holding that parolee entitled to credit for some time spent at inpatient dual diagnosis treatment program when he could not leave the facility
How later courts described this case
- holding that parolee entitled to credit for some time spent at inpatient dual diagnosis treatment program when he could not leave the facility
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
Judge COHN JUBELIRER.
Respectfully, I dissent. I do not agree with the majority that Meleski met his dual burdens of persuasion and production to establish that he was not “at liberty on parole” for the time he spent at Gaudenzia. In making a determination as to whether a parolee is “at liberty on parole,” I disagree with the majority’s application of Torres v. Pennsylvania Board of Probation and Parole, 861 A.2d 394 (Pa.Cmwlth.2004), that the nature of the parolee’s individual day-to-day experiences controls. I would look, as the Board suggests, at the total nature of the facility pursuant to Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614 , 493 A.2d 680 (1985).
The purposes of a sentence of total confinement for committing a crime are punishment, incapacitation, and deterrence. (Board’s Br. at 39.) Here, Meleski was not sent to a group home for any of those purposes; rather, he was sent in order to assist with his transition and reintegration back into society. As part of this transition, residents of group homes, such as Gaudenzia, are routinely permitted to leave with or without escorts to go to work or to participate in leisure activities.
“Under Pennsylvania statute and the public policy manifested therein, there is only one feature that each and every ‘place of incarceration’ has in common that makes them ‘places of incarceration,’ and that shared feature is this: a resident of that place commits the crime of escape if *75 he removes himself from that place without permission.” (Board’s Br. at 9.) While at Gaudenzia, the record supports a finding that Meleski could leave at any time without committing the crime of escape. Meleski could walk out the fire escape on his floor or leave the building without permission and, although an alarm would most likely ring, no one would or could prevent his exit from the building. The police would not be called and, if he was found, Meleski would not be arrested but, instead, would be considered a parole absconder. It is not legally possible to escape from parole. 1 See 18 Pa.C.S. § 5121. If Meleski could not be found to have committed the crime of escape, he certainly could not be considered to have been incarcerated. Therefore, the time Meleski spent at Gaudenzia was not the equivalent of incarceration but, rather, was the equivalent of being “at liberty on parole.”
Furthermore, the fact that Meleski was “monitored” by staff, cameras, alarms, etc., while at Gaudenzia is not significant in this analysis. In reality, monitoring of residents does nothing to prevent a parolee from walking away from a group home if he or she desires to do so. See Meehan v. Pennsylvania Board of Probation and Parole, 808 A.2d 313, 316-17 (Pa.Cmwlth.2002) (rejecting a direct violator’s claim that monitoring is the equivalent of incarceration). This fact points out an important distinction between “detecting” a departure, as would happen in Meleski’s case, and “preventing” a departure, as would happen in a prison environment.
Accordingly, because Meleski was not locked in at Gaudenzia, but could leave without being physically restrained, he is not entitled to credit and I would affirm the decision of the Board.
Judge LEAVITT joins in this dissenting opinion.
. Section 5121(a) provides that "[a] person commits an offense [of escape] if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.” 18 Pa.C.S. § 5121(a). The term "official detention” is defined as "arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.” 18 Pa.C.S. § 5121(e) (emphasis added).