The opinion of the court was delivered by: Judge Leavitt
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Raymon Harden petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) that declined to revise the maximum sentence date it calculated for Harden after he was recommitted as a convicted parole violator. Harden contends that the Board abused its discretion by refusing to give him credit for the time he spent in two residential programs while on parole. The Board concluded that Harden's evidence did not overcome the presumption that his attendance in each residential program was time "at liberty on parole." Concluding that the Board did not plainly abuse its discretion in reaching this conclusion, we affirm.
The background to this case follows. In April 2002, Harden was sentenced to serve three to ten years for a drug sales conviction and was sent to the State Correctional Institution at Coal Township (SCI-Coal). On April 18, 2004, Harden was paroled, subject to a special condition that he successfully complete a residential drug and alcohol treatment program at Penn Pavilion. Certified Record at 3, 4 (C.R. ___). Harden did not appeal this condition. Harden entered Penn Pavilion on October 18, 2004, where he stayed until March 22, 2005, successfully completing the program. He was then released to home monitoring. However, Harden removed the electronic monitoring device, thereby violating his parole. As a result, Harden's April 2004 parole order was amended to add a new special condition. State's Exhibit 2; C.R. 70. Under this new condition, Harden entered a "Halfway Back Program" at Renewal, a facility in Pittsburgh, where he resided from June 21, 2005, to October 13, 2005. Again, Harden successfully completed the program.
On September 27, 2006, Harden was arrested. Thereafter, he was convicted and sentenced to thirty days of imprisonment. On May 2, 2007, the Board recommitted Harden as a convicted parole violator and recalculated Harden's maximum sentence date for his 2002 drug sales conviction. Harden appealed, arguing that the Board should have credited the time he spent at Penn Pavilion from October 18, 2004, through March 22, 2005, and at Renewal from June 21, 2005, through October 13, 2005, towards his 2002 sentence.
The Board conducted an evidentiary hearing at SCI-Coal, where Harden was serving his 2002 sentence. The purpose of this hearing was "to determine the custodial nature of the inpatient programs at Penn Pavilion . and Renewal." Hearing Notice, C.R. 17. The hearing examiner divided the proceeding into two parts: one addressing conditions at Penn Pavilion and the other addressing conditions at Renewal.
With respect to Penn Pavilion, Harden testified that he was not allowed to leave the building during the first 90 days for any reason. On further examination by his counsel, however, Harden stated that he was permitted to leave the facility "two or three times" for medical treatment during the first 90 days, accompanied by a staff member. Notes of Testimony 10/22/07 at 8 (N.T. ___). Harden then testified that at different points during the first 90-day period, he was allowed to leave the facility unescorted for personal errands and medical treatment; however, Harden could not recall when these trips occurred. Harden stated that after the initial 90-day period, he was allowed to make home visits; however, he explained that he had to "call in and let them know where I was or turn myself in." N.T. 12. He stated that otherwise "I would be considered escaped from the program and they would notify parole or what have you." Id. Harden also testified the ground floor doors and windows at Penn Pavilion were locked and alarmed, which would have alerted the staff that someone was "leaving the building without permission." N.T. 14. Harden's days at Penn Pavilion were structured in that he ate meals at regularly scheduled times and was required to attend treatment programs at specified times. Finally, Harden testified that he was "court ordered into th[e] program." N.T. 15.*fn2
Martie Anderson, Chief of Programs at Penn Pavilion, testified for the Board. She explained that there is no fence around the building; residents are not locked in; doors are locked to prevent intruders from entering the building; and no staff member would ever attempt to restrain a client from leaving the facility. Anderson testified that Harden participated in two programs at Penn Pavilion: the inpatient program and the work release program. Anderson testified about the general practices at Penn Pavilion because Harden's individual records had, for the most part, been purged. She explained that the standard inpatient program runs for approximately 45 days, and it is followed by the work release program for those inpatients that have not yet had a home plan approved. Those enrolled in either program may leave the facility for "authorized work or leisure activities." N.T. 18. Those on work release come and go from the facility while they work, look for work or look for a place to live. Inpatients are allowed to leave the facility at the beginning and end of the program to conduct whatever personal business they wish, including family visits. When inpatients leave Penn Pavilion to attend medical appointments, they are escorted by staff who provide transportation assistance. Inpatients are allowed outside on the grounds of the facility, where a staff member is present. Anderson testified that Harden entered the inpatient program on October 19, 2004, and completed it on December 3, 2004, at which point he entered the work release program for the duration of his stay. Anderson stated that those who attempt to leave the Penn Pavilion facility are not charged with escape.
With regard to Renewal, Harden testified that upon admission, he was not permitted to do anything for the first 72 hours until he met with his counselor to set up his schedule. Once his schedule was established, he was allowed to come and go from the facility. Harden stated that the doors were locked and alarmed to keep people from leaving. Harden also testified that he was required to take a breathalyzer upon returning to the facility; to submit to random urine samples; and to participate in community service. Harden performed his community service both in the Renewal building and at the YMCA directly across the street.
Morris Richardson, one of the directors of Renewal, then testified. He stated that there is no fence around the facility; residents are not locked in; doors are locked on the outside to prevent unauthorized people from entering; and the staff does nothing to restrain people from leaving the facility. He testified that Harden left the facility for work each day on his own, i.e., without an escort. In addition, Renewal's records showed that Harden left for medical appointments, shopping trips, home visits, trips to the Social Security office, church, community service, several different barber shops and other places. Harden had to record these trips on a schedule card, the purpose of which was to teach accountability. Richardson stated that if a resident walked out the door without approval, he would be discharged from the program but not charged with escape.
The Board found that Harden's stay at Penn Pavilion from October 18, 2004, through March 22, 2005, and at Renewal, Inc. from June 21, 2005, through October 13, 2005, was not the equivalent of incarceration. Accordingly, it denied Harden's request for credit, explaining as follows:
The Board finds that the Parolee: (1) has not rebutted the presumption that he was at liberty on parole during his attendance at [the group homes]; (2) did not meet his burden of producing evidence to prove that specific characteristics of the [group homes] constituted restrictions on his liberty sufficient to warrant credit on the sentence from which he was on parole during his attendance; and (3) has not persuaded the Board that specific characteristics of the [group homes] constituted restrictions on his liberty sufficient to warrant credit on the sentence from which he was on parole during his attendance.
Board Decision, November 29, 2009; C.R. 72. On March 25, 2008, the Board issued its adjudication denying Harden's administrative appeal of the Board's decision and order. Harden now petitions this Court for review.*fn3
Harden presents one issue on appeal, namely, that each residential program was the equivalent of incarceration and, therefore, he is entitled to credit toward his 2002 sentence for the time he spent in each program. Harden requests this Court to rule "on the specific facts of record in his situation." Petitioner Brief at 8.
The "specific facts" that Harden believes relevant to his argument were established, he argues, by his testimony. At Penn Pavilion, he was not allowed to leave the facility for 90 days; if he left for medical appointments, he was escorted; when he left the facility, there were restrictions, such as having to report his actions; meals, cleaning and treatment programs were scheduled each day; and the doors and windows on the first floor were locked and alarmed. With respect to Renewal, Harden argues that "much of the same restrictions were applied." Petitioner Brief at 7. In determining whether either program was the equivalent of prison, Harden notes that the deciding factors are whether the resident is locked in and whether he may leave without physical restraint. Id. at 8. Harden concedes that his description of Penn Pavilion was contradicted by the Board's witness, but he nevertheless believes that he proved both facilities were the equivalent of prison.*fn4
The Board counters that Harden's testimony did not overcome the presumption that he was at liberty on parole while at Penn Pavilion and Renewal. It argues that Harden's evidence did not show that he was "ever subject to a rule against leaving without a mandatory coercive security escort" at either facility. Respondent Brief at 3. Accordingly, it argues that the Board did not abuse its discretion by concluding that Harden failed to prove that either group home was "a prison equivalent." Id. at 2 n.1.*fn5
We begin with a review of the applicable law. Section 21.1(a) of the act commonly known as the Parole Act*fn6 (Act) provides, in relevant part, that the Board may recommit any parolee who, during the period of parole, "commits any crime punishable by imprisonment, for which he is convicted or found guilty.." 61 P.S. §331.21a(a). If a parolee is recommitted, he must serve the remainder of the term which he would have been required to serve had he not been paroled, and he "shall be given no credit for the time at liberty on parole." Id.
The phrase "at liberty on parole" is not defined in the Act. Our Supreme Court has explained that "at liberty on parole" does not mean that a parolee must be actually "free" of restraint. To the contrary, a parolee can be considered "at liberty" even while in prison, so long as the parolee is not in prison for the purpose of serving his original sentence. Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 146 n.2, 420 A.2d 381, 383 n.2 (1980).*fn7 In Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 620, 493 A.2d 680, 683 (1985) the Supreme Court explained that "all forms of parole involve some restraint on the parolee's liberty, and non-compliance with them can result in arrest and recommittal as a technical parole violator." Stated otherwise, the imposition of restraints on a parolee's liberty is part and parcel of being "at liberty on parole."
In Cox, the Board argued that a parolee's attendance in a residential facility should always be considered "at liberty on parole" because it is a condition agreed to by the parolee. However, the Supreme Court declined the Board's invitation to issue a per se rule that all time spent in a residential facility as a condition of parole is time "at liberty on parole." Instead, the Supreme Court left the door open to a parolee to make the case that a particular residential facility is the equivalent of a prison, thereby entitling the parolee to sentence credit for time spent at that facility.*fn8
However, the Supreme Court also established jurisprudential principles in Cox that make it difficult for a parolee to make such a case. These essential principles are as follows:
1. Because a parolee does not enter a residential facility pursuant to a court order but, rather voluntarily agrees to do so "as part of his parole program, his attendance there is presumed to be at 'liberty on parole.'" Id. at 616, 493 A.2d 681 (emphasis added).
2. The presumption that attendance at a residential facility is "at liberty on parole" may be rebutted. However, it is the burden of the parolee to develop a factual record and to persuade the Board that the residential program he attended was a "prison equivalent precluding the conclusion that [the parolee] was at 'liberty on parole.'" Id. (emphasis added).
3. If the Board is not persuaded that the parolee did time in a "prison equivalent," courts should "not interfere with the Board's determination of that issue unless it acts arbitrarily or plainly abuses its ...