McMillian v. BD. OF PROBATION AND PAROLE

• Decision Date: 24 June 2003
• Citation: 824 A.2d 350
• Parties: Anthony McMILLIAN, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Supreme Court

824 A.2d 350

Anthony McMILLIAN, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 7, 2003.

Decided April 21, 2003.

Reargument Denied June 24, 2003.

Ellen K. Barry, Carlisle, for petitioner.

Arthur R. Thomas, Harrisburg, for respondent.

BEFORE: COLINS, President Judge, and LEADBETTER, Judge, and McCLOSKEY, Senior Judge.

OPINION BY President Judge COLINS.

Anthony McMillian petitions for review of the order of the Pennsylvania Board of Probation and Parole denying his administrative appeal.

On May 3, 1999, McMillian was released from the State Correctional Institution at Albion to Capitol Pavilion Community Corrections Center, where he stayed until October 20, 1999, when he completed the community corrections program. McMillian's parole supervision history indicates that he received additional sanctions in February 2000, and that on July 13, 2000, he was recommitted to Capitol Pavilion for violation of his parole condition 5c, refrain from assaultive behavior. He remained at Capitol Pavilion until July 28, 2000. On September 26, 2000, McMillian was arrested in connection with a domestic incident. He was subsequently convicted of simple assault.

McMillian was recommitted to a state correctional institution as a convicted parole violator to serve his unexpired term of 1 year, 4 months, and 9 days, with a new maximum date of January 29, 2003. By recalculation order mailed on January 2, 2002, the Board gave McMillian credit for 1 month and 17 days spent in custody on a Board warrant, setting a new maximum date of December 22, 2002. He sought a panel hearing to contest the calculation of his unexpired term, alleging that he was entitled to credit for time spent at Capitol Pavilion on the ground that its rules and regulations restricted his liberty to an extent that his stay there warrants credit against his sentence. After taking evidence, the Board ruled that McMillian's time at Capitol Pavilion was not custodial in nature such as to entitle him to credit against his unexpired term. The Board's decision, mailed September 5, 2002, denying McMillian credit for time spent at Capitol Pavilion bore a parole violation maximum date of December 22, 2002. The Board denied McMillian's administrative appeal by letter dated October 22, 2002.

On appeal, McMillian argues that the Board erred in failing to give him credit for time spent at Capitol Pavilion because the community corrections center was sufficiently restrictive as to constitute custody and not liberty on parole. The Board argues that McMillian was at liberty during his time at Capitol Pavilion because he was not in official detention and that by its very nature, parole constitutes constructive custody and confinement within boundaries set by the Board. It argues that the only time a parolee is not "at liberty" is when he or she is under arrest waiting to be returned to prison. Because McMillian was at liberty when he was residing at Capitol Pavilion, the Board argues, pursuant to the law governing parole, he is not entitled to credit for that time.

As a convicted parole violator, McMillian is not entitled to credit for any time spent "at liberty" on parole. Section 21.1 of the law known as the Parole Act,¹ 61 P.S. § 331.21a(a). Credit for time served in custody is determined pursuant to Section 9760 of the Sentencing Code, 42 Pa.C.S. § 9760.²

(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending resolution of an appeal.

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(3) If the defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based.

(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.

The question is whether time spent in a community corrections center constitutes time spent in custody such that a defendant or inmate is entitled to credit against his maximum sentence, a question of first impression.

In the absence of a statutory definition of "custody," our Supreme Court has determined that "custody" is broader than the term "imprisonment" and includes other forms of legal restraint. Commonwealth v. Chiappini, 566 Pa. 507, 782 A.2d 490 (2001). Whether a form of legal restraint constitutes custody for the purpose of sentencing credit is determined by the extent of control exercised by the restraining authority. Id.

In Chiappini, a...