Opinion
No. 2022 C.D. 2012
06-20-2013
Ronald Williams, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Ronald Williams petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) denying his request for credit toward his recalculated sentence. Williams contends that the Board erred in failing to grant him credit for the time spent at the Joseph E. Coleman Center (Coleman Center). In this appeal, we consider whether the conditions at the Coleman Center were sufficiently custodial to support Williams' claim for credit toward his sentence. Concluding that the Board did not abuse its discretion in denying Williams' claim, we affirm.
On December 1, 2003, Williams was paroled from State Correctional Institution (SCI) - Dallas where Williams had been serving a term of 7 to 20 years for 3rd Degree Murder. At the time of his parole, Williams' maximum release date was January 15, 2013. Once paroled, Williams was placed at the Coleman Center. Williams stayed at the Coleman Center from December 1, 2003, to March 10, 2004, for a total of 101 days; the first seven days were considered a "black out" period.
The Coleman Center accepts residents referred by the Department of Corrections and the Board of Probation and Parole for work-release training and mental health services; Center residents may also be Half-Way Back participants. Figueroa v. Pennsylvania Board of Probation and Parole, 900 A.2d 949, 950 n.1 (Pa. Cmwlth. 2006).
On March 21, 2005, Williams was recommitted for six months as a technical parole violator. His maximum release date remained January 15, 2013. Williams was subsequently arrested on December 18, 2008, and convicted of a new crime on February 2, 2011. As a result, on May 5, 2011, Williams was recommitted for a second time as a convicted and technical parole violator. In response to Williams' second recommitment, the Board recalculated his maximum release date to January 4, 2018, which it modified to December 26, 2017, to credit Williams for time served in 2007. The Board did not grant Williams any credit for the 101 days he spent at the Coleman Center from December 1, 2003, to March 10, 2004. Williams petitioned for administrative review on June 14, 2011, arguing he was entitled to credit for his time at the Coleman Center.
On November 10, 2011, the Board hearing examiner conducted an evidentiary hearing. At the hearing, Williams testified, as did Emmanuel Ehirim, Director of Classification at the Coleman Center. Both witnesses testified about the conditions at the facility.
Williams described the Coleman Center as a "warehouse that's fenced in" by barbed wire, with only one main entrance. Certified Record at 60. Passage through the entrance requires Center employees to buzz individuals in and out. Ehirim testified that this security measure was in place to keep the public out, rather than lock residents in. Furthermore, Ehirim testified that residents are able to leave the facility and Center staff is prohibited from physically restraining any residents. Additionally, there are metal detectors at the entrance and security cameras inside and outside the Center. Center residents sleep in rooms that are windowless and accommodate six to eight individuals. These rooms, however, are never locked and Center residents are allowed to freely move throughout the Center.
Williams testified that when he initially arrived at the Center his belongings were searched and, during his initial seven-day "black out" period, he had no visitation rights, could not receive phone calls, and was required to travel with a Center escort. For the rest of Williams' stay at the Center, he was subject to random drug testing two to three times a week, and was required to attend drug and alcohol meetings, secure employment, and check in with Center employees twice a day. Williams acknowledged that he was able to leave the Center without an escort in order to go to work, attend drug and alcohol treatment and visit with friends and relatives. He received pre-approved visitor passes on the weekends.
Williams asserted that he was on pre-parole status during his time at the Center. However, Ehirim contradicted this assertion, testifying that if Williams left the Center without authorization, his parole officer, not the police, would have been notified. As such, there was no danger of an arrest warrant being issued for Williams if he left the Center without authorization.
The Board's hearing examiner recommended that Williams be given credit for the seven-day "black out" period but not for the other 94 days. By decision dated February 23, 2012, the Board recalculated and adjusted Williams' parole violation date by eight days. Williams again requested administrative relief on March 16, 2012, arguing that while the Board had correctly recalculated his parole violation date, it had failed to address Williams' claim that he was entitled to credit for the time he spent at the Coleman Center from December 1, 2003, to March 10, 2004. The Board denied any further relief. Williams now petitions this Court for review.
This Court's scope of review is limited to determining whether the Board committed an error of law, the Board's findings of fact are supported by substantial evidence, and whether the Board violated any of parolee's constitutional rights. Torres v. Pennsylvania Board of Probation and Parole, 861 A.2d 394, 396 n.2 (Pa. Cmwlth. 2004).
Williams contends that he is entitled to credit for his entire stay at the Coleman Center, or, alternatively, for the initial seven-day "black out" period. In support of his claim, Williams asserts that the following factors demonstrate a sufficient restraint of his liberty: Williams' belief that an arrest warrant would be issued if he left the Center without permission or failed to check in; the physical appearance of the Center, which evoked feelings of incarceration; having to be buzzed into or out of the Center by an employee; and only being permitted to have visitors on the weekend if they were pre-approved. Furthermore, during the "black out" week Williams was unable to travel without an escort, receive phone calls, or accept visitors.
Section 6138(a)(1) of the Prisons and Parole Code authorizes the Board to recommit a parolee who "commits a crime punishable by imprisonment, for which the parolee is convicted." 61 Pa. C.S. § 6138(a)(1). When so recommitted, a parolee is required to "serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and ... shall be given no credit for the time at liberty on parole." 61 Pa. C.S. §6138(a)(2) (emphasis added).
There is no legislative definition of "at liberty," but our Supreme Court, in Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985), provided principles to guide our analysis. The Cox court explained that "at liberty" was not freedom from "all confinement but at liberty from confinement on the particular sentence for which the convict is being reentered as a parole violator." Id. at 619, 493 A.2d at 683 (citation omitted) (emphasis in original). Additionally, the Cox court explained that the burden rests on the petitioner to show how the program was restrictive enough to warrant credit. Id. at 616, 620, 493 A.2d at 681, 683. The courts will not overturn the Board's decision unless it acted arbitrarily or abused its discretion. Id. at 620, 493 A.2d at 683. It is not an easy task for the parolee to rebut "the presumption that time spent in a residential facility is not entitled to sentence credit." Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 698 (Pa. Cmwlth. 2009) (emphasis in original).
See Cox, 507 Pa. at 620 n.6, 493 A.2d at 683 n.6 ("All parolees are subject to restriction on travel, place of residence and possession and use of weapons.").
In Figueroa v. Pennsylvania Board of Probation and Parole, 900 A.2d 949 (Pa. Cmwlth. 2006), this Court denied a parolee credit for his 90-day residency at the Coleman Center. Similar to Williams, Figueroa was required to attend the Coleman Center and complete its rehabilitation program as a condition of his parole. Id. at 950. Figueroa asserted that the Center was like a prison because he believed, erroneously, that he could not leave the Center. In rejecting that argument, this Court explained that in evaluating whether time spent in a facility entitles a parolee to credit, the parolee's "subjective impression of [his] restrictions is not dispositive of the question of whether [his] confinement is the equivalent of incarceration." Id. at 952 (citations omitted). Rather, the most important factors in the analysis are (1) whether the parolee is "locked in" the facility and (2) whether the parolee "may leave without being physically restrained." Id. (citations omitted). This Court held that Figueroa did not satisfy his burden of proving constructive incarceration because the Coleman Center doors were locked only to keep "unauthorized visitors from entering, not to prevent the residents from leaving;" staff did not "physically restrain the residents;" parolees were not "charged with escape if they [left]" without permission; and Figueroa could "leave unescorted during the blackout period." Id. at 952-53.
Although Figueroa called the entire 90-day period at the Coleman Center a "black out" period, it is not clear that he used the term with any precision. It is the restrictions on a parolee that are dispositive of the credit issue.
In Meleski v. Pennsylvania Board of Probation and Parole, 931 A.2d 68 (Pa. Cmwlth. 2007), this Court denied a parolee credit for a 30-day "black out" period at the Coleman Center, but granted him credit for a 90-day "black out" period at the Gaudenzia Center. During his "black out" period at the Gaudenzia Center, Meleski was unable to make phone calls, leave the Center, or leave the floor his room was on without setting off an alarm. Additionally, Meleski was required to travel with an escort whenever he left the facility. However, at the Coleman Center, even during his "black out" period, Meleski was never at risk of being physically prevented from leaving the Center. Id. at 70. Accordingly, based on the significantly different treatment between the Centers, this Court granted credit only for the "black out" period at the Gaudenzia Center and not for any time spent at the Coleman Center. Id. at 74.
By contrast, this Court recently granted credit to a parolee for time spent at the Coleman Center in Ford v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 2230 C.D. 2010, filed May 10, 2011). In Ford, however, the parolee was enrolled in a specific program at the Center which was significantly more restrictive. Ford was unable to leave the Center without an escort and was locked in his "unit," except for meals and recreation time. This Court found that these additional restrictions distinguished Ford's case from Figueroa and Meleski and warranted credit toward his sentence. Ford received credit only for the time he spent in the special program, and not for any other time at the Coleman Center. --------
In deciding the case at bar, we are bound by Figueroa and Meleski. In both cases, this Court found that because residents of the Coleman Center could leave the facility unescorted during the "black out" period, their liberty was not sufficiently restricted during that time to justify awarding sentencing credit. Williams presented no evidence that the restrictions during the "black out" period at the Coleman Center have significantly changed since Figueroa and Meleski were decided. Furthermore, the factors identified in Figueroa still weigh against a finding that residency at the Coleman Center after the "black out" period is the equivalent of confinement. Williams was never locked in the Center, but could leave at any time without fear of being physically restrained. The fence surrounding the Center and the lock on the main entrance are there to keep unwarranted visitors out, not to keep residents in. Finally, Williams' erroneous beliefs that he was on pre-parole status and could not leave the Center without being charged with escape are subjective impressions that are not relevant to our analysis.
For all of the foregoing reasons, we agree with the Board's decision to deny Williams credit for any of his time spent at the Coleman Center when it recalculated his maximum sentence. Accordingly, we affirm the Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 20th day of June, 2013, the order of the Pennsylvania Board of Probation and Parole dated October 2, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge