       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kevin Johnson,                         :
                        Petitioner     :
                                       :
                  v.                   :   No. 2009 C.D. 2015
                                       :   Submitted: March 18, 2016
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                    FILED: July 18, 2016


      Kevin Johnson (Johnson) petitions for review of the September 29, 2015
Decision of the Pennsylvania Board of Probation and Parole (Board), which
affirmed the Board’s decision mailed July 16, 2015 (July Decision) that denied
Johnson credit on his original sentence for the time he spent at ADAPPT
Treatment Services (ADAPPT), a halfway house.          The July Decision also
reiterated that Johnson’s new parole violation maximum date of July 7, 2017, is
correct. On appeal, Johnson argues that the Board erred in denying him credit on
his original sentence with the time he spent at ADAPPT on parole, pursuant to Cox
v. Pennsylvania Board of Probation and Parole, 493 A.2d 680 (Pa. 1985), because
the conditions were the functional equivalent of incarceration.      The Board
concluded that Johnson did not meet his burden of proof entitling him to credit
under Cox. Because we conclude that the Board did not act arbitrarily or plainly
abuse its discretion in deciding that Johnson was not entitled to credit for the
period of time he resided at ADAPPT, we affirm.


I.      Background
        Johnson was sentenced to an aggregate term of four to eight years in a state
correctional institution (SCI) after pleading guilty to three counts of Drug
Manufacture, Sale, Delivery, or Possession with Intent to Deliver a Controlled
Substance; one count of Resisting Arrest; and one count of Violation of Probation
– Resisting Arrest.     (Sentence Status Summary, C.R. at 1, 3.)           His original
maximum date was set as November 29, 2015. (Id.) On October 9, 2012, Johnson
was released on parole to ADAPPT, subject to certain special conditions, and
resided there until November 28, 2012. (Evidentiary Hearing Report, C.R. at 105-
06; see also Conditions Governing Parole, C.R. at 30-31, 33-34.) Following his
release from ADAPPT, Johnson remained at liberty on parole until August 30,
2013.
        On August 30, 2013, Johnson was arrested by the Reading City Police
Department on new criminal charges1 and confined in Berks County Prison.
Johnson was unable to post bail on the charges. (C.R. at 78.) The Board issued a
warrant to commit and detain Johnson the same day. (C.R. at 35.) The Board
detained Johnson pending disposition of the criminal charges via decision recorded


        1
         The new charges were: Delivery of a Controlled Substance – Marijuana; Possession
with Intent to Deliver a Controlled Substance; and Possession of a Controlled Substance –
Marijuana. The latter two charges were dismissed subsequently. (C.R. at 48.)

                                           2
on October 16, 2013. On January 9, 2014, Johnson pleaded guilty to one count of
Manufacture, Delivery, or Possession with Intent to Deliver – Marijuana, and the
Berks County Court of Common Pleas sentenced him to two to five years’
confinement in a SCI. (C.R. at 39-40, 43.) Johnson was placed in SCI-Graterford
on January 21, 2014. (Moves Report, C.R. at 88.)
       The Board thereafter conducted a parole revocation hearing on April 25,
2014. (Hearing Report, C.R. at 57.) By Board decision mailed June 9, 2014,
Johnson was recommitted as a convicted parole violator (CPV) to serve 12 months
backtime and was not given credit for time he spent at liberty on parole. (Order to
Recommit, C.R. at 89; Board Decision, C.R. at 91.) At that time, Johnson owed
1,146 days on his original sentence. (Order to Recommit, C.R. at 89.) Adding
1,146 days to Johnson’s return to custody date of May 18, 2014,2 resulted in a new
maximum date of July 7, 2017. (Id.)
       On July 7, 2014, Johnson filed a Petition for Administrative Review of the
Board’s June 9, 2014 decision recommitting him as a CPV to serve 12 months
backtime and recalculating his parole violation maximum date as July 17, 2017.
(C.R. at 93-94.)       In the petition, Johnson argued that the Board erred in
recalculating his new maximum date because it failed to award proper credit for
the period of time Johnson resided at ADAPPT. (C.R. at 94-95.)3 By letter mailed


       2
          By decision recorded March 30, 2015, Johnson was paroled to a state detainer sentence
and was ordered to “complete any remaining required correctional program(s) from [his] current
sentence.” (C.R. at 125-28, 130.)
        3
          Specifically, Johnson argued that the Board erroneously added 11 extra months to his
original sentence. (C.R. at 94.) Johnson contended that credit only should have been denied for
the approximately nine months from December 2012 to August 30, 2013 he was at liberty on
parole following his release from ADAPPT. (C.R. at 95.) Thus, Johnson requested credit for the
approximately 50 days he spent at ADAPPT.

                                              3
December 12, 2014, the Board indicated that an evidentiary hearing would be
scheduled to determine whether Johnson was entitled to any credit for his time
spent at ADAPPT. (Board Letter to Johnson (December 12, 2014), C.R. at 101.)
The hearing was held on February 24, 2015. (C.R. at 102.)
      At the hearing, Johnson testified that he was sent to ADAPPT from October
9, 2012 to November 28, 2012. Johnson testified that there was no fence around
the facility, the doors locked from both the inside and outside, and the windows
were nailed shut. (Hr’g Tr. at 8.)4 Johnson stated that residents had to submit to
urine tests and pat-down searches and stand for count. (Hr’g Tr. at 8-9.) He
testified that he was housed with some pre-release inmates from the Department of
Corrections, but that most of the residents were on state parole. (Hr’g Tr. at 8.) He
stated that the pre-release inmates were subject to mostly the same stipulations as
parolees, though pre-release inmates could get furloughs for an entire weekend.
(Hr’g Tr. at 9-10.) Johnson testified that he was allowed to go out and look for
work, like pre-release inmates, and that he had to attend certain programs in order
to receive passes to obtain the privilege. (Hr’g Tr. at 9-10.) Johnson further
testified that his family could visit him in ADAPPT’s visiting room, and that he
could go and visit them for a certain number of hours. (Hr’g Tr. at 10.)
      William George (George), an ADAPPT Supervisor, testified that there is no
fence around the ADAPPT facility, the doors lock from the outside only, and there
is nothing stopping the residents from leaving the facility. (Hr’g Tr. at 12-13.)
George testified that ADAPPT staff can only ask residents not to leave, but that
residents could walk out on their own. (Hr’g Tr. at 13.) On cross-examination by
Johnson’s counsel, George testified that the pre-release inmates housed at

      4
          The hearing transcript can be found on pages 108-124 of the certified record.

                                                 4
ADAPPT were “under the same rules and regulations, except for the A[lcohol] and
D[rug] part.” (Hr’g Tr. at 14.) George stated “[t]hat’s where they get locked in
24/7 and they’re not allowed out. If you’re in the group home, you’re allowed out
for a certain amount of time during the day to go to your job and things like that.”
(Hr’g Tr. at 14.) George testified that both parolees and pre-release inmates were
subject to random searches. (Hr’g Tr. at 14-15.)
      Based on this testimony, the Board in its July Decision found that ADAPPT
did not restrict Johnson’s ability to leave the program because the doors were
locked only from the outside to prevent people from entering the building, and
ADAPPT staff would not restrain or detain any residents from leaving without
authorization. (July Decision, Finding of Fact (FOF) ¶ 3.) Additionally, the Board
found that there was no fence around the facility to prevent Johnson from leaving
at any time. (Id.) Lastly, the Board found that “given the proper privileges
through treatment attendance, all [residents] could walk in the community within
certain timeframes.” (Id.) The Board concluded that the restrictions on Johnson’s
liberty while he resided at ADAPPT were not the equivalent of incarceration and,
therefore, Johnson did not meet his burden of proof entitling him to credit under
Cox, 493 A.2d at 683.      (July Decision, Conclusions of Law (COL) ¶¶ 2-4.)
Accordingly, the Board denied Johnson credit for the time he spent at ADAPPT.
      Johnson filed an Administrative Remedies Form on July 30, 2015,
challenging the Board’s denial of credit on his original sentence for the time he
spent at ADAPPT. (Administrative Remedies Form, C.R. at 135-36.) In his
appeal, Johnson argued that he met his burden under Cox and proved that his time
at ADAPPT was the equivalent of incarceration because: (1) “he was confined
there with . . . [p]re-[r]elease [i]nmates serving their sentences under [] identical


                                         5
constraints and conditions”; and (2) “he was subjected to suspicion-less searches of
his person and property, which can only be done to prison inmates.” (Id. at 2, C.R.
at 136.) By decision mailed September 29, 2015, the Board denied the appeal and
affirmed its July 16, 2015 decision. (Board Decision, C.R. at 137-38.) This appeal
followed.5


II.    Discussion
       On appeal, Johnson argues that the Board failed to credit his parole violation
maximum date with all the time to which he was entitled when it determined that
he was at liberty on parole while he resided at ADAPPT. Johnson argues that he
met his burden of proving that his liberty was sufficiently restrained at ADAPPT
such that it was the functional equivalent of incarceration. Johnson contends that
the restrictions on his liberty were at least the same as, or greater than, the
restrictions on the pre-release inmates who also resided at ADAPPT because he
was subject to the same rules and regulations as those inmates, and he was subject
to random suspicion-less searches of his person and property. Johnson requests,
just as the parolee did in Medina v. Pennsylvania Board of Probation and Parole,
120 A.3d 1116 (Pa. Cmwlth.), petition for allowance of appeal denied, 123 A.3d
1293 (Pa. 2015), that this Court revisit our decision in Torres v. Pennsylvania
Board of Probation and Parole, 861 A.2d 394, 401 (Pa. Cmwlth. 2004) (Friedman,
J., concurring), “and hold, consistent with the Torres concurrence, that the
parolee’s burden is satisfied when he establishes that he suffered at least the same

       5
          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).

                                             6
restrictions as pre-release inmates serving a state sentence at the same treatment
facility.” (Johnson’s Br. at 13.) Johnson thus argues that his time at ADAPPT was
the functional equivalent of incarceration and not subject to forfeiture after his
subsequent recommitment as a CPV.
       The Board responds that it did not act arbitrarily or plainly abuse its
discretion by deciding that Johnson was not entitled to credit for the period he
resided at ADAPPT Treatment Services. Based on the testimony offered at the
evidentiary hearing, the Board found that: anyone could leave ADAPPT at any
time; there was no fence around the facility to prevent residents from leaving;
residents could come and go within certain timeframes; and, staff members did not
prevent residents from leaving. Thus, the Board argues, those factors support a
determination that Johnson’s time at ADAPPT was not the equivalent of
incarceration, and there is no new basis to overrule this Court’s decision in
Medina.


III.   Analysis
       Section 6138(a)(2) of the Parole Code provides that a parolee who is
recommitted as a CPV, as Johnson was here, “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.” However, our Supreme Court has held that “at liberty” does not mean
freedom from all types of confinement. Cox, 493 A.2d at 683. A CPV who seeks
credit on his original sentence for time spent in a halfway house or group home
bears the burden of showing that the specific characteristics of a program


                                          7
constitute restrictions on the parolee’s liberty sufficient to warrant credit. Id. at
683. In our recent decision in Medina, we reiterated the two most important
factors to be considered in determining whether a halfway house is sufficiently
restrictive so as to be equivalent to incarceration: (1) whether the resident is
locked in; and (2) whether the resident is able to leave the facility without being
physically restrained. Medina, 120 A.3d at 1120-21. These matters are evaluated
on a case-by-case basis, Torres, 861 A.2d at 397, and this Court “will not interfere
with the Board’s determination . . . unless it acts arbitrarily or plainly abuses its
discretion,” Cox, 493 A.2d at 683.
      Despite the foregoing principles, Johnson requests that this Court adopt the
analysis in the concurring opinion in Torres and hold that he established his burden
because he suffered at least the same restrictions as pre-release inmates at the same
facility, including being subject to random suspicion-less searches. See Torres,
861 A.2d at 402 (Friedman, J., concurring). In Torres, this Court held that the
parolee was entitled to credit for the first 45 days spent at the Conewago-
Wernersville inpatient drug and alcohol rehabilitation facility because during that
time period, the parolee was not permitted to go anywhere outside the facility
except to drug and alcohol rehabilitation or other weekly meetings, to which he
was escorted by a staff member. Torres, 861 A.2d at 399-400. In so holding, this
Court stated that “when the restrictions upon a parolee become such that they
destroy any sense of being ‘at liberty on parole’ and, consequently, meet the Cox
standard,” credit should be given. Id. at 401. In the concurring opinion in Torres
however, Judge Friedman recognized that pre-release inmates residing in such
treatment centers always receive credit for their stay. Torres, 861 A.2d at 402
(Friedman, J., concurring). Thus, Judge Friedman posited that parolees should be


                                         8
able to meet their burden under Cox by proving that the restrictions on their liberty
are identical to those of pre-release inmates also residing at such facilities. Id.
       While Johnson’s argument based on the concurring opinion in Torres is a
compelling one, Medina is binding here.6 In Medina, this Court held that “parolees
are not entitled to credit for periods in which they reside in community corrections
centers (CCCs), [community corrections facilities] CCFs, or inpatient treatment
programs where the Board determines the parolees did not meet their burden of
proving the restrictions on their liberty were the equivalent of incarceration.”
Medina, 120 A.3d at 1119. This Court also explicitly rejected the analysis set forth
in the concurring opinion in Torres. See Medina, 120 A.3d at 1121-22 (“[C]iting
the concurring opinion in Torres . . . Medina claims he met his burden by
establishing he was subject to all the rules required of state inmates at Liberty
Management CCF. We reject this argument . . . [and have] repeatedly declined to
adopt the position advanced by Medina.”) (citations omitted). We clarified that
“the Cox analysis requires a parolee to show the specific restrictions on his liberty
at a particular facility are the equivalent of incarceration; thus, the Cox comparison
is between restrictions on the parolee at a facility and restrictions on the parolee
while he was in prison.” Id. at 1123-24 (emphasis in original).
       In the instant matter, the Board did not find that Johnson established that he
suffered the same restrictions as pre-release inmates at ADAPPT. Instead, the


       6
          While I continue to respectfully disagree with my colleagues concerning the issue of
whether parolees housed at CCCs should also be entitled to credit, like pre-release inmates, for
the time they reside in such facilities for the reasons set forth in then-President Judge Pellegrini’s
dissenting opinion in Medina v. Pennsylvania Board of Probation and Parole, 120 A.3d 1116,
1125-28 (Pa. Cmwlth.) (Pellegrini, J., dissenting), petition for allowance of appeal denied, 120
A.3d 1293 (Pa. 2015), I am constrained to follow this Court’s binding decision in that case.

                                                  9
Board specifically credited7 George’s testimony concerning the nature of the
ADAPPT facility and made the following relevant findings of fact: the doors are
locked only from the outside; anyone could leave the program at any time, there is
no fence around ADAPPT; all residents could walk in the community within
certain timeframes, provided that they earn the privilege to do so by attending
treatment; and staff members do not physically restrain or prevent residents from
leaving without permission. (FOF ¶ 3.) Thus, Johnson was not locked in the
facility and could have walked right out the door without any staff member
stopping him. These findings support the Board’s determination that Johnson is
not entitled to credit under Cox for the time period he resided at ADAPPT because
the conditions there were not sufficiently restrictive so as to be equivalent to
incarceration. See, e.g., Harden v. Pa. Bd. of Prob. and Parole, 980 A.2d 691, 699
(Pa. Cmwlth. 2009) (“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.”).
       Accordingly, we conclude that the Board did not act arbitrarily or plainly
abuse its discretion when it denied Johnson credit on his original sentence for the
period of time he resided at ADAPPT.




       7
         “Questions of evidentiary weight and credibility are within the province of the Board . .
. and it is free to reject even uncontradicted testimony.” Pastuszek v. Pa. Bd. of Prob. and
Parole, 544 A.2d 1051, 1053 (Pa. Cmwlth. 1988) (internal citations omitted).

                                               10
For the foregoing reasons, the Board’s Decision is affirmed.




                                  ________________________________
                                  RENÉE COHN JUBELIRER, Judge




                                  11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kevin Johnson,                         :
                        Petitioner     :
                                       :
                  v.                   :   No. 2009 C.D. 2015
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :



                                     ORDER


      NOW, July 18, 2016, the Decision of the Pennsylvania Board of Probation
and Parole, entered in the above-captioned matter, is AFFIRMED.




                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Johnson,                              :
                           Petitioner       :
                                            :
                    v.                      :   No. 2009 C.D. 2015
                                            :   Submitted: March 18, 2016
Pennsylvania Board of Probation             :
and Parole,                                 :
                 Respondent                 :

BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED
CONCURRING OPINION BY
SENIOR JUDGE COLINS                                           FILED: July 18, 2016

             I concur with the scholarly opinion of the majority.           While the
majority opinion is a correct statement of the present law, I think that it is time that
this Court revisit Medina v. Pennsylvania Board of Probation and Parole, 120
A.3d 1116 (Pa. Cmwlth. 2015), and adopt the rationale of the Honorable Rochelle
Friedman’s concurring opinion in Torres v. Pennsylvania Board of Probation and
Parole, 861 A.2d 394, 401 (Pa. Cmwlth. 2004).
             I question the wisdom of imposing lengthy punitive sentences for
marijuana possession offenses. In an era when smoking marijuana is legal in
several states, I question imposing extensive and expensive periods of
incarceration when the cost of maintaining our state prison system is almost 7% of
the Commonwealth budget.

                                        ______________________________________
                                        JAMES GARDNER COLINS, Senior Judge
