Opinion
No. 775 C.D. 2013
02-11-2014
Elijah Burke, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Elijah Burke (Burke), proceeding pro se, petitions for review of the April 11, 2013 order of the Pennsylvania Board of Probation and Parole (Board), which dismissed his petition for administrative review and affirmed the November 15, 2012 determination that Burke was properly denied credit for time spent at Gaudenzia Diagnostic and Rehabilitation Center (Gaudenzia). We affirm.
By per curiam order dated May 16, 2013, this Court appointed counsel to represent Burke. Thereafter, counsel filed a motion to withdraw and, in response, Burke filed a petition to waive counsel and exercise his constitutional right of self-representation. See Faretta v. California, 422 U.S. 806 (1975). On July 17, 2013, this Court entered a per curiam order striking appointed counsel from the record and permitting Burke to proceed pro se.
Burke was sentenced to an aggregate term of seven and one-half to eighteen years' imprisonment following his convictions of receiving stolen property, possession of a controlled substance, possession with intent to deliver, robbery, and violating the terms of intermediate punishment. (Certified Record (C.R.) at 1.) For this sentence, effective June 30, 2001, Burke's original minimum sentence date was December 30, 2008, and his maximum sentence date was June 30, 2019. (C.R. at 3.) On July 22, 2010, Burke was paroled from the State Correctional Institution at Houtzdale (SCI Houtzdale) to reside at Gaudenzia. (C.R. at 13-19.) On March 13, 2011, Burke had a verbal and, apparently, a physical altercation with a staff member and absconded from Gaudenzia without permission. (C.R. at 42.) Burke's whereabouts remained unknown until he was arrested by police on May 3, 2011. Id. By decision mailed July 13, 2011, the Board recommitted Burke as a technical parole violator. (C.R. at 23-24.)
Thereafter, Burke was convicted of terroristic threats and simple assault for his confrontation with the staff member. By decision mailed November 8, 2011, the Board recommitted Burke as a convicted parole violator and recalculated his maximum sentence date to April 10, 2020. The Board's recalculation reflects that Burke did not receive credit for the time period he spent at Gaudenzia until his arrest. (C.R. at 25-27.)
Burke filed a timely petition for administrative review with the Board. In this petition, Burke claimed that he was entitled to credit for the time he resided at Gaudenzia pursuant to Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985), because the conditions at that facility were equivalent to incarceration. The Board remanded the matter to a hearing examiner to convene an evidentiary hearing. (C.R. at 45.)
In Cox, our Supreme Court held that a convicted parole violator can be granted credit on his original sentence for time spent in a community corrections residency or similar facility by showing that the specific characteristics of the facility are sufficiently restrictive.
At the hearing, Burke testified that he was at Gaudenzia from July 22, 2010, through March 13, 2011. Burke stated that when he first arrived at Gaudenzia, there was a "blackout" or processing period of 30 days, and during this time, he was "confined" to the facility and could not leave. However, Burke later admitted that he could leave during the blackout but only to go to the parole office, welfare office, and the courts. Burke stated that after the 30-day blackout period, he could obtain passes for a specified time-frame, and he was able to attend school, work, social outings, and medical appointments. Burke added that there are no fences surrounding Gaudenzia, and he had to be escorted by a staff member to go outside for a cigarette break. Burke testified that there is Plexiglas on the interior windows, which prevents residents from opening the windows, and that the doors within the building leading to the other floors are locked from 11 p.m. to 6 a.m.; if a door is opened an alarm will go off. Burke admitted that he is a parolee, as opposed to a pre-release inmate, and stated that it would be a violation of his parole conditions if he absconded from Gaudenzia. (C.R. at 56-62, 65.)
Larry Barksdale, the head of security at Gaudenzia, testified that Gaudenzia does not employ any state correctional officers. He stated that the exit doors are locked from the outside to keep intruders out, but they are unlocked from the inside. Barksdale said that residents on parole, including Burke, are allowed to exit the facility unescorted at any time, and that if a resident left without a pass, the staff would not physically prevent the resident from doing so. Barksdale further said that the doors leading to the floors of the building are not locked; rather, they are alarmed from 11 p.m. to 6 a.m. to monitor resident movement. According to Barksdale, residents are not permitted to travel to other residential floors to socialize, but a resident can use the elevator, ostensibly to go to the main floor. Barksdale testified that if a resident on parole were to leave the building without a pass or authorization, the resident would violate the conditions of parole, and Gaudenzia would contact a parole agent; in contrast, if a resident in a pre-release program were to leave, the resident would be considered a criminal escapee, and Gaudenzia would contact the state police. (C.R. at 68-71, 73-75, 77-79; see C.R. at 21.)
On this record, the hearing examiner found that Gaudenzia is not staffed by personnel from the Department of Corrections; the doors are not locked from the inside and residents can open the exit doors; there is an established pass system that allows residents to leave the facility unescorted to attend legal, social, and employment related activities; residents who choose to leave the program without authorization are not physically restrained by staff; and residents who are on parole that leave the program without authorization are not charged criminally as an escapee. From these facts, the hearing examiner concluded that the specific characteristics of the program at Gaudenzia were not the functional equivalent of incarceration and, therefore, Burke was not entitled to credit against his maximum sentence for his time at that facility. By decision dated November 15, 2012, the Board adopted the hearing examiner's conclusions, and, by decision mailed April 11, 2013, the Board denied Burke's administrative appeal. (C.R. at 82-84, 89.)
On appeal to this Court, Burke asserts that the Board abused its discretion in failing to credit him 237 days for the time he spent at Gaudenzia. Burke cites McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 (Pa. Cmwlth. 2003), for support and argues that "he had to undergo a thirty day processing period, [was] assigned a counsel [and] a director for category three parolees, could not leave the facility without consequences or impunity, had to participate in all assigned programs, and was placed on the [Department of Correction's] count." (Burke's brief at 3-4.) We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with the law, and whether necessary findings were supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Board of Probation and Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005). It is the exclusive province of the Board as fact finder to assess the credibility of witnesses and assign the appropriate weight to their testimony, and, in exercising this function, the Board is free to reject even uncontradicted testimony. Detar v. Pennsylvania Board of Probation and Parole, 890 A.2d 27, 28 n.2 (Pa. Cmwlth. 2006); Pastuszek v. Pennsylvania Board of Probation and Parole, 544 A.2d 1051, 1053 (Pa. Cmwlth. 1988).
Burke also claims, without pointing to anything in the record, that armed guards escorted him when he was transferred from SCI Houtzdale to Gaudenzia. Even if this were the case, the manner in which Burke was escorted to Gaudenzia is irrelevant to the restrictive nature of the facility itself.
Under section 6138(a)(2) of the Prison and Parole Code, 61 Pa.C.S. §6138(a)(2), a parolee recommitted as a convicted parole violator is not entitled to credit for time "at liberty on parole," a phrase that is not defined by statute. However, in Cox, our Supreme Court held that "at liberty" does not mean freedom from all types of confinement. Id. at 619, 493 A.2d at 683. A convicted parole violator bears the burden of showing that the specific characteristics of the program are sufficiently restrictive so as to be equivalent to incarceration. Id. at 620, 493 A.2d at 683. In making this determination, the most important factors are whether the parolee is locked in and whether he may leave without being physically restrained. Detar v. Pennsylvania Board of Probation and Parole, 890 A.2d 27, 31 (Pa. Cmwlth. 2006).
In McMillian, a resident who was in "prerelease" status at a community corrections center sought credit for the time he spent at the facility. We concluded that the facility at issue was located in an "institutionalized setting;" specifically, the inmates were subject to a 72-hour processing period during which they were not permitted to leave the facility, had assigned counselors, were required to participate in mandatory programs, and were granted leisure time depending upon their status and behavior. McMillian, 824 A.2d at 353. For these reasons, we held that the conditions of the center were sufficiently restrictive so as to constitute custody for purposes of time credit under section 9760 of the Sentencing Code, 42 Pa.C.S. §9760.
McMillian, however, has been severely curtailed by subsequent decisions from this Court. Unequivocally, these cases limited McMillian to situations involving residents who are in prerelease status rather than on parole. Weigle v. Pennsylvania Board of Probation and Parole, 886 A.2d 1183, 1189 (Pa. Cmwlth. 2005) ("In Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187 (Pa. Cmwlth. 2004), this Court limited the applicability of McMillian to a situation where the parolee was in pre-release status rather than on parole."); accord Figueroa v. Pennsylvania Board of Probation and Parole, 900 A.2d 949, 953 (Pa. Cmwlth. 2006). "This is an important distinction since a convict on prerelease status is under the jurisdiction of the Department of Corrections, not the Board." Figueroa, 900 A.2d at 953. Here, Burke's testimony and documents in the record confirm that Burke was placed at Gaudenzia as a condition of his parole, not as a prerelease prisoner. (C.R. at 13-21, 61.) Consequently, McMillian is inapplicable. Figueroa, 900 A.2d at 953.
Instead, our decision in Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691 (Pa. Cmwlth. 2009), governs this case.
In Harden, the resident spent time at two facilities, Penn Pavilion and Renewal. The administrators of these facilities testified credibly that there is no fence around the buildings; residents are not locked in and the doors are locked to prevent intruders from entering the buildings; no staff member would ever attempt to restrain a resident from leaving the facilities; and residents could obtain approval to leave the facilities unescorted to attend work or leisure activities. After surveying prior case law, the Harden court concluded that the facilities at issue were not sufficiently restrictive, explaining its holding as follows:
Penn Pavilion and Renewal are physically constructed in ways that this Court has held, on numerous occasions, are unlike prisons. 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.Id. at 699 (citation omitted).
The conditions of Gaudenzia are substantially similar to those facilities at issue in Harden. The evidence found credible by the Board establishes that Burke was free from physical restraint and was able to leave Gaudenzia if and when he chose. Therefore, our holding in Harden is dispositive here, and we conclude that the physical features of Gaudenzia were not so restrictive as to be equivalent to incarceration. Accordingly, we conclude that the Board did not abuse its discretion determining that Burke is not owed credit for time served at that facility.
In his brief, Burke does not argue that he is entitled to a 30-day credit solely for the time he spent at Gaudenzia during the alleged "blackout period," and any contention to this effect is waived. See Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (stating that failure to develop an issue in an appellate brief results in waiver).
In any event, Burke conceded that during the blackout he could attend the parole office, welfare office, and the courts, but he did not explain whether he was escorted by staff for these permitted visits. Conversely, Barksdale testified unconditionally that residents are allowed to leave unescorted with a pass and that if they left without permission, the staff would not physically restrain them. Given this apparent conflict in the evidence, we discern no abuse of discretion on the part of the Board in weighing the evidence and denying Burke credit for the alleged blackout period. See Figueroa, 900 A.2d at 953 ("Figueroa's claim that he could not leave the Center without an escort was specifically rebutted by the unit manager, who testified that all residents, including Figueroa, may leave unescorted during the blackout period to take care of personal business. It was within the province of the Board, as fact finder, to assess the credibility of witnesses and assign the appropriate weight to their testimony."); Harden, 980 A.2d at 699 ("With respect to the rules governing Harden's freedom of movement, Harden first testified that he was not allowed to leave Penn Pavilion at all, but he later conceded that he was allowed to leave for personal errands and medical appointments. . . . [B]eing able to leave a facility for personal errands is most assuredly not a feature of doing time in prison.").
For these reasons, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of February, 2014, the April 11, 2013 order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge