Cox v. Com., Bd. of Probation and Parole

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore NIX; HUTCHINSON; PAPADAKOS, J., files a dissenting opinion in which LARSEN; FLAHERTY; PAPADAKOS; LARSEN
Citation493 A.2d 680,507 Pa. 614
Decision Date04 June 1985
PartiesJames COX, Appellant, v. COMMONWEALTH of Pennsylvania, BOARD OF PROBATION AND PAROLE, Appellee.

Page 680

493 A.2d 680
507 Pa. 614
James COX, Appellant,
v.
COMMONWEALTH of Pennsylvania, BOARD OF PROBATION AND PAROLE, Appellee.
Supreme Court of Pennsylvania.
Argued Oct. 26, 1984.
Decided June 4, 1985.

Page 681

[507 Pa. 615] Timothy P. Wile, Asst. Public Defender, Hatfield, for appellant.

Robert Greevy, Harrisburg, Chief Counsel for Bd. of Probation & Parole, Arthur R. Thomas, Harrisburg, for appellee.

Before NIX, C.J., and LARSEN, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

HUTCHINSON, Justice.

James Cox appeals by allowance Commonwealth Court's order affirming the Pennsylvania Board of Probation and Parole's (Board's) order denying him credit for time spent in an in-patient drug treatment program at Eagleville Hospital. At issue is whether appellant was, in the language of the statute, "at liberty on parole" while in that program. We are handicapped in dealing with this issue of first [507 Pa. 616] impression by a deficient factual record. Faced with those deficiencies we remand this case to the Board for development of a factual record sufficient for review of whether the Eagleville program is a prison equivalent precluding the conclusion that appellant was "at liberty on parole." However, since appellant agreed to attend Eagleville as part of his parole program, his attendance there is presumed to be "at liberty on parole," and on the remand it will be up to him to show that Eagleville's in-patient drug treatment program presented an environment so restrictive that he should get credit for time spent in it. Moreover, the Board's resolution of that issue seems to us largely in its discretion and should not be disturbed unless the record shows the Board's action to have been arbitrary.

The relevant facts can be briefly stated. Appellant was convicted of burglary in 1974 and sentenced to prison for 1 to 5 years. The Board, by order dated June 16, 1976, granted appellant parole on this sentence. That parole commenced on August 26, 1976. 1 Pursuant to 37 Pa.Code § 63.5, 2 the Board imposed as a special condition of appellant's parole attendance at Eagleville

Page 682

Hospital's in-patient [507 Pa. 617] drug and alcohol treatment program, defining failure to successfully complete that program as a parole violation.

Appellant did successfully complete the treatment program and left Eagleville to continue his parole on the street. 3 He was arrested in June of 1977 on burglary and related charges. He escaped from custody and was re-arrested in November, 1979. He then pled guilty to reduced charges stemming from the 1977 arrest and received sentences of county probation. He also pled guilty to the escape charge and was sentenced to 1 to 3 years imprisonment.

The Board held the required parole violation and revocation hearing. Cox was represented by counsel at this hearing. He was recommitted to serve the unexpired term of his original 1 to 5 year sentence as both a convicted and a technical parole violator. In the recommitment the Board recomputed appellant's maximum term under that sentence, under Section 21.1 of the Parole Act, 4 without giving him credit for time spent at Eagleville. It held that he was "at liberty on parole" while there. The Board subsequently denied appellant's petition for administrative relief. Commonwealth Court, 78 Pa. Commonwealth Ct. 183, 467 A.2d 90, affirmed.

Section 21.1 of the Parole Act provides, in relevant part:

(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from [507 Pa. 618] any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he 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. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole. 5

61 P.S. § 331.21a (emphasis added). We have never conclusively defined "at liberty on parole," nor have we had the opportunity to pass upon whether persons attending treatment programs like Eagleville's 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 (1979). We made this clear in Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980), where we held that "at liberty on parole" included time spent on constructive parole. We said:

Hines next asserts that he is entitled to credit against his original sentence for the one year spent on constructive parole,

Page 683

citing Section 21.1 of the Parole Act, 61 P.S. § 331.21a(a),

....

Hines argues that because he was in prison while on constructive parole, he was not "at liberty on parole." In Haun v. Cavell, 190 Pa.Super. 346, 353, 154 A.2d 257, 261 (1959) the Superior Court addressed this question:

[507 Pa. 619] What the legislature must have intended by "at liberty on parole" is not at liberty from all confinement but at liberty from confinement on the particular sentence for which the convict is being reentered as a parole violator. Any other interpretation would be in conflict with other provisions of the statute, and with the long established policy of the Commonwealth. During the time that a convict may be on parole from a particular offense he might be confined in a Pennsylvania prison on another offense, or in a prison of another state, or in a federal prison, or in a mental institution, or in an enemy prison camp during a war. It was not the intent of the legislature to have the words "at liberty" to mean freedom from confinement under all these and other conceivable circumstances. (Emphasis supplied).

We approved this construction of the Parole Act in Commonwealth ex rel. Jones v. Rundle, 413 Pa. 456, 199 A.2d 135 (1964) (per curiam). Accordingly, Hines was "at liberty on parole" from his first sentence while incarcerated on his second sentence from August 29, 1975 to August 29, 1976, and is not entitled to credit against his original sentence for that one year on constructive parole.

Id., 491 Pa. at 148-149, 420 A.2d at 384.

Appellant did not enjoy the greater freedom of "street time" while at Eagleville, but he was restricted from leaving Eagleville under the special condition arising out of his original sentence, a restriction of liberty presumably less onerous than constructive parole. We are therefore left with the need for a factual determination as to the nature of the Eagleville program and whether the restrictions on appellant's liberty there were the equivalent of incarceration entitling him to credit for the time spent in the program. The majority of jurisdictions which allow credit on backtime for time spent in rehabilitation programs examine the specifics of the program to make this determination. See Annot. 24 A.L.R.4th 789 (1983) (credit for back time on probation violations).

[507 Pa. 620] Any effort to review this factual question now is defeated by the inadequate record before us. Appellant's assertion that he was not "at liberty on parole" because a premature termination of the Eagleville program would constitute a parole violation must, without factual support, fail. All forms of parole involve some restraint on the parolee's liberty, 6 and non-compliance with them can result in arrest and recommittal as a technical parole violator. It is appellant's burden, on remand, to show the specific characteristics of the Eagleville program that constituted restrictions on his liberty sufficient to warrant credit on his recomputed backtime, and persuade the Board of that fact. Moreover, we will not interfere with the Board's determination of that issue unless it acts arbitrarily or plainly abuses its discretion. See 2 Pa.C.S. § 704; Bradshaw v. Commonwealth, Pennsylvania Board of Probation and Parole, 75 Pa. Commonwealth Ct. 90, 461 A.2d 342 (1983).

Nevertheless, the Board must help in providing a record which makes effective appellate review possible. Simply because parole status must be voluntarily accepted by the prisoner, and the conditions of his parole are known to him when it is accepted, we cannot conclude, as the Board seems

Page 684

to intimate, that he is automatically "at liberty on parole."

The Board imposed special conditions on appellant's parole, conditions beyond those generally imposed on parolees. While the Board had the statutory authority to impose these conditions, the specific programs at Eagleville may have been so restrictive that they require the granting of credit. Other programs may not require such credit. We cannot make an...

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111 practice notes
  • Adams v. PENNSYLVANIA BD. OF PROBATION
    • United States
    • Commonwealth Court of Pennsylvania
    • 1 Noviembre 2005
    ...to credit for the time he resided at the rehabilitation and diagnostic center pursuant to Cox v. Pennsylvania Bd. of Prob. & Parole, 507 Pa. 614, 493 A.2d 680 (1985). Adams, however, failed to set forth a claim for credit in his request for administrative relief. Indeed, Adams' petition fai......
  • Medina v. Pa. Bd. of Prob. & Parole, No. 1116 C.D. 2014
    • United States
    • Commonwealth Court of Pennsylvania
    • 16 Julio 2015
    ...(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 (1985), the Board determined Medina did not meet his burden of showing the restrictions on his liberty for the 79 days he resided......
  • Scott v. Pennsylvania Bd. of Probation and Parole
    • United States
    • United States State Supreme Court of Pennsylvania
    • 3 Julio 1997
    ...of a parolee. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 3, 93 S.Ct. 1756, 1759 n. 3, 36 L.Ed.2d 656 (1973); Cox v. Commonwealth, 507 Pa. 614, 493 A.2d 680 7 In 1995, the General Assembly enacted a legislative framework for searches conducted by state and county parole officers. See 61 P......
  • Garrett v. Pa. Bd. of Prob. & Parole, CIVIL NO. 1:CV-13-0684
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 14 Mayo 2014
    ...corrections centers in 2006, 2007 and 2010 should be credited to hisPage 4sentence under Cox v. Pennsylvania Board of Prob. & Parole, 507 Pa. 614, 493 A.2d 680 (1985).1 The Board appointed counsel to represent Petitioner at the hearing. By a decision recorded January 11, 2012, and mailed Ja......
  • Request a trial to view additional results
111 cases
  • Adams v. PENNSYLVANIA BD. OF PROBATION
    • United States
    • Commonwealth Court of Pennsylvania
    • 1 Noviembre 2005
    ...to credit for the time he resided at the rehabilitation and diagnostic center pursuant to Cox v. Pennsylvania Bd. of Prob. & Parole, 507 Pa. 614, 493 A.2d 680 (1985). Adams, however, failed to set forth a claim for credit in his request for administrative relief. Indeed, Adams' petition fai......
  • Medina v. Pa. Bd. of Prob. & Parole, No. 1116 C.D. 2014
    • United States
    • Commonwealth Court of Pennsylvania
    • 16 Julio 2015
    ...(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 (1985), the Board determined Medina did not meet his burden of showing the restrictions on his liberty for the 79 days he resided......
  • Scott v. Pennsylvania Bd. of Probation and Parole
    • United States
    • United States State Supreme Court of Pennsylvania
    • 3 Julio 1997
    ...of a parolee. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 3, 93 S.Ct. 1756, 1759 n. 3, 36 L.Ed.2d 656 (1973); Cox v. Commonwealth, 507 Pa. 614, 493 A.2d 680 7 In 1995, the General Assembly enacted a legislative framework for searches conducted by state and county parole officers. See 61 P......
  • Garrett v. Pa. Bd. of Prob. & Parole, CIVIL NO. 1:CV-13-0684
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 14 Mayo 2014
    ...corrections centers in 2006, 2007 and 2010 should be credited to hisPage 4sentence under Cox v. Pennsylvania Board of Prob. & Parole, 507 Pa. 614, 493 A.2d 680 (1985).1 The Board appointed counsel to represent Petitioner at the hearing. By a decision recorded January 11, 2012, and mailed Ja......
  • Request a trial to view additional results

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