Opinion
No. 2002 C.D. 2012
03-27-2013
Harry Banos, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Harry Banos (Banos) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his petition seeking credit for time spent at a community correction facility. Finding no error, we affirm the Board's decision.
On March 5, 2007, Banos was paroled to MINSEC-Chester (MINSEC), a halfway house, where he remained until March 5, 2008. He was arrested again in August 2009 and subsequently convicted of robbery, for which he was sentenced to a minimum of nine months and a maximum of 23 months in county prison. By decision dated March 17, 2010, the Board recommitted him as a parole violator. He was subsequently released and was again arrested, convicted and sentenced for burglary also committed while on parole. The Board again recommitted him as a convicted parole violator. As a result of the convictions while on parole, Banos' maximum sentence date was changed to September 6, 2014, which did not take into account the 366 days he spent at MINSEC. Banos then filed a request for administrative relief objecting to the Board's decision to deny him credit for his time at MINSEC.
Before the hearing examiner, Banos testified that upon being paroled from the State Correctional Institution at Houtzdale (SCI-Houtzdale), he was sent to MINSEC. He said that while at the facility, he had outside employment and would leave the facility and take public transportation to get to work. He was not searched before leaving the facility but had to sign out before leaving, and his counselor had to verify his employment before he could begin leaving for work on a daily basis. Banos said he would endorse his paycheck every week and the facility staff would cash it and put the money in his account; residents were permitted to take up to $200 out of their accounts each week but had to submit a slip providing reasons for doing so. He testified that during the week he had to be back at MINSEC by 11:00 p.m. and failure to report back to the facility within two hours after finishing work constituted a violation of the facility's rules, which could result in being recommitted or sanctioned. Residents could also be given passes to leave for a day, but otherwise could not come and go freely, and staff members had to unlock the doors for residents to leave. Additionally, when a resident would return to the facility, he or she would be patted down and could be subjected to a breathalyzer or urinalysis if the facility deemed it appropriate. Banos also said that in the evenings, lights went out at 11:00 p.m. and residents were only allowed to leave their rooms at night to go to the restroom. Residents were not permitted to have cell phones either. Visitors were permitted, but were subject to a pat down and visitations were limited to the front office area. Banos further testified that the accommodations were dormitory-style rooms with bars on the windows, and approximately 15 to 20 residents lived in each dormitory.
Stephen Graves (Graves), director of MINSEC, testified that the facility's doors are constantly locked "for the safety and security of the residents ... [because] Chester is not the best area." (Hearing Transcript dated June 25, 2012, at 52). While the dormitory doors were never locked, Graves confirmed Banos' statement that residents were not allowed to move freely about the facility after 11:00 p.m. except to use the restroom. Graves further testified that the exits have locks controlled by security staff at the front desk, but residents had previously escaped through those doors without staff unlocking them. He said that if a resident wishes to leave the facility altogether, staff members will try to talk the resident out of leaving but will not actually physically restrain the person, so an individual is free to leave; leaving would result in the individual being deemed a parole absconder and Graves would notify the resident's parole officer that the individual had left. He said the residents were informed of this policy. Additionally, the facility has a fence, but the gate is always open. Graves also said that when residents leave the facility with permission, they do not have any sort of escort. When residents return, they are subject to search for the safety of other residents and employees of the facility. Passes to leave the facility for personal, non-work purposes could be earned within two weeks of beginning work.
Based on the testimony and evidence presented at the hearing, the Board determined that Banos did not meet his burden of establishing that "his stay at the facility constituted a restriction on his liberty sufficient to warrant credit on recomputed backtime." (Notice of Board Decision dated July 6, 2012). In reaching its decision, the Board reasoned that while security staff controls the doors, residents could leave at will if they so choose and would not be physically restrained or prevented from leaving, and that no parolee has ever been charged as an escapee, but only as an absconder. The Board, therefore, refused to give Banos credit for the 366 days he spent at MINSEC. This appeal followed.
Our scope of review of an appeal from an order of the Board is limited to determining whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Morgan v. Pennsylvania Board of Probation and Parole, 814 A.2d 300, 302 (Pa. Cmwlth. 2003). --------
On appeal, Banos contends that the Board erred in denying him credit for time spent in post-confinement facilities because his stay at MINSEC was not a voluntary choice, and an unsuccessful discharge from the program would have been considered a violation of parole. He contends that the requirement that residents stay in the facility unless they have work or a day pass and sign out with the front desk, coupled with other limitations such as bars on the windows and random drug and alcohol testing, demonstrates sufficient confinement so as to warrant credit for his time there.
Section 6138(a)(2) of the Act known as the Prisons and Parole Code (Code) provides that a parolee who is recommitted as a convicted parole violator "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). While "at liberty on parole" is not defined in the Code, our Supreme Court has held that "at liberty" does not mean freedom from all types of confinement. Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 619, 493 A.2d 680, 683 (1985). A convicted parole violator who seeks credit on his original sentence for time spent in a halfway house bears the burden of showing that the specific characteristics of the program constitute restriction of liberty sufficient to warrant credit on the original sentence. Id. Two factors are considered in determining whether a halfway house or group home is sufficiently restrictive so as to be equivalent to incarceration: (1) whether the facility is locked or secured; and (2) whether a resident is able to leave the facility without being restrained or escorted. Meleski v. Pennsylvania Board of Probation and Parole, 931 A.2d 68, 71-72 (Pa. Cmwlth. 2007), appeal denied, 596 Pa. 736, 945 A.2d 173 (2008).
In Figueroa v. Pennsylvania Board of Probation and Parole, 900 A.2d 949 (Pa. Cmwlth. 2006), this Court determined that a parole violator was not entitled to credit for the most restrictive part of his time spent in a community corrections center known as a black-out period. We based this decision upon a number of points, including the fact that "[a]lthough the doors to the Center are locked, this is only to prevent unauthorized visitors from entering, not to prevent the residents from leaving. Staff members do not physically restrain the residents, nor are the residents charged with escape if they leave the facility." Id. at 952. Additionally, even during the most restrictive period of an individual's stay at the center, residents were permitted to leave the facility without an escort to attend to personal business.
This case is comparable to Figueroa. Here, a resident who wishes to leave the facility will not be physically restrained, though his parole agent will be notified. Residents may leave the facility without an escort and, although the doors are locked and must be opened by security staff at the facility, Graves testified that this was primarily for the safety of residents and staff. Gates are not closed or locked outside the facility, and residents are allowed to make phone calls and have visitors. Therefore, we conclude that the Board did not err in finding that Banos failed to establish that he was not at liberty during his time at MINSEC.
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 27th day of March, 2013, the order of the Pennsylvania Board of Probation and Parole, dated October 5, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge