Argued, June 18, 2015
Appealed from No. 269FL. State Agency: Board of Probation and Parole.
David R. Crowley, Chief Public Defender, Bellefonte, for petitioner.
Kara W. Haggerty, Assistant Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH,
ROBERT SIMPSON, J.
In this appeal, Nelson Medina (Medina), an inmate incarcerated at the State Correctional Institution at Rockview, asks whether the Pennsylvania Board of Probation and Parole (Board) erred in denying him credit for a 79-day period he spent at Liberty Management Community Corrections Facility (Liberty Management CCF). In accordance with our Supreme Court's seminal decision in Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (Pa. 1985), the Board determined Medina did not meet his burden of showing the restrictions on his liberty for the 79 days he resided at Liberty Management CCF were the equivalent of incarceration. In Cox, the Supreme Court cautioned this Court not to interfere with the Board's exercise of discretion in making such a decision unless it acts arbitrarily or plainly abuses its discretion. Because the record amply supports the Board's factual findings and because the Board's decision comports with Cox and its progeny, we affirm.
In 2011, the Board paroled Medina to Liberty Management CCF. Medina resided
at Liberty Management CCF on parole from November 21, 2011 until February 8, 2012, a 79-day period.
About a week after his discharge from Liberty Management CCF, police arrested Medina on a new criminal charge. The Board detained Medina pending disposition of this criminal charge.
The Board subsequently recommitted Medina to a state correctional institution as a convicted parole violator to serve 18 months' backtime after his conviction on the criminal charge. The decision also recalculated Medina's parole violation maximum date, which provided no credit for the 79-day period Medina resided at Liberty Management CCF.
Medina challenged the Board's denial of credit for the 79-day period in which he resided at Liberty Management CCF. The Board scheduled a hearing as required by Cox to determine the custodial nature of the program at Liberty Management CCF. A hearing examiner held a hearing at which Medina, represented by a public defender, and Karen Sans, director of Liberty Management CCF (Director), testified. A parole agent appeared in opposition to Medina's request.
Thereafter, the Board issued a decision in which it determined Medina did not meet his burden of proving he was entitled to credit for the 79-day period he resided at Liberty Management CCF. Medina filed an administrative appeal, which the Board denied. Medina now petitions for review to this Court.
On appeal, Medina asserts that, in recomputing his parole violation maximum date after his recommitment as a convicted parole violator, the Board failed to credit his original sentence with all the time to which he was entitled when it erroneously determined he was at liberty on parole while confined by the Board at Liberty Management CCF.
Medina argues he produced uncontroverted evidence that immediately after his release on parole he was directed to report to a CCF where his liberty was sufficiently restrained such that it was the functional equivalent of incarceration. At this CCF, he was confined with individuals actually serving state prison sentences. Medina contends the restrictions on his liberty were at least as onerous as the restrictions on those state prisoners because he was subject to all the rules and regulations of those inmates.
Further, the restrictions on his liberty while confined at this facility were more onerous than release on parole as he was required, like any other prisoner, to abandon his constitutional privacy protections by submitting to random suspicion-less searches of his person and property. Thus, he maintains, this time at the CCF was the functional equivalent of incarceration and not subject to forfeiture after his subsequent recommitment as a convicted parole violator.
The Board responds it did not act arbitrarily or plainly abuse its discretion by deciding Medina was not entitled to credit for the period he resided at Liberty Management CCF. Based on testimony offered at the hearing, the Board found specific facts were established about the facility, including: residents were permitted to leave the facility without escort; residents were not locked in the facility; rooms were
not locked at night; residents were permitted to travel to other parts of the building unescorted; residents were permitted to sign out to leave the facility; and, while all residents were subject to search during their residency, the reasons for the random searches was to ensure the security of residents and staff. Additionally, Director testified that while pre-release inmates and parolees were both at the facility at this time, the programming was completely different for the pre-release inmates.
The Board contends the primary difference between parolees and pre-release inmates was that if a parolee left the facility without permission or failed to return, the state parole office was contacted. Parolees were never charged with escape. If the same situation arose with a pre-release inmate, the state police were contacted and escape charges were filed. Those facts support a determination that Medina's time at Liberty Management CCF was not the equivalent of incarceration. Thus, the Board maintains, its decision to deny him credit for the period at issue is supported by the record.
Pursuant to 6138(a) of the Prisons and Parole Code (Code) provides, in relevant part:
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the [B]oard released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.
(2) If the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and ... shall be given no credit for the time at liberty on parole.
Id. (emphasis added).
Construing the statutorily undefined phrase " at liberty on parole," in its seminal decision in Cox, our Supreme Court explained:
We have never conclusively defined 'at liberty on parole,' nor have we had the opportunity to pass upon whether persons attending treatment programs ... are 'at liberty on parole.' We have previously interpreted the phrase to include 'street time,' though the concepts are not synonymous. See Young v. Commonwealth Board of Probation and Parole, [487 Pa. 428, 409 A.2d 843 (Pa. 1979)]. We made this clear in Hines v. Pennsylvania Board of Probation and Parole, [491 Pa. 142, 4 ...