Jackson v. Pennsylvania Board of Probation & Parole
781 A.2d 239
Pa. Commw. Ct.
2001
Check Treatment

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

Commonwealth Court of Pennsylvania.

Decided June 28, 2001.

Submitted on Briefs April 27, 2001.

239

bear a reasonable relationship to the object of the legislation.

. Moreover: [T]he underlying purpose of [Pa. Constitution Art. 3, § 32] is analogous to the equal protection clause of the federal constitution and [] our analysis and interpretation of the clause should be guided by the same principles that apply in interpretation of federal equal protection.
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amendments of municipal powers which may be made from time to time by the General Assembly.” Therefore, I would also sustain the preliminary objections to Count III. Accordingly, I respectfully dissent from that portion of the majority‘s decision overruling those preliminary objections.

Applying these principles to the case at hand, I find no denial of equal protection, and thus no violation of Article III, § 32. It is beyond dispute that the General Assembly enacted the Education Empowerment Act in response to a significant pattern of failure among many of the Commonwealth‘s public schools. The challenged provision of the EEA, the Act 91 Amendment, provides a specialized remedy for the Harrisburg School District which is specifically tailored both to the educational problems of the district and to the particular form of government of the City and the district. It is modeled after programs in other states which have shown promising results, and is frankly designated as a pilot program.

Because I believe Act 91 represents a rational legislative response to a serious erosion of our consistency in providing “a thorough and efficient system of public education to serve the needs of the Commonwealth,” Pa Const., Art. III, § 14, I would sustain the preliminary objections to Counts I and II. Further, I agree with respondents that, ”Pa. Const. art. IX, § 3, by its own terms, only requires voter referendum when an optional form of government is adopted or repealed.... The provision thus speaks only to a wholesale change of municipal government, not to

Kenneth R. Sottile, Edensburg, for petitioner.

Robert A. Greevy, Harrisburg, for respondent.

Before: SMITH and FRIEDMAN, Judges, and McCLOSKEY, Senior Judge.

McCLOSKEY, Senior Judge.

Anthony Jackson (Petitioner), petitions for review of a determination of the Pennsylvania Board of Probation and Parole (Board), denying Petitioner‘s request for administrative relief. We affirm.

On April 26, 1993, Petitioner was sentenced to three to seven years imprisonment for receiving stolen property. The minimum expiration date of the sentence was May 11, 1996, and the maximum expiration date of the sentence was May 11, 2000. (R. at 1). Petitioner was released on parole on this sentence on July 2, 1996. As recorded on October 3, 1996, the Board declared Petitioner delinquent effective August 13, 1996. (R. at 22). Petitioner was arrested on November 2, 1996, was subsequently recommitted as a technical parole violator to serve twelve months backtime.1

On June 1, 1998, Petitioner was reparoled.2 (R. at 33). After absconding supervision, the Board declared Petitioner delinquent effective December 1, 1998. (R. at 37). On September 23, 1999, Petitioner was arrested on various charges and the Board subsequently lodged a warrant against him. (R. at 38). The Board recommitted Petitioner as a technical parole violator to serve fifteen months backtime. (R. at 42).

On March 15, 2000, Petitioner pled guilty to the new charges and was sentenced to a term of six to twelve months imprisonment. Since Petitioner did not post bond, the Board credited him on the new sentence from September 24, 1999, to March 15, 2000, and released him on parole. (R. at 76).

After a hearing held before a hearing examiner on June 7, 2000, the Board recommitted Petitioner to serve twelve months as a convicted parole violator.3 The order recalculated Petitioner‘s maximum expiration date of the sentence to June 27, 2002. Petitioner filed a request for administrative relief, arguing that the Board erred in recalculating the maximum expiration date of his sentence. By letter mailed September 7, 2000, the Board denied Petitioner‘s request for administrative relief and Petitioner petitioned for review.4

On appeal to this Court, Petitioner argues that the Board erred in calculating the maximum expiration date of his sentence. Specifically, he asserts that he should receive credit from June 1, 1998, until September 24, 1998, for a total of three months and twenty-three days.5 Additionally, Petitioner asserts that he should receive credit from September 24, 1998, until December 1, 1998, for a total of two months and eight days.6 Petitioner contends that the correct maximum expiration date of his sentence is December 15, 2001. Finally, Petitioner argues that the Board erred by adding one month and eleven days backtime to his sentence.7 We disagree.

Initially we note that a petitioner‘s request for administrative relief must specifically set forth facts or a legal basis for the relief sought. 37 Pa.Code § 73.1;

. Our Supreme Court held in
, that time spent in an in-patient rehabilitation center may constitute restrictions on a petitioner‘s liberty sufficient to warrant credit on his maximum expiration date of sentence. However, the Court emphasized that the burden is on the petitioner to show that the specific characteristics of the rehabilitation program restrict his liberty.
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Petitioner‘s request for administrative relief contends that he should receive credit for time spent at the Alle-Kiske Pavilion but failed to show the specific characteristics of that program which would constitute a restraint on his liberty. There is nothing in the record that would lead us to believe that Petitioner was restrained in a manner that would constitute “custody.”8 Therefore, because Petitioner failed to specifically set forth facts regarding the rehabilitation program which might entitle him to credit against his maximum expiration date of sentence, we conclude that the Board properly denied Petitioner‘s request for administrative relief.

Next, Petitioner argues that he should have received credit for the period between September 24, 1998, through December 1, 1998, for time he was subject to electronic home monitoring. Our Supreme Court has held in

, that electronic home monitoring does not constitute “imprisonment” for purposes of serving a mandatory minimum sentence. Our highest court has not spoken, however, on the issue of whether electronic home monitoring constitutes “custody” for purposes of receiving credit against a sentence‘s maximum expiration date. However, the Pennsylvania Superior Court recently held that confinement to one‘s home was not the equivalent of time served in an institutional setting and denied a defendant‘s request for credit. See
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Because the law is clear that electronic home monitoring does not constitute “imprisonment” we also believe that it does not constitute “custody.” Moreover, because Petitioner failed to include specific facts regarding the restrictions placed upon him while subject to electronic home monitoring which may be sufficient to warrant credit against his maximum expiration date, we conclude that the Board properly denied Petitioner‘s request for administrative relief.

Finally, Petitioner argues that the Board erred by adding one month and eleven days backtime to his sentence for time he spent at liberty while on parole. However, a convicted parole violator cannot receive credit against his maximum sentence for time spent at liberty while on parole.

, petition for allowance of appeal denied,
. Section 21.1a of what is commonly referred to as the “Parole Act,” Act of August 6, 1941, P.L. 861, as amended, added by Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. § 331.21a, specifically provides:

(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, from which he pleads guilty ... 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.

The clear language of the “Parole Act” mandates that Petitioner‘s time at liberty be added to his maximum expiration date of sentence since he was recommitted as a convicted parole violator. Therefore, we conclude that the Board did not err by adding one month and eleven days backtime to Petitioner‘s sentence.

Accordingly, the order of the Board is affirmed.

ORDER

AND NOW, this 28th day of June, 2001, the order of the Pennsylvania Board of Probation and Parole is hereby affirmed.

SMITH, Judge, dissenting.

I respectfully dissent from the majority‘s conclusion that a convicted parole violator is not entitled to credit against the maximum sentence for time confined by an electronic home monitoring system. Section 21.1(a) of the Act commonly known as the Parole Act1 provides that a convicted parole violator who is recommitted “shall be given no credit for the time at liberty on parole.” Thus the pertinent question is whether time spent confined by a home monitoring system is time “at liberty on parole.” This phrase has never been conclusively defined.

.

A term that is not defined by the legislature must be construed in accordance with its common and ordinary meaning. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a);

. It is inconceivable that a person who is confined by the state to one building can be considered at liberty, even when that building is the person‘s home. The majority relies upon the Supreme Court‘s holding in Kriston, but that decision is unavailing: the Supreme Court in Kriston was construing the term “imprisonment” which connotes confinement in an institution. The Superior Court‘s decision in
, is similarly of no help because the Superior Court was construing the term “custody” under Section 9760 of the Sentencing Code, as amended, 42 Pa. C.S. § 9760, which the court interpreted as confinement in prison. For the forgoing reasons, I respectfully dissent.2

Notes

1
Petitioner lost two months and twenty-one days, modifying the maximum expiration date of his sentence to August 2, 2000. (R. at 28). Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, 61 P.S. § 331.21a(a).
2
Petitioner was released to the Alle-Kiski Pavilion, a community corrections center, where he stayed and participated in a drug and alcohol treatment program from June 1, 1998, until he completed the program on September 24, 1998. Thereafter, Petitioner was subject to home monitoring. With regard to the majority‘s discussion of backtime, I note that the issues raised and briefed by Petitioner relate only to credit against his maximum sentence. The concept of backtime, by contrast, relates to when a recommitted parole violator will again be eligible for parole, which is in effect a recomputed minimum sentence.
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3
The Board‘s order dated June 26, 2000, provides: Refer to Board action of 11-3-99 to recommit to a state correctional institution as a technical parole violator to serve 15 months backtime; and now recommit as a convicted parole violator to serve twelve months concurrently for a total of 15 months backtime. (R. at 78).
4
Our scope of review of a Board‘s recommittal order is limited to determining whether necessary findings were supported by substantial evidence, whether error of law was committed, or whether constitutional rights were violated.
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5
During this time period, Petitioner stayed at a community corrections center and was enrolled in a drug and alcohol treatment program.
6
During this time period, Petitioner had completed the treatment program and was placed on house arrest until he was declared delinquent on December 1, 1998.
7
The time period of one month and eleven days refers to the period between July 2, 1996, the date Petitioner was paroled, to August 13, 1996, the effective date Petitioner was declared delinquent.
8
See
(evidence supported Board‘s refusal to credit recommitted parole violator with time spent in an in-patient drug and alcohol treatment program against his maximum term expiration date as the hospital was not a secure facility and the parolees were not treated differently from other patients with the exception that the hospital would notify the parole authorities if a parolee left the hospital before completing the program).