# Torres v. Pennsylvania Board of Probation & Parole

> Commonwealth Court of Pennsylvania · September 27, 2004 · 861 A.2d 394

URL: https://www.frixlaw.com/law-library/cases/9766644

## Case

- **Full name:** Jose Enrique TORRES, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** September 27, 2004
- **Citations:** 861 A.2d 394; 2004 Pa. Commw. LEXIS 705
- **Precedential status:** Published
- **Opinion:** Concurrence by Friedman
- **Judges:** Ner, Colins, McGinley, Smith-Ribner, Pellegrini, Friedman, Leadbetter, Jubelirer
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766644

## How later opinions describe it (automated extraction)

- holding that parolee entitled to credit for some time spent at a community corrections center, an inpatient drug and alcohol rehabilitation facility, when he could leave facility only as directed by facility and when escorted by staff

## Opinion text

CONCURRING OPINION BY
Judge FRIEDMAN.
I respectfully concur. I agree with the majority that the restrictions on the liberty of Jose Enrique Torres (Torres) during the initial forty-five-day “black out” period at the Conewago-Wernersville inpatient drug and alcohol rehabilitation facility (Conewago) were the equivalent of incarceration as contemplated by our supreme court in Cox v. Board of Probation and Parole, 507 Pa. 614 , 493 A.2d 680 (1985). Thus, like the majority, I would hold that Torres is entitled to forty-five days credit towards his sentence. However, I write separately to present a different analysis of the issue.
Torres was paroled to Conewago, a community corrections center (CCC) with a drug and alcohol treatment program, and was required to actively participate in the program until successfully discharged. (C.R. at 11.) The residents at Conewago included other parolees under the jurisdiction of the Pennsylvania Board of Probation and Parole (Board) as well as prere-lease inmates under the jurisdiction of the Department of Corrections (DOC). (C.R. at 49-50.) If a parolee leaves without authorization, the staff notifies a parole agent, and, when arrested, the parolee is charged with violating a condition of parole. (C.R. at 51.) By contrast, if a prere-lease inmate leaves without authorization, the staff notifies DOC and the Pennsylvania State Police, and, when arrested, the inmate is charged with escape. (C.R. at 50.) During an initial “black out” period of forty-five days, residents in the inpatient program remain at the facility and attend meetings there. (C.R. at 57.) Residents *402 sometimes attend meetings away from the facility, in which case the facility’s staff escorts and drives the residents to and from the meetings. (C.R. at 57.)
The question presented is whether the restrictions on Torres’ liberty during the initial “black out” period at Conewago were the equivalent of incarceration and, thus, sufficient to warrant giving Torres credit towards his sentence following his recommitment as a convicted parole violator (CPV).
Section 21.1(a) of the Act commonly known as the Parole Act 1 states that a CPV who has been recommitted by the Board shall receive no credit for time “at liberty” on parole. In order for a parolee to prove that time spent in an inpatient rehabilitation program is not time at liberty on parole, the parolee must demonstrate that specific characteristics of the program constitute “restrictions on ... liberty” sufficient to warrant credit. Cox, 507 Pa. at 620 , 493 A.2d at 683 . Restrictions on liberty warrant credit if they are the “equivalent of incarceration.” Id. at 619 , 493 A.2d at 683 .
I. Equivalent of Incarceration
In Cox , our supreme court held that a parolee is entitled to credit for time served in an inpatient rehabilitation program when the restrictions on liberty were the equivalent of “incarceration.” However, the court did not indicate in that decision whether they meant incarceration in a maximum security or a minimum security facility. Likewise, the court did not address whether the lesser restrictions on the liberty of an inmate who resides in a CCC or group home, or who has qualified for work release, educational release, vocational training release or temporary home furlough, would qualify as the equivalent of incarceration. See 37 Pa.Code § 94.2.
A. CCC Residency
Although our supreme court did not provide clear guidance in Cox as to the meaning of “incarceration” for purposes of awarding credit to parolees for time spent in a CCC, the fact is that inmates serving sentences of incarceration always receive credit for time spent in CCC residency programs like the one at Conewago.
By definition, a CCC is a “minimum security ... facility operated by the [DOC] for the purpose of facilitating special programs.” 37 Pa.Code § 91.1. A CCC residency program is a prerelease program with a “custodial structure.” 37 Pa.Code § 94.2(c)(1). A qualified inmate serving a sentence of incarceration may be placed in a CCC residency program to serve some of that sentence. See 37 Pa.Code §§ 94.2(c)(1) & 94.3(a)(2)® (setting time-served requirements for placement in a CCC residency program).
Certainly, then, to an inmate who is not on parole, a CCC residency is the equivalent of incarceration. 2 On this basis, I suggest that to meet their burden of proof under Cox , parolees may present evidence to establish that the restrictions on liberty are identical for parolees and inmates at a CCC. Given such evidence, I would conclude that the parolee is entitled to credit towards his sentence for time spent at the CCC. 3
*403 B. Escape
Torres indicated by his testimony that the restrictions on his liberty were the same as the restrictions on the liberty of the prerelease inmates. (See C.R. at 36.) However, according to the testimony of the executive director of Conewago, there was a difference between the two groups, viz., a parolee who left without authorization would be charged with a parole violation by a parole agent, but a prerelease inmate who left without authorization would be charged with escape by the Pennsylvania State Police.
This court held in Meehan v. Pennsylvania Board of Probation and Parole, 808 A.2d 313 (Pa.Cmwlth.2002), that parolees and inmates in an inpatient treatment program are not similarly situated for equal protection purposes because, unlike inmates, parolees are not charged with escape for leaving the program without authorization. In subsequent cases, this court has considered “the escape factor” in concluding that the restrictions on a parolee’s liberty at inpatient rehabilitation facilities are not the equivalent of incarceration. See, e.g., Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187 (Pa.Cmwlth.2004); Willis v. Pennsylvania Board of Probation and Parole, 842 A.2d 490 (Pa.Cmwlth.2004).
It may seem logical to think that, for a person to be “incarcerated” in a particular facility, that person would be charged with escape for leaving the facility without authorization. However, the result of such thinking is that parolees can never receive credit for time spent in a CCC because parolees can never be charged with escape. 4 In Cox , our supreme court clearly anticipated that parolees in a CCC program might be entitled to credit. To reiterate, the question under Coa; is whether the specific characteristics of the program restrict liberty to such an extent that residency in the program is the equivalent of incarceration. The charge made against an individual who leaves a CCC program without authorization is a legal matter; the applicable charge is not a characteristic of the program.
C. McMillian
In McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 (Pa.Cmwlth.2003), appeal granted, 578 Pa. 718 , 854 A.2d 969 (2004), this court appeared to eliminate any distinction between the giving of credit to inmates and parolees for time spent at a CCC. This court considered, for the first time, whether a parolee is entitled to credit for time spent at a CCC based on section 9760 of the Sentencing Code, which allows credit for time *404 spent “in custody.” 42 Pa.C.S. § 9760. This court held that “a pre-release inmate or parolee confined to a[CCC] is sufficiently restrained, physically and constructively, as to be in custody.” McMillian, 824 A.2d at 353 (emphasis added). Thus, we concluded that the parolee was entitled to credit.
This court has since limited its holding in McMillian to mean only that prerelease inmates, but not parolees, are entitled to credit for time spent at a CCC under section 9760. See, e.g., Wagner. However, the Board points out in its brief that the individual in McMillian was a parolee, not a prerelease inmate. The Board also asserts that, if the individual had been a prerelease inmate, the DOC, rather than the Board, would have had jurisdiction over his entitlement to credit. Accepting the Board’s argument, this court’s case law limiting the holding in McMillian should be overruled. 5
II. Frye
Although this court has jurisdiction over cases involving parolees under the jurisdiction of the Board, our superior court has jurisdiction over cases involving county “parolees.” 6 In Commonwealth v. Frye, 853 A.2d 1062 (Pa.Super.2004), our superi- or court adopted the approach taken by this court in McMillian , considering at the same time whether the county “parolees” are “in custody” under section 9760 of the Sentencing Code and whether the county “parolees” are “incarcerated” under Cox .
Specifically, our superior court considered whether a “parolee” under the jurisdiction of the courts of common pleas is entitled to credit towards a sentence for time spent on electronic home monitoring as a condition of parole. The court concluded that time spent in house arrest is time “in custody” under section 9760 and that electronic home monitoring is the equivalent of incarceration under Cox .
We conclude that the time Frye spent on house arrest was clearly “time spent in custody” for purposes of the statute. Frye could not even have gone into the yard of her residence without setting off an alarm. She needed permission to leave the house or attend Alcoholics Anonymous meetings, counseling, work or other programs. Probation officers were free to enter her house and search her at any time. As such, we believe that Frye, in effect, was incarcerated albeit at her home address.
Frye, 853 A.2d at 1065 (emphasis added). Although we are not bound by our superi- or court’s precedent, 7 I would point out *405 that the restrictions on Torres’ liberty at Conewago were greater than the restrictions on a county “parolee” subject to electronic home monitoring.
For all of the reasons stated above, I would hold that Torres is entitled to forty-five days credit for the initial “black out” period at Conewago.
. Act of August 6, 1941, P.L. 861, added by the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. § 331.21a(a).
. Like all state correctional institutions, a CCC is operated by the DOC, has a custodial structure and holds inmates who are serving sentences of incarceration before being released on parole or otherwise. Like some state correctional institutions, a CCC is a minimum security facility.
.I would not hold that a parolee is entitled to credit for time spent in any inpatient rehabilitation program. Some parolees are released *403 to hospital rehabilitation programs rather than CCC rehabilitation programs. Moreover, where a parolee is released to a CCC program, the parolee must present evidence that the CCC does house inmates, or may house inmates, and that the restrictions on the liberty of the parolee were identical to the restrictions that were placed, or would be placed, on the liberty of inmates.
. Section 5121(a) of the Crimes Code defines "escape” as unlawfully removing oneself from "official detention.” 18 Pa.C.S. § 5121(a). Section 5121(e) of the Crimes Code defines "official detention” to mean any detention for law enforcement purposes, but it does not include supervision of probation or parole. 18 Pa.C.S. § 5121(e).
I note that electronic home monitoring is "official detention,” and, thus, a person can be charged with escape for removing oneself from electronic home monitoring. Commonwealth v. Wegley, 574 Pa. 190 , 829 A.2d 1148 (2003). However, electronic home monitoring is not "imprisonment,” a synonym for the word incarceration. Commonwealth v. Kriston, 527 Pa. 90 , 588 A.2d 898 (1991); Black’s Law Dictionary 775 (8th ed. 2004). Thus, based on current case law, some individuals who are not incarcerated may be charged with escape.
. For me, there is no reason to limit McMilli-an simply because McMillian considered, both whether a parolee is “in custody” under section 9760 of the Sentencing Code and whether a parolee is "at liberty” under section 21.1(a) of the Parole Act. If a parolee is "in custody,” then the parolee is not "at liberty” on parole.
. A sentence that is less than twenty-four months is a county sentence, and individuals released on parole from county sentences are supervised by the county probation department rather than the state Board. See Commonwealth v. Frye, 853 A.2d 1062 (Pa.Super.2004). Although the probation department was responsible for supervising the individual in Frye , I refer to the individual as a "parolee,” as did our superior court, because she was released on parole from a sentence; she was not actually given a sentence of probation.
.This court is not bound by our superior court’s precedent, but, where persuasive, we are free to adopt our superior court's reasoning. Wertz v. Chapman Township, 709 A.2d 428 (Pa.Cmwlth.1998), aff'd, 559 Pa. 630 , 741 A.2d 1272 (1999). In this regard, I note that Frye is consistent with Commonwealth v. Chiappini, 566 Pa. 507, 782 A.2d 490 (2001), in which our supreme court awarded credit to an inmate under section 9760 of the Sentenc *405 ing Code, 42 Pa.C.S. § 9760, for time spent in an electronic home monitoring program.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766644. Public record. Not legal advice.