IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antonio J. Rivera, : Petitioner :

:

v. : No. 1539 C.D. 2019

: Submitted: June 19, 2020 Pennsylvania Board of Probation : and Parole, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: September 9, 2020

Antonio J. Rivera petitions for review of a n adjudication of the
Pennsyl vania Board of Probation and Parole (Parole Board) 1 denying his challenge

to the maximum sentence date calculated by the Parole Board after his
recommitment as a convicted parole violator. On appeal, Rivera argues that he is

entitled to an evidentiary hearing to establish that he is entitled to credit towards his
original sentence for the time he spent in a federal prison and for the time he spent

in a residential treatment program , which was the functional equivalent of

incarceration

. F or the reasons that follow, we affirm in part

, and vacate and remand
in part.
On February 25, 2014, Rivera was convicted on drug charges an d
sentenced by the Lancaster Co unty Court of Common Pleas to a term of two year s

1 Following the filing of the petition for review, the Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole Board. See Sections 15 and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code, as amended , 61 Pa. C.S. §§6101, 6111(a).2

and three month s to six years

. His minimum sentence date was October 25, 2015,

and his maximum sentence date was July 25, 2019.

On October 28, 2015, Rivera was constructively paroled from his
original sentence to begin serving a detainer sentence at the Federal Correctional
Institution at Schuylkill

. Constructive parole occurs when a prisoner is paroled from
his original sentence to begin serving a new sentence. See Merritt v. Pennsylvania
Board of Probation and Parole , 574 A.2d 597, 598 n.1 (Pa . 1990)

. On July 28,

2016, Rivera was released from federal prison to Kintock , a residential drug

treatment program

. O n September 9, 2016, Rivera left Kintock, with approval, to

reside with his grandmother

.

O n May 2, 2018, Rivera was arrested on new dr ug charges . On May 3,

2018, Rivera was formally charged. Because Rivera did not post bail, he remained

incarcerated on the new criminal charges

.

Subsequently, o n May 24, 2019, Rivera was convicted of conspiracy to

deliver a controlled substance. O n Au gu st 2, 2019, he was sentenced to six to 30

years , concurrent with any state or federal sentence he was then serving.

On August 26, 2019, the Parole Board recommitted Rivera as a
convicted parole violator. In doing so, t he Parole Board gave Rivera credit for the
one day he was incarcerated solely on its warrant, i.e.

, May 2, 2018. Otherwise, he

received no credit for his time at liberty on parole

, i.e., street time

. His maximum

sentence date was re calculated to be April 28, 2023.

Rivera filed a petition for administrative review with the Parole Board,
asserting that he was entitled to credit on his original sentence for the time he was

incarcerated on the federal detainer (October 28, 2015, to July 28, 2016) and credit

for the time he was a resident at Kintock (July 2 9 , 2016, to September 9, 2016)

. On3

October 15, 2019, the Parole Board denied his request for administrative relief

without a hearing

.

On appeal, 2 Rivera argues that the Parole Board was obligated to
provide him a hearing s o that he can establish that he is entitled to credit for the time

he spent on parole at a federal prison and a s a resident at Kintock . The Parole Board
responds that Rivera is not entitled to credit for the period of time he was on
constructive parole fr om his original sentence even though he was incarcerated

du r ing that time . With regard to Rivera’s time at Kintock, the Parole Board concedes

that Rivera is entitled to an evident iary hearing to determine whether conditions in
the facility were the functi onal equivalent of incarceration

.

W here a parolee has been constructively paroled, Pennsylvania courts
have explained that “he is nonetheless ‘at liberty’ from the original sentence [.]”
Bowman v. Pennsylvania Board of Probation and Parole , 709 A.2d 945, 948 (Pa.

Cmwlth. 1998). If the parolee is subsequently recommitted as a convicted parole

violator, his time on constructive parole is treated as any other period of street time

.

In Merrit t v. Pennsylvania Board of Probation and Parole , 539 A.2d

511 ( Pa. Cmwlth. 1988), affirmed , 574 A.2d 597 (Pa. 1990), this Court considered

whether a parolee is entitled to credit for time spent serving a concurrent sentence
while constructively parole d from the original sentence. In Merritt , the parolee was
concurrently serving an original sentence and two subsequent sentences. After t he
parolee was constructively paroled from his original sentence, he began serving the
remaining sentences to their minimum term

. He was then paroled but later

2 This Court’s review determines whether the Parole Board’s adjudication is supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).4

recommitted as a convicted parole violator. The Parole Board denied him credit on his original sentence for the period of time that he was constructively paroled

therefrom and serving his two concurrent sentences.

On appeal, this Court affirmed the Parole Board. We e xplained that the

fact that the parolee’s sentence s were concurrent did not entitle him to credit towards

his original sentence, from which he had been constructively paroled

. T he
Pennsylvania Supreme Court a ffirmed

, stating that , “one who is on constructive
parole is at liberty on parole on that particular sentence, and is not entitled to credit
against his original sentence for time spent on constructive parole.” Merritt

, 574

A.2d at 598.

Merritt teaches that when calculating a convicted parole violator’s

maximum date of sentence

, “ only time spent in custody serving that sentence is

considered time served. ” Spruill v. Pennsylvania Board of Probation and Parole
(Pa. Cmwlth., No. 1478 C.D. 2016, filed April 7, 2017), slip op. at 6 (unreported)
(emphasis added)

. 3 Therein, we explained :

One cannot “equate time served on parole with time served in an institution. Mere lapse of time without imprisonment ... does not constitute service of sentence.... It does not set aside or affect th e sentence.” Young v. Pennsylvania Board of Probation and Parole , 4 09 A.2d 843, 846

- 47 ( Pa. 1979) (internal quotations and citations omitted). As a result, a convicted parole violator is not entitled to credit for time spent on constructive parole from his sentence while continuing to serve another concurrent sentence because he is not serving the time on his sentence from which he was paroled.

3 An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedur es, 210 Pa. Code §69.414(a).5

Spruill , slip op. at 6. Thus, i n Spruill , this Court held that the parolee was not entitled

to credit toward s his original sentence

, from which he was constructively paroled

, albeit still incarcerated

. This is because the parolee “ could not serve his state
sentence while simultaneously being at liberty from it, his time served under the

federal detainer cannot be credited towards that state sentence.” Id

.

Rivera seeks an evidentiary hearing to determine whether he should be

awarded credit for the time he was constructively paroled from his original sentence
and in federal custody. A parolee on constructive parole is “at liberty on parole.”

Merritt , 574 A.2d at 598. A lthough Rivera remained incarcerated while on

constructiv e parole, the incarceration involved another matter unrelated to his
original sentence

. Thus, Rivera is not entitled to credit on his original sentence for

the time he served under the federal detainer

, and we will affirm this part of the

Parole Board’s adjudication.

Rivera also challenge s the Parole Board’s refusal to credit his time
spent at Kintock

. He claims that he is entitled to an evidentiary hearing to establish
that the Kintock program was the functional equivalent of incarceration, entit ling
him to credit towards his original sentence for his time at the facility. The law is

well

- settled that a parolee may be entitled to backtime credit for time spent in a
residential facility where the inmate demonstrates that the residential facility’s

characteristics a re equivalent to incarceration. Cox v. Board of Probation and

Parole , 493 A.2d 680 (Pa. 1985); Harden v. Pennsylvania Board of Probation and

Parole , 98 0 A.2d 691 (Pa. Cmwlth. 2009). Because the Board did not hold a hearing,

this Cour t lacks the record evidence needed to evaluate the custodial nature of

Kintock. T he Parole Board acknowledges that Rivera rais ed the issue of time spent

at Kintock and that he may be entitled to credit for th at period. The Parole Board6

requests that this Court remand the matter so that it can conduct a hearing on this

matter , and we will grant the request for remand

.

A ccordingly

, we vacate the Parole Board’s a djudication denying Rivera
credit for time spent at Kintock and remand this matter to the Parol e Board for a factual finding on the custodial nature of Kintock

. We affirm the remainder of the
adjudication.

MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antonio J. Rivera, : Petitioner :

:

v. : No. 1539 C.D. 2019

: Pennsylvania Board of Probation : and Parole, : Respondent :

O R D E R

AND NOW, this 9 th day of September , 2020, the Pennsylvania Board

of Probation and Parole’s (Parole Board) adjudication, dated October 15, 2019, is

V ACATED, in part, an d this matter is REMANDED to the Parole Board for
proceedings to make a factual determination as to the nature of Kintock’s program,
and whether the restrictions on Antonio J. Rivera’s liberty there w ere the equivalent

of incarceration t hereby entitling him to credit for his time spent in the program. The
remainder of the Parole Board’s adjudication is AFFIRMED.

Jurisdiction relinquished.

MARY HANNAH LEAVITT, President Judge