inmate failed to specify facts regarding rehabilitation program which was the basis for credit against his maximum expiration date of sentence and so did not meet burden of including facts or a legal basis for the relief he seeks
How later courts described this case
- inmate failed to specify facts regarding rehabilitation program which was the basis for credit against his maximum expiration date of sentence and so did not meet burden of including facts or a legal basis for the relief he seeks
Written by the judges who cited it.
The opinion
SMITH, Judge,
dissenting.
I respectfully dissent from the majority’s conclusion that a convicted parole violator is not entitled to credit against the maximum sentence for time confined by an electronic home monitoring system. Section 21.1(a) of the Act commonly known as the Parole Act 1 provides that a convicted parole violator who is recommitted “shall be given no credit for the time at liberty on parole.” Thus the pertinent question is whether time spent confined by a home monitoring system is time “at liberty on parole.” This phrase has never been conclusively defined. Jackson v. Pennsylvania Board of Probation and Parole, 130 Pa.Cmwlth. 527 , 568 A.2d 1004 (1990).
A term that is not defined by the legislature must be construed in accordance with its common and ordinary meaning. Section 1908(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a); Commonwealth v. Kriston, 527 Pa. 90 , 588 A.2d 898 (1991). It is inconceivable that a person who is confined by the state to one building can be considered at liberty, even when that building is the person’s home. The majority relies upon the Supreme Court’s holding in Kriston , but that decision is unavailing: the Supreme Court in Kriston was construing the term “imprisonment” which connotes confinement in an institution. The Superior Court’s decision in Commonwealth v. Wilson, 744 A.2d 290 (Pa.Super.1999), is similarly of no help because the Superior Court was construing the term “custody” under Section 9760 of the Sentencing Code, as amended, 42 Pa.C.S. § 9760, which the court interpreted as confinement in prison. For the forgoing reasons, I respectfully dissent. 2
. Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, 61 P.S. § 331.21a(a).
. With regard to the majority's discussion of backtime, I note that the issues raised and briefed by Petitioner relate only to credit against his maximum sentence. The concept of backtime, by contrast, relates to when a recommitted parole violator will again be eligible for parole, which is in effect a recomputed minimum sentence. Torres v. Pennsylvania Board of Probation and Parole, 765 A.2d 418 (Pa.Cmwlth.2000).