ORDER

COLINS, President Judge.

NOW, December 8, 2004, having considered respondent's application for reargument, the application is denied.

OPINION BY SMITH-RIBNER JUDGE.

Jose Enrique Torres, who is a recommitted technical and convicted parole violator, petitions for review of a decision of the Pennsylvania Board of Probation and Parole (Board) that denied Torres' request for credit toward his recalculated sentence for time spent in the Conewago-Wernersville inpatient drug and alcohol rehabilitation facility, Wernersville State Hospital (Conewago). Torres contends that the Board erred in failing to grant him credit because the conditions at Conewago were sufficiently restrictive so as to constitute "custody." The Board contends that a "bright line" rule should be adopted for these cases, under which only "official detention" as defined in Section 5121(e) of the Crimes Code, 18 Pa. C.S. § 5121(e), is equivalent to incarceration for purposes of receiving credit.

I

On November 5, 2001, the Board released Torres on parole from a five-year sentence for aggravated assault with a maximum-term expiration date of April 22, 2003. The order releasing Torres stated that he was to be paroled "to a community corrections center with drug/alcohol inpatient [treatment]" and that he was to "enter into and actively participate in the community corrections program until successfully discharged by the parole supervision staff." C.R. at 11. Upon his discharge from SCI-Camp Hill, Torres was released to Conewago. On January 2, 2002, Torres left the facility without notice or permission. On February 22, 2002, he was arrested and charged with possession of drug paraphernalia. Torres pleaded nolo contendere to the charge and was sentenced to sixty days in the Northampton County prison. By decision and order mailed February 24, 2003, the Board recommitted Torres as a convicted parole violator and recalculated his maximum-term expiration as February 24, 2004. The Board did not give Torres credit for the time that he spent at Conewago.

Torres appealed, and a hearing examiner conducted a hearing on April 11, 2003 to determine the custodial nature of the Conewago inpatient program. Torres and Brandi Koppenhaver, Conewago's executive director, testified about conditions imposed on program residents. The record establishes that Conewago is a privately owned and operated facility, which conducts inpatient drug and alcohol treatment programs under contract with the Board and with the Department of Corrections (Department). Conewago's inpatient programs serve parolees under the supervision of the Board and pre-release inmates under the jurisdiction of the Department.

When a resident arrives at the facility, for the first forty-five days he is permitted to leave only to attend drug and alcohol rehabilitation or other authorized meetings. During these trips, residents are driven to and from their meetings by Conewago employees. After the initial period residents are allowed to leave for unsupervised work or for recreational or other purposes, but they must inform Conewago staff of their whereabouts and the time of return. Conewago has no fence, no internally locked doors, no window bars and no restraint devices, such as handcuffs, and persons may leave the facility by pushing panic or pad bars. If an inmate under the Department's jurisdiction leaves without permission, Conewago notifies the Department and the State Police, and the inmate will be arrested and charged with escape. If a parolee leaves without permission the parole agent is notified, and the parolee will be treated as a technical parole violator. The hearing examiner found that Conewago's program was not equivalent to incarceration and recommended that Torres be denied credit for time he spent there. The Board adopted the recommendation and denied Torres' administrative appeal.

II

Section 21.1(a) of the Act commonly known as the Parole Act authorizes the Board to recommit as a convicted parole violator any parolee who is convicted, found guilty or pleads nolo contendere to any crime punishable by imprisonment and provides that a person so recommitted "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." Various court decisions have discussed the meaning of "at liberty on parole," and courts have attempted to articulate standards for determining when a parolee should be given credit toward a recalculated sentence in a given case for time that the parolee spent in an inpatient drug and alcohol rehabilitation facility.

In Cox v. Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985), the Pennsylvania Supreme Court for the first time addressed the meaning of the phrase "at liberty on parole." The court reversed an order of this Court, which had affirmed the Board's denial of credit for time that a parolee spent on parole in an inpatient drug treatment program at Eagleville Hospital. In remanding for additional hearings, the Supreme Court held:

Appellant did not enjoy the greater freedom of "street time" while at Eagleville, but he was restricted from leaving Eagleville under the special condition arising out of his original sentence, a restriction of liberty presumably less onerous than constructive parole. We are therefore left with the need for a factual determination as to the nature of the Eagleville program and whether the restrictions on appellant's liberty there were the equivalent of incarceration entitling him to credit for the time spent in the program. The majority of jurisdictions which allow credit on backtime for time spent in rehabilitation programs examine the specifics of the program to make this determination.

. . . All forms of parole involve some restraint on the parolee's liberty, and non-compliance with them can result in arrest and recommittal as a technical parole violator. It is appellant's burden, on remand, to show the specific characteristics of the Eagleville program that constituted restrictions on his liberty sufficient to warrant credit on his recomputed backtime, and persuade the Board of that fact. Moreover, we will not interfere with the Board's determination of that issue unless it acts arbitrarily or plainly abuses its discretion.

Nevertheless, the Board must help in providing a record which makes effective appellate review possible. Simply because parole status must be voluntarily accepted by the prisoner, and the conditions of his parole are known to him when it is accepted, we cannot conclude, as the Board seems to intimate, that he is automatically "at liberty on parole."

The Board imposed special conditions on appellant's parole, conditions beyond those generally imposed on parolees. While the Board had the statutory authority to impose these conditions, the specific programs at Eagleville may have been so restrictive that they require the granting of credit. Other programs may not require such credit. We cannot make an informed determination of this issue on the record before us.

Cox, 507 Pa. at 619-620, 493 A.2d at 683-684 (citations and footnote omitted).

Since Cox this Court has considered the issue of claims for credit for time that assertedly was not "at liberty on parole" on several occasions. In Beasley v. Pennsylvania Board of Probation and Parole, 103 Pa.Cmwlth. 39, 519 A.2d 1069 (1987), a parolee sought credit on recommitment for time on parole when he completed an inpatient drug treatment program. This Court stated that in Cox the Supreme Court held that each claim must be evaluated on a case-by-case basis and remanded for a determination of facts regarding the nature of the rehabilitation program. In Jackson v. Pennsylvania Board of Probation and Parole, 130 Pa.Cmwlth. 527, 568 A.2d 1004 (1990), a parolee was paroled to the same Eagleville inpatient drug and alcohol treatment program involved in Cox. Based on evidence from a hearing, the Board found that the doors were not locked, that the facility had no fences and did nothing to prevent a patient from leaving and that if the parolee left the facility parole authorities were notified. The Court held that the Board did not abuse its discretion in determining that the program lacked sufficient custodial aspects to characterize time spent there as confinement rather than liberty.

The Supreme Court approved credit toward a sentence for time spent in a treatment facility in a slightly different context in Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991). There a defendant charged with driving under the influence of alcohol voluntarily entered and completed an inpatient alcoholism treatment program. After he pleaded guilty, the trial court granted credit for his time in "custodial treatment" pursuant to Section 9760 of the Sentencing Code, as amended, 42 Pa.C.S. § 9760, which provides that a defendant may be given credit for the period of time spent "in custody." The court reasoned that the defendant's time in the restrictive treatment facility was sufficient to satisfy the requirement of former Section 3731(e) of the Vehicle Code, 75 Pa.C.S. § 3731(e), that a person convicted under that section serve a mandatory period of "imprisonment." In the absence of a statutory definition, the Supreme Court noted the definition in Black's Law Dictionary (5th ed. 1979) of "imprisonment," which is broader than simply confinement behind bars, and the court stated its belief that "in custody" in that case meant time spent in institutionalized rehabilitation and treatment programs.

More recently, in Meehan v. Pennsylvania Board of Probation and Parole, 808 A.2d 313 (Pa.Cmwlth. 2002), the parolee sought credit on recommitment for 192 days that he spent completing a residential drug treatment program at Keenan House. Following remand for an evidentiary hearing, the Court affirmed the Board's denial of credit noting that the evidence showed that although the residents were closely monitored, the parolee could have walked out the door, that no one on staff was allowed to restrain anyone who left and that if a parolee left it would not be an escape but rather absconding on parole. In ruling on a claim of violation of equal protection because an inmate on pre-release status was entitled to such credit, the Court explained that if a pre-release inmate left he could be charged with escape under Section 5121 of the Crimes Code, 18 Pa.C.S. § 5121, for removing himself from official detention, which, as defined in Section 5121(e), excluded supervision on probation or parole. Thus their circumstances differed.

The Court considered Section 21.1(a) of the Parole Act as well as Section 9760 of the Sentencing Code in McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 (Pa.Cmwlth. 2003), appeal granted, 578 Pa. 718, 854 A.2d 969 (2004). The opinion in that case states that the parolee was released to the Capitol Pavilion Community Corrections Center and that he later sought credit toward a period of recommitment for his time there. The Board argued that a parolee is always "at liberty on parole" except when the parolee is under arrest and waiting to be returned. The Court referred to Commonwealth v. Chiappini, 566 Pa. 507, 782 A.2d 490 (2001) (plurality opinion), which noted that "custody" had been held to be broader than "imprisonment" and that whether legal restraint constitutes "custody" for purposes of sentencing credit is determined by the extent of control exercised by the restraining authority. It referred also to the credit approved in Conahan toward a mandatory "imprisonment" for time spent in inpatient drug rehabilitation.

The Court in McMillian noted that there was a seventy-two-hour period in which residents could not leave at all and that then they were subject to all rules and regulations, including mandatory participation in all programs. Inmates on pre-release status and not yet on parole would be reported to the Department for leaving without permission, and those on parole would be reported to the Board. Pointing out the factual similarity to the institutionalized setting involved in Conahan, the Court concluded that the record showed that the extent of control over pre-release inmates or parolees exercised by the authorities at the community corrections center involved sufficient restraints to constitute custody for purposes of credit under Section 9760 of the Sentencing Code.

In Willis v. Pennsylvania Board of Probation and Parole, 842 A.2d 490 (Pa.Cmwlth. 2004), the Court affirmed the Board's decision that time spent in the inpatient drug/alcohol treatment program at the Gateway Rehabilitation Center was not subject to later credit under Section 21.1(a) of the Parole Act. While noting that credit is required if restrictions may be equated with custody or imprisonment, the Court agreed that the parolee had not met his burden under Cox where the evidence showed that residents were not locked in, that they could have walked out, that if they did so no one would try to stop them and that residents who left without permission would not be charged with escape. Similarly, in Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187 (Pa.Cmwlth. 2004), the parolee sought credit for time spent in an inpatient drug/alcohol rehabilitation program while on parole at a community corrections center. In view of evidence, inter alia, that no force would be used to restrain anyone who left without permission and that staff members were counselors and not law officers, the Court held that the case was governed by Jackson and Willis and not by McMillian.

III

Torres cites McMillian for the proposition that a pre-release inmate or a parolee confined to a community corrections center is sufficiently restrained, physically and constructively, to be in custody. Also, he contends that this case is similar to Conahan. At the hearing on April 11, 2003, Torres testified that during the first forty-five days of his residence he was not allowed to go anywhere outside the facility, so it was like a correctional facility. N.T. at 6-7. The exceptions were meetings outside the facility roughly once a week, but for these he was accompanied by a staff escort. Id. at 7-8. Koppenhaver confirmed that for attending meetings away from the facility in that initial blackout period a staff person would drive the resident to the meeting, remain with him and then drive him back. Id. at 27. Even after the initial blackout period, Torres asserts, he had to earn leisure time before he could leave the facility, he had to sign out and report where he was going and when he would return, and if he failed to return at the designated time he would be arrested by local authorities and/or the Board.

The Board argues, to the contrary, that the conditions at the group home included neither physical restraint nor the threat of criminal sanction if Torres absconded, which it asserts are the essential characteristics of incarceration. Further, the Board submits, Torres was neither incarcerated nor in official detention, and he could not be charged with escape when he left Conewago. The Board additionally argues that monitoring compliance with parole conditions is not the same as incarceration or detention. Notwithstanding its suggestion for a "bright line" rule for the Court to adopt in these cases, the Board appears to understand clearly that its position is flatly contrary to the Supreme Court's holding in Cox.

The Board, nonetheless, maintains that in Cox the Supreme Court "overlooked" a provision of Section 21.1(a) of the Parole Act indicating that time at liberty on parole for a technical parole violator ends when he is taken into custody on a Board warrant and also overlooked a large body of common law on the subject of imprisonment. It cites to provisions of the Restatement (Second) of Torts relating to the tort of false imprisonment and what constitutes confinement, although such common law tort principles are irrelevant to the interpretation of Section 21.1(a) involved in Cox and its progeny. The referenced statutory provision does not preclude finding custody in other contexts. Moreover, a failure of the legislature to change the law after the Supreme Court has interpreted a statute creates a presumption that the court's construction was in accord with legislative intent. Commonwealth v. Wanamaker, 450 Pa. 77, 296 A.2d 618 (1972). The legislature amended Section 21.1 of the Parole Act in Section 4 of the Act of December 21, 1998, P.L. 1077, but it made no change to Section 21.1(a).

In regard to McMillian the Board first suggests that it is distinguishable because this Court misperceived that the facility involved was a community corrections center, the assistant director in McMillian used the term "inmates" whereas the term used here was "residents" and the assistant director testified (incorrectly) that inmates were on pre-release status whereas here Torres clearly was a parolee. If McMillian cannot be distinguished, the Board requests the Court to overrule it, arguing that the Court announced a per se rule of credit for time spent in community corrections centers that conflicts with well established, binding precedent in Cox. The Board emphasizes that under 37 Pa. Code § 94.2(c)(1) a community corrections center is operated by the Department and that because the facility involved in McMillian was privately owned, it falls under the designation of "Group home residency" in 37 Pa. Code § 94.2(c)(2), which "complements community corrections center residency[.]" Such residences provide specialized residential treatment and include 24-hour supervision, living quarters and special services for selected residents. Id. Thus, by the Board's own citation, the Capitol Pavilion was complementary to community corrections, served similar functions and remained under community corrections jurisdiction.

IV

Under Cox it is not necessary that restrictions on Torres' liberty be identical to those that would exist at SCI-Camp Hill to conclude that he was not at liberty on parole. Had that been the rule intended in Cox the court could have simply affirmed the Board's denial of credit, for it is unlikely that any inpatient drug and alcohol treatment program would be as restrictive in all respects as conditions found in a state prison. Koppenhaver confirmed Torres' testimony that for the first forty-five days of treatment Torres was allowed to leave the premises only to attend meetings approved or ordered by Conewago; these trips occurred weekly and were under the supervision of Conewago staff. After that initial period the conditions more resembled those analyzed in other cases. See Meehan.

Based on a thorough review of case law, the Court concludes that credit must be afforded for the initial forty-five day period of time that Torres spent at Conewago. Torres testified as follows regarding this initial period of time: "It's like a state correctional facility because I'm over there with the state inmates another fellow and we don't go anywhere except inside the building — meetings. We don't go anywhere else. Meetings outside the community [are] under staff supervision. It's 24/7 inside the facility." N.T. at 6. The Board dismisses this testimony as "self-serving," but it was not rebutted and in fact was confirmed by Koppenhaver. The mandatory escort during this initial period plainly was intended as a coercive security measure and not merely as transportation assistance.

As the Supreme Court held in Cox, specific circumstances may constitute such restrictions on liberty as to require credit toward a sentence on recommitment. Although no formulation will apply to all potential individual circumstances, the facts in Jackson; Meehan and Wagner demonstrate that ordinary restrictions such as those that attend many inpatient treatment programs are not so onerous as to require a credit. The Court holds otherwise, however, 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. Recognizing that courts must continue to examine the factual circumstances of each case, the Court nevertheless holds that a parolee who has been forbidden generally to leave a particular inpatient drug and alcohol rehabilitation facility for a specified period for which credit is sought, who is under 24-hour supervision during the specified period and who is not permitted to make required trips outside of the facility without an escort cannot reasonably be described as being "at liberty on parole."

By failing to recognize the extent of the restrictions imposed upon Torres for the initial forty-five day period of his time at Conewago as being within the Cox standard, the Board abused its discretion in denying credit for that period. Accordingly, the Court reverses the Board's order to the extent that it denied credit to Torres for the forty-five-day period of time. The Court otherwise affirms.

ORDER

AND NOW, this 27th day of September, 2004, the order of the Pennsylvania Board of Probation and Parole is reversed to the extent that it denied Jose Enrique Torres credit toward his period of recommitment for the forty-five days relating to the initial period of the time he spent at the Conewago-Wernersville inpatient drug rehabilitation facility. The Board's order is otherwise affirmed.

FRIEDMAN, J., concurs and files an opinion.

LEADBETTER, J., dissents.