i agree with you yeah we didn't right on but it's clear from the commonwealth court decision that yells the supervisor of weiss and had to react direct input into into what was going on however i have no firsthand knowledge regarding yell and so i can't write on it as and as an officer of the court but reasonable people would be able to understand that a case that's been to the commonwealth court twice when mr weiss is quoted in the  commonwealth court that we attached is exhibit a to the original complaint where he's saying that he made the decision based on the advice of counsel that obviously ms yale has to have some kind of personal involvement but again i have no factual basis for that so as an officer  know that's a tough it's a tough one i mean it's just so much it's so much different than the other two people that you're on or just asked me about i mean the other two i have no factual basis but obviously defendant yale has personal involvement in this i just don't know what it what it is so at this point for today's  originally sentenced and the superior court reversed the sentencing he was reset and and there was a question of whether or not the aggregate sentence should have been six and a half to thirteen years or should have been five to ten years and the commonwealth court ruled that it was well that the state actually to grant the original petition in the pelz favor to make it five to ten and then after they did that they went back and reviewed again on their own volition and then changed it back to where they had it before which was six and a half to thirteen at which time mr powell filed the second action in the commonwealth court and at that time is when the commonwealth court ordered the the state to make it again five to ten in the published opinion so the really respectful honor there really is no dispute over the fact that the sentence was five to ten and the second should have been five to ten and of course we all know under the rule of criminal procedure in pennsylvania that once thirty days passes  after sentencing that the court no longer has jurisdiction to reopen the matter unless one of the parties file something and so the state writing a letter to them under a case like to call brandt doesn't really apply after the thirty days has passes when it's clear what the order is so in this case i don't think there's any dispute between any of the parties that the aggregate sentence was five and not six and a half to thirteen but as you say a question of this new the i don't understand completely the responsibilities here the complaint alleges that was calculated power sentence wise as with the o c department corrections to correct is under the responsibility of the euro prisons is that correct ok or how do the responsibilities for setting parole and maximum minimum sentence terms intersect here it only that really respectfully to the court that's not really my understanding of how it works there's a sentencing judge that gives a sentence and it's five to ten and so if it's a five to ten year sentence then that's the sentence the department of corrections has no standing or input to alter the five to ten year sentence at some point the can then decide at what point after the person has served a minimum of five years to what point parole can be granted if if at all and so at that point once the person granted parole the parole people supervise that person like there's a parole officer for that the only time that the department of corrections comes into any business and sort of calculating this when there's more than one sentence and we have to figure out what the aggregate of those sentences are which is what we have to do which are here so so in general though they have no standing or business getting into any competition sentence so in a case where someone has three cases like we have here you're looking at what the total aggregate is and by that whether the sentences are meant to be consecutive or concurrent and basically under the rules of pennsylvania criminal procedure  in the commonwealth court opinion the sentencing courts have to state on the record whether they are to be served consecutive or ork or concurrent there is a case that's called brandt's that they rely on in that opinion where they say that the the department of corrections can contact the judge to get clarity on on things but that the record itself is what applies and the commonwealth court was not willing to extend brandt in fact distinguished it in the commonwealth court opinion to say that of grant did not apply because here it was clear because judge ransom said to all of it can concurrent to all other cases and they cite the record of what's actually on the record in the courtroom not what the correspondence between  department of corrections is so while they do have power to make that computation they're not making any decisions they're not making any interpretations they're just going by what the record is in the in the courts and pine what what that is and i think that's really you the other harm is he was kept on parole for seven months when he was not subject to parole right but he was of course or at seventeen was lower than he was approximately and so we do discovery i couldn't say for sure i guess at seventeen months i'm pretty good at that all right so with get with respect to the first aspect the community corrections center retraction you cited asked with your brief and asked with mentions that residency in a halfway house still constitutes institutional confinement so how can you persuade us that you had your client had a liberty interest that he was deprived of when he wasn't sent to the c c c it's a two part two partitions so one we have to look at cases where the person has been granted to the person already and then cases where it hasn't been granted they're saying it should have been granted right we're only looking at cases in the full you'd be much better footing if your clients  begins at that point but that question about asquith is if you read those cases and the fact pattern on that line of cases the reason that it's taken is all based on the conduct of the plaintiff or than that criminal defendant for example the reason why those people are being taken out of the program that they're in is because they do something to violate the rules of the program the right it's not based on some arbitrary reason ah but you don't get a right i mean a guy who posit for minute a guy who get has a grudge against the guy sounds into the whole it's wrong it's awful that man doesn't have a right a group to hear it because he's an institutional convenient so if you ask which says institutional confinement is a halfway house why isn't this committee correction center here part and parcel that institutional confinement that does not even give rise to liberty interest is the supreme court case on young harper says that once it's granted and you're at you have a liberty of liberty interest there and there's no case in this circuit on following young the harper where it says where it's where they're actually you know been given that benefit that they say you're going to get so you want to just follow young v second aspect of harm i reviewed your complain again to try to ascertain what harm be felt your client during the seven months of parole and i didn't see any allegations of harm there other than the fact that hey he was on parole what we were the were the allegations of harm or i just we just have to look at ourselves as humans and understand that if any of us had a choice to be incarcerated a us sci in pennsylvania oh i'm sorry you're talking about the seven he's seven months under that he's at liberty and i didn't see for example i'm looking in the complaint for the pro life she was bothering him he had to come down town bus fare he had he couldn't get employed because he was still this court to be outraged as was i when i realized the kind of thing that was going on here in other words they've been the commonwealth court twice they were told you know come on make it five to ten twice by the commonwealth court after that if they claim they  invalidate the conviction that you're at all and i and i understand that yeah but you just you just what i'm respectfully i'm not sure you answer my question i was asking about the harm where you pleaded the harm and the answer that i heard you give me was this  keystone cops routine by the pennsylvania court system is outrageous and unfair ok let's assume you're right about that where's the under under it but yes the police some harm it's not otherwise this seven months on parole locker if you're on parole i've been to the parole office personally did you plead that your client went to the parole office no i don't believe i did and if you believe he had to give urine samples he was tested he couldn't get a there anything in the complaint obviously not i and i again even if i had the amount of harm as i said is essential of harm it's the the meat of the case is based on that they granted him to go to the c c c i would immediately was what four days away before they took it back correct we would do it and the real you're getting down to the crux of it on that issue when does a liberty interest attach normally if you revoke something and you're already into a program and although bit that incursions of that in ask with normally they there is a liberty interest that attaches once you but if you're looking to getting into a program it seems that liberty interest interest probably does not attach into your already there though it may have been keystone kops as to how the dio see acted here but it seems like there is at least an effort to try to come up with an easily understandable test the black and white as to whether one has a liberty interest i think it's once granted and i believe some arbitrary administrator who who does that it's created created all right some things were just a minute a mistake one day you're in the same position if your you mean  he was granted a right to go to a community center and he's anticipating that and then four days before he goes they say  know we said concurrent but now we're saying consecutive and therefore you're not able to go this seems like it's it's in that very gray area that he has and in effect his view is i was granted release to this c c c and it's now been revoked and revocation seems to be one that gives you a liberty interest where as if it hadn't been granted he wouldn't have a case now he certainly seems to have one which response and you know there is no gray area here i want to make it you know abundantly clear that this was an expectation of release it is clear that there is no liberty interest that vests even after release to a community corrections or what when did the permission when was it given to allow him to go to the community corrections center apparently up according to the pleadings in the prior history in the case it was granted some time in february of two thousand and seven and when was he supposed to be between when he was told he was granted the ability granted they would be released to the community corrections center and when they told him that he no longer was able to go because they were construing his sentence in two thousand and four to wherry what happened what happened in november the there was a letter that was sent to the partner of corrections mr white from judge ransom saying this is what i want  point that i was going to make it is exactly the same in this case it's more compelling because the only thing that happened in this repair how was he if you remain exactly where he was well know you i mean he was  inmates are transferred or not transferred for a variety of reasons a lot of them associated with administrative needs on a daily basis daily basis so if in in me is supposed to go out for medical treatment there may be something outside of the department's control that happens that results in the person not going the same thing happens with court appearance it's the same thing happens with transfers and when it's machines we're not on fire but if we agree with you on that what's your defense on the argument that this gentleman spent seven months on parole that he should not have had to spend there is a significant point i want to clarify that point that the department of corrections and and this is a study in my brief the department of corrections is not responsible claim that he was going to bring it would not be against the department of corrections the agency responsible for supervising him on call is supportive of gratian role so to the extent that measure of how had a complaints about being supervise maximum sentence as ending in may of two thousand and twelve ok he was released from the department's custody in august two thousand not so he was released from our custody and supervision approximately three years before  with regard to his claims for the seventeen months of incarceration beyond what he should have been available for release and then the seven months of parole supervision more than they claim he should have had sentence the end of in two thousand and twelve we released him in two thousand so there's no question from the record the facts in this case make it clear and the law makes it clear that the department of corrections at least had nothing to do with him after august of two saying that if the claim is that his conditions of confinement were messed up because of the incorrect calculations done by among others mr weis institute and did not go out so i know this is high closely to the due process for him but the fact of the matter is that he this is not something that implicates necessarily that the duration of his confinement because clear to the enemy that they did not have some expectation of somehow being pulled back but it was similar to roll in the sense that as long as you don't screw up for lack of putting it that are you you would remain out in pennsylvania the regulations but the regulations make it clear that you have no expectation of remaining out the department of corrections and we back at any time for administrators or other reasons thought you would say he was never out well here in arkansas in our case that man you know young was out for five months he was at liberty right i under i thought your argument in this case look you candidly conceded i think that any one of us would rather be in a c c c than a general population that seems a self evident proposition but you're your answer as a legal matter is that does not make it a constitutional claim there are any cases to support the notion that people that get transferred from various stages of institutional confinement have springing liberty interests is that correct ok so why does it help you to suggest that mr powell was was out or i mean he well he was he was not he was still and i don't because he was out it's a different theories you have a you have a tougher argument if he was out if he was put at liberty at any time right and that actually that's my point is that it doesn't make it a tougher case in pennsylvania because even if you are out what he was not so it's clear because he was not ok but if you are saying never lets if they sentenced was calculated correctly at the outset that is it should have been concur it was strictly concurred where would he have been released the sen or three and three to five if they were all concurrent then he would have been completely released as of sometime in two thousand and nine yeah he would have been released in two thousand and twelve that it was recalculated based on that later letter from judge france so they had what have you would have reached his maximum sentence in two thousand when it was returned all it did was go back to that prior calculation which ended it in may of two thousand who wrongly grant me that fact you may not agree but wrongly kept mr powell on parole for seven months would you not concede that that could be a viable section  assuming heart of assuming probably plead it right properly played facts i think it would be i think there's a not to fight the hypo but there is the minute i'm actually is calculated by the parliament corrections parole board i'm i'm just like to reply to counsel twice that is not twice that that there was a letter from judge ransom to the department of corrections and just for clarity sake on page eight thirty fo says performing this review the department sought clarification from judge ransom regarding her june sixteenth two thousand and four sentence and so this letter that they're referring to is in response to this quote that i just read you and you can see further down the page it says the same paragraph about eight lines down it says judge ransom responded so it's not like on her own volition she contacted them in other words there was  you're trying to figure it out and so why would you go back to the court and say hey what it would you would you being would you do well that's exactly where i was going after on or on page eight thirty six of volume two of appellants appendix which is pa record whether it's consecutive or concurrent and so by by that not being present or actually by her saying it's earlier in the opinion she says i intend this to be concurrent to all other matters there is nothing unclear about that there's no need for them to arbitrarily contact her for clarity when the order and the record are clear from the sentence in court where it says concurrent to all other matters so i only bring up these parts of this opinion because i believe everyone's agreed to adopt these facts based on the previous pleadings and so if that's the case it's just not so the judge ransom just contact them date it that on their own and they should enough and more reason to do it and the court as i said earlier points to mean that's a situation where you're really should be revoked you should your parole should be revoked all of those think should happen here my client didn't do any of that well that's he speaking only for myself you make it you make it an interesting equitable argument sort of a moralistic argument that i think has a lot of have to it that the difficulty is you run into a lot of case law that draws fairly stark lines about where liberty interest begin and end and