             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daryl S. Provance,                             :
                             Petitioner        :
                                               :
                     v.                        :   No. 547 C.D. 2017
                                               :   Submitted: January 12, 2018
Pennsylvania Board of Probation                :
and Parole,                                    :
                        Respondent             :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: March 15, 2018


       Before us is yet another challenge to a Pennsylvania Board of Probation and
Parole (Board) decision denying a convicted parole violator (CPV) credit for time
spent at a community corrections center1 (CCC) on the ground the restrictions there
are not the equivalent of incarceration despite pre-release inmates at the same facility
receiving credit against their sentences.          In this latest case, Daryl Provance
(Provance) petitions for review of an April 19, 2017 decision of the Board (April
Decision), which affirmed the Board’s decision mailed July 22, 2016 (July Decision)
that denied Provance credit against his maximum sentence for more than a year he

       1
          The Prisons and Parole Code (Parole Code) defines “community corrections center” as
“[a] residential program that is supervised and operated by the [D]epartment [of Corrections].”
Section 5001 of the Parole Code, 61 Pa. C.S. § 5001.
spent at Gateway Braddock Community Corrections Center (Gateway). On appeal,
Provance argues that since pre-release inmates get credit towards their sentences for
time spent at Gateway, parolees, such as himself, should also get credit for time spent
there since pre-release inmates and parolees are subject to the same constraints.
Although Provance offers a compelling argument, based upon this Court’s binding
precedent, we are constrained to affirm.


I.    Factual Background
      The relevant facts of this case are not in dispute. While serving an 8 year, 10
month- to 25-year aggregated sentence for aggravated assault and terroristic threats,
the Board granted Provance parole on June 1, 2010. At the time, his parole violation
maximum date was June 29, 2025. In January 2012, after testing positive for
controlled substances and following an administrative conference with his parole
agent, he was instructed to complete the Halfway Out Program at Progress
Community Corrections Center.2 Upon his successful completion of the program,
he was transferred to Gateway. He resided at Gateway from May 7, 2012 until June
26, 2013.
      In December 2014, Pennsylvania State Police at Uniontown arrested Provance
on a variety of new charges, including driving under the influence, aggravated
assault, and recklessly endangering another person. Following his conviction on
these new charges, the Board recommitted Provance as a CPV and recalculated his
parole violation maximum date to November 26, 2029.




      2
          Provance received credit for the time he spent at this facility.


                                                   2
      Provance filed a pro se administrative appeal challenging, inter alia, the
recalculation of his maximum date. The Board scheduled an evidentiary hearing to
determine whether he was entitled to credit for the time he resided at Gateway.
      At the hearing, Provance, now represented by counsel, testified on his own
behalf. He testified that Gateway houses both parolees and pre-release inmates and
that both are governed by the same rules and regulations. He also testified that he
was attempting to obtain Supplemental Security Income (SSI) but was denied
because he was a resident of Gateway. In addition, Provance presented three
photographs depicting the physical layout of Gateway, including what he described
as a fenced-in area. On cross-examination by his parole agent, Provance admitted
that, if he was physically able to work, he would have been permitted to leave
Gateway to look for work. He also acknowledged he was allowed to leave for
medical and other appointments without being escorted or accompanied by anyone
at Gateway. According to Provance, he was permitted to go out and come back as
he pleased; all he had to do was fill out a paper with a phone number stating where
he was going and a time. He further admitted that nothing prevented him from
leaving Gateway if he wanted to leave, he could just push any door open and go
outside, and that the area he claimed was fenced in did have an open area for vehicles
to drive in and out, which residents could likewise access from the recreational area.
      Jeffrey Filia, assistant director of operations at Gateway, testified for the
parole agent. He disagreed that there was no difference between parolees and pre-
release inmates. He explained that pre-release inmates are residents who came to
Gateway from a state correctional institution and are still serving their sentences.
According to Mr. Filia, their supervision is “very intense.” (Hr’g Tr. at 29, Certified
Record (C.R.) at 206.) If a pre-release inmate fails to return to Gateway or leaves



                                          3
without authorization, it is considered an escape. By contrast, Mr. Filia explained
that parolees would be absconding and the Board would be notified. Mr. Filia
confirmed that although there is a fence, there is an opening to the parking lot. He
said the same area is used for recreation and residents are free to walk in and out.
Mr. Filia explained that if a resident attempts to leave, Gateway has “a strict hands-
off policy,” meaning that while staff will attempt to try to talk the resident out of
leaving, staff will not physically stop the resident. (Hr’g Tr. at 31-32, C.R. at 208-
09.) Mr. Filia testified that residents are permitted between six to eight hours per
day to search for employment, and although they are “asked to provide some sort of
accountability as to where they [are] going,” Gateway does not check up on the
person unless there is some reason to doubt the person’s truthfulness. (Hr’g Tr. at
32-34, C.R. at 209-11.) According to Mr. Filia, Gateway is “not a prison facility.
[It is] a correctional facility. . . . [T]here are no barriers on the doors. There are no
barriers on the windows. Each resident is free to come and go as they [sic] please,
without us hindering their [sic] direction.” (Hr’g Tr. at 34, C.R. at 211.)
      Following the hearing, the Board issued its July Decision, denying Provance
credit for his time at Gateway. The Board found, as follows:

      There was sufficient testimony that [Gateway] was not a secure facility.
      The doors were not locked to prevent residents from leaving and the
      windows were not barred closed. Residents could choose to exit the
      building . . . without permission and staff were prohibited from stopping
      them. Additionally, there were several exits that residents could exit
      the building by merely pushing on the push bar. Residents were
      permitted signout liberties for employment, community service, social
      passes, job searches, medical, and a variety of other appointments.
      Staff did not escort nor follow residents while they were in the
      community. Staff were also prohibited from physically preventing
      residents from leaving. Although a partial fence was around the
      parking area, this area was also the recreation area and residents could
      enter into and exit this area at will.


                                           4
(July Decision at 2, C.R. at 219.)
       Based upon these findings, the Board concluded that “Provance did not meet
the burden of proving that [Gateway] was the equivalent of incarceration and should
not be awarded credit for his backtime.” (Id. at 3, C.R. at 220.)
       Provance filed another administrative remedies form seeking review of the
July Decision. The appeal panel agreed with the Board’s findings in its July
Decision and affirmed. (April Decision, C.R. at 225.) This appeal followed.3


II.    Parties’ arguments
       On appeal, Provance argues that he should have received credit for the time
he spent at Gateway because his time spent there was the equivalent of incarceration.
Specifically, he argues that while at Gateway, he was subjected to the same
constraints on his liberty as pre-release inmates, and if these inmates were
incarcerated for the purposes of serving their sentences, he similarly should be
considered incarcerated. Counsel for Provance acknowledges that the case law is
not favorable to his client but requests the Court reconsider its past holdings.
       The Board responds that it did not act arbitrarily and appropriately exercised
its discretion when it decided Provance was not entitled to credit for his time at
Gateway. It argues there was sufficient testimony to establish that parolees at
Gateway were not confined in any way, and certainly not in a manner sufficient to
constitute the equivalent of incarceration.




       3
          On appeal, our “review is limited to determining whether constitutional rights were
violated, whether the adjudication was in accordance with law, and whether necessary findings
were supported by substantial evidence.” Miskovitch v. Pa. Bd. of Prob. and Parole, 77 A.3d 66,
70 n.4 (Pa. Cmwlth. 2013).


                                              5
III.   Analysis
       Section 6138(a)(2) of the Prisons and Parole Code (Parole Code) provides that
parolees who are 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 . . . shall be given no credit for the time at liberty on parole.”
61 Pa. C.S. § 6138(a)(2). The Parole Code does not define “at liberty on parole,”
but our Supreme Court provided guidance in the seminal case, Cox v. Pennsylvania
Board of Probation and Parole, 493 A.2d 680 (Pa. 1985). In Cox, the Pennsylvania
Supreme Court explained that the parolee bears the burden of showing that the
specific facility had sufficient restrictions on his liberty to warrant time credit. Id.
at 683. In that case, the Supreme Court found the record was insufficient to
determine “whether the restrictions on [the parolee’s] liberty [at the facility] were
the equivalent of incarceration” and remanded for development of the factual
record.4 Id. The Supreme Court further cautioned that a court reviewing the Board’s
determination should not interfere with that decision unless the Board acts arbitrarily
or plainly abuses its discretion. Id.
       Each claim for time credit is to be evaluated on a case-by-case basis. Torres
v. Pa. Bd. of Prob. and Parole, 861 A.2d 394, 397 (Pa. Cmwlth. 2004). Yet, since
Cox, our Court has further defined the parameters of the “equivalent of
incarceration” standard. For instance, we have stated “[t]he most important factors
are ‘whether the patient, or resident, is locked in and whether the patient may leave
without being physically restrained.’” Figueroa v. Pa. Bd. of Prob. and Parole, 900


       4
         Although Cox involved an in-patient hospital drug treatment program, we have applied
the “equivalent of incarceration” standard to other types of facilities, including CCCs. See, e.g.,
Figueroa v. Pa. Bd. of Prob. and Parole, 900 A.2d 949 (Pa. Cmwlth. 2006); Wagner v. Pa. Bd. of
Prob. and Parole, 846 A.2d 187 (Pa. Cmwlth. 2004).


                                                6
A.2d 949, 952 (Pa. Cmwlth. 2006) (quoting Detar v. Pa. Bd. of Prob. and Parole,
890 A.2d 27, 31 (Pa. Cmwlth. 2006)). Those factors were recently reaffirmed in
Medina v. Pennsylvania Board of Probation and Parole, 120 A.3d 1116, 1120-21
(Pa. Cmwlth. 2015). Furthermore, in Harden v. Pennsylvania Board of Probation
and Parole, we stated:

      Facilities are not prison-like if they lack fences or have fences with
      gates that open from the inside; have doors and windows locked from
      the outside, not the inside, to prevent entry not exit; lack guards
      stationed to prevent residents from leaving; and do not attempt to use
      physical force by staff members to stop an inpatient from leaving.

980 A.2d 691, 699 (Pa. Cmwlth. 2009).
      Far more often than not, we have found the characteristics of a particular
program or facility are not restrictive enough to constitute the “equivalent of
incarceration.” See Medina, 120 A.3d at 1119-20 (reciting both reported and
unreported decisions regarding same). Provance recognizes that the deck is stacked
against him yet persuasively argues that when pre-release inmates serving their
sentences at the same facilities under the same terms and conditions of
confinement are receiving credit towards their sentences, parolees, such as himself,
should similarly receive time credit.
      Unfortunately for Provance, this Court has repeatedly rejected this exact same
argument on a number of occasions. See id. at 1122 (listing such cases). In doing
so, this Court has frequently cited one distinction between pre-release inmates and
parolees: pre-release inmates who leave a facility without permission and do not
return are charged with the crime of escape by the police, whereas parolees who
leave a facility without permission and do not return are charged with violating the
terms of their parole by their parole agent. See, e.g., Wagner v. Pa. Bd. of Prob. and



                                          7
Parole, 846 A.2d 187 (Pa. Cmwlth. 2004); Meehan v. Pa. Bd. of Prob. and Parole,
808 A.2d 313 (Pa. Cmwlth. 2002).
      Provance’s arguments have not gone unnoticed, though. On a number of
occasions, various members of this Court have questioned the logic of denying a
parolee credit for time spent at a facility under the same conditions as a pre-release
inmate at the same facility. Former Judge Friedman foresaw this issue in Torres. In
her concurring opinion, she noted that “inmates serving sentences of incarceration
always receive credit for time spent in CCC residency programs.” 861 A.2d at 402
(Friedman, J., concurring) (emphasis in original). Because a pre-release inmate who
is not on parole is considered incarcerated when residing at a CCC, she reasoned that
parolees can satisfy their burden of proof under Cox by “present[ing] evidence to
establish that the restrictions on liberty are identical for parolees and inmates at a
CCC.”5 Id. As for the distinction that pre-release inmates are charged with escape
for leaving a CCC when parolees are not, Judge Friedman thought the distinction
was irrelevant to whether the individual should receive time credit. She explained
that the relevant standard “under Cox is whether the specific characteristics of the
program restrict liberty to such an extent that residency in the program is the
equivalent of incarceration.” Id. at 403 (emphasis in original). “[T]he result of such
thinking is that parolees can never receive credit for time spent in a CCC because
parolees can never be charged with escape.” Id. (emphasis in original). Judge
Friedman reiterated her view that “if pre-release inmates receive credit for their time
[at a facility], then parolees should receive credit” in Rodriguez v. Pennsylvania




      5
          Provance advocates for adoption of Judge Friedman’s position.



                                               8
Board of Probation and Parole (Pa. Cmwlth., No. 200 C.D. 2008, filed Aug. 12,
2008) (Friedman, J., dissenting), slip op. at 4.6
       On more than one occasion, now-Senior Judge Pellegrini has been a vocal
opponent of treating pre-release inmates differently than parolees in terms of
receiving credit for time spent at a CCC under identical restraints. See, e.g., Medina,
120 A.3d at 1128 (Pellegrini, P.J., dissenting) (“It simply is illogical to say that one
person who is in a community corrections facility receives credit because that person
has the status as an inmate, and another person who is required to live at the facility
under the same conditions as an inmate does not.”); Harden, 980 A.2d at 708
(Pellegrini, J., dissenting) (“Because prisoners and parolees are subject to the same
level of confinement and the same rules, and prisoners are given credit for time spent
in these facilities, it would be irrational to hold that a stay at the facility is not the
‘equivalent of incarceration’ when the Department of Corrections has determined
that it is incarceration.”) Senior Judge Pellegrini has likewise found it irrelevant that
parolees are not charged with escape. Harden, 980 A.2d at 703-04. In his dissent
to Medina, he wrote it was inappropriate for this Court to act as “arbiter of what is a
prison,” which is what it is doing when it considers the various factors. 120 A.3d at
1127-28 (Pellegrini, P.J., dissenting). Judge McCullough and the undersigned
joined in then-President Judge Pellegrini’s dissent in Medina.
       For the same reasons set forth by then-President Judge Pellegrini in his dissent
to Medina, similar discontent with this issue was expressed most recently in Johnson
v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 2009 C.D. 2015,
filed July 18, 2016), petition for allowance of appeal denied, 169 A.3d 1023 (Pa.

       6
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, unreported
panel decisions issued by this Court after January 15, 2008 may be cited for their persuasive value
but not as binding precedent. 210 Pa. Code § 69.414(a).


                                                9
2016). However, given “this Court’s binding decision in [Medina,]” the majority
was constrained to affirm. Id., slip op. at 9 n.6.
       Until this Court revisits its prior holdings or the Supreme Court reverses this
Court, we are, likewise, constrained here. The Board found that the doors and
windows at Gateway were not secured; anyone could leave the program at any time;
although there was a fence, it was only partial; residents could leave the facility
unsupervised for appointments and to conduct job searches; and staff could not
physically restrain anyone attempting to leave.7 There is substantial evidence to
support these findings. In fact, Provance admitted these facts. These findings
support the Board’s determination that Provance is not entitled to credit under Cox
and its progeny for the time period he resided at Gateway because the conditions
there were not sufficiently restrictive so as to be the “equivalent of incarceration.”


IV.    Conclusion
       Because the Board did not act arbitrarily or plainly abuse its discretion when
it denied Provance credit for the time he spent at Gateway, its Decision is affirmed.




                                             _____________________________________
                                             RENÉE COHN JUBELIRER, Judge




       7
         Although these conditions apply with equal force to both pre-release inmates, who receive
credit towards their sentences, and parolees, like Provance, who do not, as discussed above, our
precedent views them differently.


                                               10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daryl S. Provance,                        :
                          Petitioner      :
                                          :
                     v.                   :   No. 547 C.D. 2017
                                          :
Pennsylvania Board of Probation           :
and Parole,                               :
                        Respondent        :


                                       ORDER


      NOW, March 15, 2018, the Decision of the Pennsylvania Board of Probation
and Parole, entered in the above-captioned matter, is AFFIRMED.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
