner's attendance at this program was a special condition of his parole. He therefore had a choice of attending the program or remaining in prison. He remained at House of the Crossroads for the next ten months and ten days. At the end of this period he was offered a job at the House of the Crossroads. He declined and left.

The Board charged petitioner as a technical parole violator (1) for not maintaining contact with the parole supervision staff, (2) for moving without written permission of the parole supervision staff, and (3) for failing to notify the parole supervision staff of an arrest. In June 1985, petitioner pled guilty to the charge of receiving stolen property and possession of instruments of crime. The Board, in September 1985, ordered petitioner to be recommitted to serve the unexpired term of his original sentence as a technical and a convicted parole violator. In the recommitment, the Board computed

[ 103 Pa. Commw. Page 41]

    petitioner's unexpired sentence without giving him credit for the time spent at House of the Crossroads.

Petitioner's situation is almost identical to the situation in Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985). The Board, as in Cox, made no factual determination as to the nature of the House of the Crossroads and whether the restrictions on petitioner's liberty there were the equivalent of incarceration. The court in Cox recognized that each claim is to be evaluated on a case-by-case basis upon the record made before the Board.

Respondent argues that petitioner failed to sustain his burden of proof because he did not offer any evidence to show the restrictive nature of the House of the Crossroads program. In reviewing the record, this argument holds no weight.

As a practical matter, time credit questions are rarely raised at Pennsylvania Board of Probation and Parole violation hearings. Normally, the question of time credit becomes important after the Pennsylvania Board of Probation and Parole hands down a parole revocation order and is usually ...


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