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 an adjudication of the 

Pennsylvania 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. For the reasons that follow, we affirm in part, and vacate and remand

in part.

On February 25, 2014, Rivera was convicted on drug charges and

sentenced by the Lancaster County Court of Common Pleas to a term of two years 

 

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 months 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. On September 9, 2016, Rivera left Kintock, with approval, to

reside with his grandmother.

On May 2, 2018, Rivera was arrested on new drug charges. On May 3, 

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

incarcerated on the new criminal charges.

Subsequently, on May 24, 2019, Rivera was convicted of conspiracy to 

deliver a controlled substance. On August 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, the 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 recalculated 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 29, 2016, to September 9, 2016). On 
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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 so that he can establish that he is entitled to credit for the time 

he spent on parole at a federal prison and as 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 from his original sentence even though he was incarcerated 

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

that Rivera is entitled to an evidentiary hearing to determine whether conditions in 

the facility were the functional equivalent of incarceration. 

Where 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 Merritt 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 paroled from the original sentence. In Merritt, the parolee was 

concurrently serving an original sentence and two subsequent sentences. After the 

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 explained that the 

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

his original sentence, from which he had been constructively paroled. The 

Pennsylvania Supreme Court affirmed, 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 the sentence.” Young v. Pennsylvania Board of Probation 

and Parole, 409 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 

Procedures, 210 Pa. Code §69.414(a).
5

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

to credit towards 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. Although Rivera remained incarcerated while on 

constructive 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 challenges 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, entitling 

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 are equivalent to incarceration. Cox v. Board of Probation and 

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

Parole, 980 A.2d 691 (Pa. Cmwlth. 2009). Because the Board did not hold a hearing, 

this Court lacks the record evidence needed to evaluate the custodial nature of 

Kintock. The Parole Board acknowledges that Rivera raised the issue of time spent 

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

Accordingly, we vacate the Parole Board’s adjudication denying Rivera 

credit for time spent at Kintock and remand this matter to the Parole Board for a 

factual finding on the custodial nature of Kintock. We affirm the remainder of the 

adjudication.

 

 MARY HANNAH LEAVITT, President Judge
IN 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 9th day of September, 2020, the Pennsylvania Board 

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

VACATED, in part, and 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 were the equivalent 

of incarceration thereby 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