           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Wayne Sides,                :
                Petitioner          :
                                    :
            v.                      : No. 725 C.D. 2016
                                    : SUBMITTED: December 2, 2016
Pennsylvania Board of Probation and :
Parole,                             :
                 Respondent         :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JULIA K. HEARTHWAY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                            FILED: April 12, 2016


              Anthony Wayne Sides petitions for review of the April 13, 2016,
decision of the Pennsylvania Board of Probation and Parole (Board), which
affirmed the Board’s decision mailed October 30, 2015, denying Sides credit on
his original sentence for the time he spent while on parole at the Gaudenzia First
Program, a community contract facility in Philadelphia (Gaudenzia).1 We affirm.


              Sides was originally sentenced to two-to-four years of incarceration
for a probation violation and criminal conspiracy to commit first degree murder.


       1
       Gaudenzia is a private entity that contracts with the Department of Corrections, Bureau
of Community Corrections to house and treat parolees.
Sides’ maximum release date was set at October 24, 2014. On November 20,
2012, the Board paroled Sides to reside at Gaudenzia with the condition of
successful completion of the program at Gaudenzia. Sides resided at Gaudenzia
from November 20, 2012 until March 26, 2013.                  On March 26, 2013, Sides
completed the program at Gaudenzia and moved to an approved residence.


              On May 11, 2014, Sides was arrested and placed into the Chester
County Prison. On that same date, the Board filed an order to detain Sides for 48
hours. On May 12, 2014, the Board issued a warrant to commit and detain Sides.
On June 24, 2014, the Board, after a preliminary parole hearing, issued an order to
detain Sides pending disposition of his criminal charges. Thereafter, Sides pled
guilty to possession of an instrument of crime, unlawful restraint, and simple
assault.     On July 18, 2014, Sides was sentenced to two-to-four years of
incarceration. On September 2, 2014, Sides waived his revocation hearing before
the Board. By decision mailed November 7, 2014, the Board recommitted Sides as
a convicted parole violator (CPV) to serve 18 months backtime with no credit for
his time at liberty on parole. Sides’ maximum release date was set at September 4,
2016.2


              On December 1, 2014, Sides filed a request for an administrative
review, seeking credit for the time he resided at Gaudenzia. The Board scheduled
an evidentiary hearing for October 15, 2015, at which Sides testified regarding his

         2
         The Board noted that this case is not moot because, even though Sides’ maximum
release date has passed, the time credited is relevant to when he begins serving the sentence on
his new criminal charges.



                                               2
time at Gaudenzia from November 20, 2012, to March 26, 2013. A counselor at
Gaudenzia also testified regarding the facility and Sides’ time there.


              Following the hearing, the Board found that “Sides was not a resident
of a secure facility during the requested time credit period. . . .” (Board Decision,
F.F. No. 1, at 2.) The Board further found that “Gaudenzia . . . did not detain Sides
or refuse Sides’ right to depart the facility under his own power.” (Id.)

              The facility did not restrict Sides’ ability to leave because
              residents were not locked in their rooms, the doors were
              not locked from the inside going to the outside area and
              residents were permitted to leave the facility for
              approved periods without escort or restraints. There was
              no fence around the facility nor were there bars on
              windows and/or doors. Sides verified that while he was a
              resident, he routinely signed out on passes.

(Id., F.F. No. 2, at 2.)       The Board in its decision mailed October 30, 2015,
concluded that Sides’ request for credit for his time at Gaudenzia was
“unsubstantiated and without merit” and denied his request. (Id., C.L. No. 4, at 2.)
Sides appealed.


              On April 13, 2016, the Board’s appeal panel found no grounds to
grant administrative relief and affirmed the Board’s October 30, 2015 decision.
Sides now petitions this Court for review.3



       3
          This Court’s review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.



                                               3
              Section 6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa. C.S.
§ 6138(a)(2), provides that a parolee who is recommitted as a CPV “shall be
reentered to serve the remainder of the term which the parolee would have been
compelled to serve had the parole not been granted and, except as provided under
paragraph (2.1), shall be given no credit for the time at liberty on parole.”4 The
term “at liberty on parole” is not defined in the Code. Our Supreme Court has
determined that it is the parolee’s burden to establish that the restrictions he was
under while “at liberty on parole” were the equivalent of incarceration, thus,
entitling him to credit. Cox v. Pennsylvania Board of Probation and Parole, 493
A.2d 680, 683 (Pa. 1985).


              This Court has repeatedly held that parolees are not entitled to credit
for time they have resided in community corrections centers, community
corrections facilities, or inpatient treatment programs where the Board determined
that the parolees failed to meet their burden of proving that the restrictions on their
liberty were the equivalent of incarceration. Medina v. Pennsylvania Board of
Probation and Parole, 120 A.3d 1116, 1119 (Pa. Cmwlth. 2015). In determining
whether a facility’s restrictions are equivalent to incarceration, this Court has
considered the structural conditions of the facility, the rules of the facility, whether
the facility was locked, whether a parolee could leave unescorted, whether a
parolee would be prevented from leaving the facility, whether a parolee would be
treated as an absconder or an escapee if he left the facility, and whether the facility

       4
         Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2.1),
provides that “[t]he [B]oard may, in its discretion, award credit to a parolee recommitted under
paragraph (2) for the time spent at liberty on parole ….”



                                               4
had a fence. Id. at 1119-20. However, the most important factors are: (1) whether
the facility is locked or secured; and (2) whether a parolee is able to leave the
facility without being restrained or escorted. Meleski v. Pennsylvania Board of
Probation and Parole, 931 A.2d 68, 73 n. 4 (Pa. Cmwlth. 2007). A reviewing
court may “not interfere with the Board’s determination of that issue unless it acts
arbitrarily or plainly abuses its discretion.” Cox, 493 A.2d at 683; see Jackson v.
Pennsylvania Board of Probation and Parole, 568 A.2d 1004, 1006 (Pa. Cmwlth.
1990).


             Here, Sides argues that Gaudenzia was sufficiently restrictive to be
considered incarceration. Specifically, Sides asserts that upon arrival at Gaudenzia
he had to be buzzed into the facility by a receptionist, and was met by staff,
searched, and given the rules and regulations of the facility. While a resident,
Sides further contends he was not permitted to leave until he reached a certain
level, was mandated to attend morning meetings, and was subject to head-counts
and being observed on monitors placed throughout the building.


             The Board, however, found that Gaudenzia: (1) was not a secure
facility; (2) did not detain or refuse Sides’ right to depart the facility under his own
power; (3) did not restrict Sides’ ability to leave; (4) did not lock any resident in
his room; (5) did not lock doors from the inside going outside; (6) permitted
residents to leave for approved periods without escorts or restraints; (7) did not
have a fence around the facility, or bars on the windows and doors; and (8)




                                           5
routinely permitted Sides to sign out on passes.5 (Board Decision, 10/30/15, F.F.
Nos. 1-2.)     The Board determined that Gaudenzia does not have sufficient
custodial aspects to characterize the time spent there as confinement rather than at
liberty.   A careful review of the testimony, including Sides’ own statements,
provide substantial evidence to support the Board’s finding.


              Accordingly, because the Board has not acted arbitrarily or abused its
discretion, we affirm.




                                          __________________________________
                                          JULIA K. HEARTHWAY, Judge




       5
         The record reflects that Sides was permitted to leave Gaudenzia, and did so on many
occasions starting December 3, 2012. (Supp. C.R. at 25a.) The record also reflects that Sides
could have left anytime he chose, but that he did not leave the facility for 13 days, from
November 20 to December 3, 2012.


                                             6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Wayne Sides,                :
                Petitioner          :
                                    :
            v.                      : No. 725 C.D. 2016
                                    :
Pennsylvania Board of Probation and :
Parole,                             :
                 Respondent         :


                                 ORDER


             AND NOW, this 12th day of April, 2017, the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter is
affirmed.




                                   __________________________________
                                   JULIA K. HEARTHWAY, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Wayne Sides,                     :
                Petitioner               :
                                         :
             v.                          :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 725 C.D. 2016
                  Respondent             :   Submitted: December 2, 2016



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                            FILED: April 12, 2017

             This is not the first time this Court has addressed questions of whether
time spent in the Gaudenzia First program while on parole may be credited to the
parolee. In Meleski v. Pennsylvania Board of Probation and Parole, 931 A.2d 68
(Pa. Cmwlth. 2007), a case relied upon by the majority to support a portion of its
decision, this Court found the parolee eligible for credit for his time at Gaudenzia
prior to his taking a test for “phase two” status. In the present case, the Board’s
witness, Louise King, a Gaudenzia counselor, testified that Gaudenzia has in place
a “level system, and that an offender has to reach a certain level before they [sic]
can leave the facility.” (Brief of Respondent at 7.) According to Ms. King, “she
believed it took Sides two weeks to get to level one, and at that level, Sides could
leave the facility with a pass.” Id.
             Mr. Sides experienced, at least in his initial phase, sufficient
restriction in the same rehabilitation entity as the Meleski petitioner, to find that he
was “not at liberty on parole.” As the Board was wrong in its assessment of the
Gaudenzia restrictions in Meleski, it is wrong here as well. Since the majority
finds otherwise, I must dissent.




                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




                                        JMC-2
