IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Wayne Sides, :

Petitioner :

:

v. : No. 725 C.D. 2016

: SUBMITTED: December 2, 2016

Pennsylvania Board of Probation and :

Parole, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE HEARTHWAY FILED: April 12, 2016

Anthony Wayne Sides petitions for review of the April 1 3 , 2016,

decision of the Pennsylvania Board of Probation and Parole (Board) , which

affirmed the Board’s decision mailed October 30, 2015, denying Sides credit on

his original sentence for the time he spent while on parole at the Gaudenzia First

Program, a community contract facili ty in Philadelphia (Gaudenzia). 1 We affirm.

Sides was originally sentenced to two

- to

- four years of incarceration

for a probation violation and criminal conspiracy to commit first degree murder.

1 Gaudenzia is a private entity that contracts with the Department of Corrections, Bureau

of Community Corrections to house and treat parolees.2

Sides ’ maximum release date was set at October 24, 2014. On November 20,

2012, the Board paroled Sides to reside at Gaudenzia with the condition of

successful completion of the program at Gaudenzia. Sides resided at Gaudenzia

from November 20, 2012 until March 26, 2013. On March 26, 2013, Sides

completed the p rogram at Ga u denzia and moved to an approved residence.

On May 11, 2014, Sides was arrested and placed into the Chester

County Prison. On that same date, the Board filed an order to detain Sides for 48

hours . On May 12, 2014, the Board issued a warrant to commit and detain Sides.

On June 24, 2014, the Board, after a preliminary parole hearing, issued an order to

detain Sides pending disposition of his criminal charges. Thereafter, Sides pled

guilty to p ossession of an i nstrument of c rime, u n lawful r estraint, and s imple

a ssault. On July 18, 2014, Sides was sentenced to two

- to

- four years of

incarceration. On September 2, 2014, Sides waived his revocation hearing before

the Board. By decision mailed November 7, 2014, the Board recommitted Sid es as

a convicted parole violator (CPV) to serve 18 months backtime with no credit for

his time at liberty on parole. Sides ’ maximum release date was set at September 4,

2016. 2

On December 1, 2014, Sides filed a request for an administrative

review, s eeking credit for the time he resided at Gaudenzia. The Board scheduled

an evidentiary hearing for October 15, 2015, at which Sides testified regarding his

2 The Board noted that this case is not moot because, even though Sides ’ maximum

release date has passed, the tim e credited is relevant to when he begins serving the sentence on

his new criminal charges.3

time at Gaudenzia from November 20, 2012, to March 26, 2013. A counselor at

Gauden zia also testifi ed regarding the facility and Sides ’ time there.

Following the hearing, the Board found that “Sides was not a resident

of a secure facility during the requested time credit period. . . .” (Board Decision,

F.F. No. 1, at 2.) The Board further found that “Gaudenzia . . . did not detain Sides

or refuse Sides’ right to depart the facility under his own power.” ( Id. )

The facility did not restrict Sides’ ability to leave because

residents were not locked in their rooms, the doors were

not locked from the inside going to the outside area and

residents were permitted to leave the facility for

approved periods without escort or restraints. There was

no fence around the facility nor were there bars on

windows and/or doors. Sides verified that while he was a

resident, he routinely signed out on passes.

( Id. , F.F. No. 2, at 2.) The Board in its decision mailed October 30, 2015,

concluded that Sides’ request for credit for his time at Gaudenzia was

“unsubstantiated and without merit” and denied his request. ( Id. , C.L. No. 4, at 2.)

Sides appealed.

On April 13, 2016, the Board’s appeal panel found no ground s to

grant administrative relief and affirmed the Board’s October 30, 2015 decision.

Sides now petitions this Court for review. 3

3 This Court’s review is limited to determining whether constitutional rights were

violated, whether an error of law was committed, or whether the findings of fact are supported by

substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.4 Section 6138(a)(2) of the Prisons and Parole Code (Code) , 61 Pa. C.S.

§ 6138(a)(2), provides that a parolee who is recommitted as a CPV “shall be

reentered to serve the remainder of the term which the parolee would have been

compelled to serve had the parole not been grante d and , except as provided under

paragraph (2.1), shall be given no credit for the time at liberty on parole.” 4 The

term “at liberty on parole” is not defined in the Code. Our Supreme Court has

determined that i t is the parolee ’ s burden to establish that the restrictions he was

under while “at liberty on parole” were the equivalent of incarceration, thus,

entitling him to credit. Cox v. Pennsylvania Board of Probation and Parole , 493

A.2d 680, 683 (Pa. 1985).

T his Court has repeatedly h e ld that parolees are not entitled to credit

for time they have reside d in community corrections centers, community

corrections facilities, or inpatient treatment pro grams where the Board determined

that the parolees failed to meet their burden of proving t hat the restrictions on their

liberty were the equivalent of incarceration. Medina v. Pennsylvania Board of

Probation and Parole , 120 A.3d 1116, 1119 (Pa. Cmwlth. 2015). In determining

whether a facility’s restrictions are equivalent to incarceration, th is Court has

considered the structural conditions of the facility, the rules of the facility, whether

the facility was locked, whether a parolee could leave unescorted, whether a

parolee would be prevented from leaving the facility, whether a parolee would be

treated as an absconder or an escapee if he left the facility, and whether the facility

4 Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2.1),

provides that “[t]he [B]oard may, in its discretion, award credit to a parolee recommitted under

paragraph (2) for the time spent at liberty on parole ....”5

had a fence. Id. at 1119

- 20. However, the most important factors are : (1) whether

the facility is locked or secured; and (2) whether a parolee is able to leave th e

facility without being restrained or escorted. Meleski v. Pennsylvania Board of

Probation and Parole , 931 A.2d 68, 73 n. 4 (Pa. Cmwlth. 2007). A reviewing

court may “not interfere with the Board’s determination of that issue unless it acts

arbitrarily or plainly abuses its discretion.” Cox , 493 A.2d at 683 ; see Jackson v.

Pennsylvania Board of Probation and Parole , 568 A.2d 1004, 1006 (Pa. Cmwlth.

1990)

.

Here, Sides argues that Gaudenzia was sufficiently restrictive to be

considered incarceration

. Specifically, Sides asserts that upon arrival at Gaudenzia

he had to be buzzed into the facility by a receptionist

, and was met by staff,

searched, and given the rules and regulations of the facility. While a resident,

Sides further contends he was not permitted to leave until he reached a certain

level, was mandated to attend morning meetings, and was subject to head

- counts

and being observed on monitors placed throughout the building.

T he Board , however, found that Gaudenzia : (1) was not a secure

facility ; (2) did not detain or refuse Sides’ right to depart t he facility under his own

power; (3) did not restrict Sides’ ability to leave ; (4) did not lock any resident in

his room ; (5) did not lock doors from the inside going outside ; (6) permitted

residents to leave for approved periods without escorts or restraints ; (7) did not

have a fence around the facility, or bars on the windows and doors ; and (8)6

routinely permitted Sides to sign out on passes

. 5 (Board Decision, 10/30/15, F.F.

Nos. 1

- 2.) The Board determined that Gaudenzia does not have sufficient

custodial aspects to characterize the time spent there as confinement rather than at

liberty. A careful review of the testimony, including Sides’ own statements,

provide substantial evidence to support the Board’s finding.

Accordingly, because the Board has not acted arbitrarily or abused its

discretion, we affirm.

__________________________________ JULIA K . HEARTHWAY, Judge

5 The record reflects that Sides was permitted to leave Gaudenzia, and did so on many

occasions starting December 3, 2012. (Supp. C.R. at 25a.) The record also re flects that Sides

could have left anytime he chose, but that he did not leave the facility for 13 days, from

Nov ember 20 to December 3, 2 012.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Wayne Sides, :

Petitioner :

:

v. : No. 725 C.D. 2016

: Pennsylvania Board of Probation and :

Parole, :

Respondent :

O R D E R

AND NOW, this 12 th day of April, 201 7

, the order of the

Pennsylvania Board of Probation and Parole in the above

- captioned matter is

affirmed.

__________________________________ JULIA K . HEARTHWAY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Wayne Sides

, :

Petitioner :

:

v. :

: Pennsylvania Board of :

Probation and Parole, : No. 725 C.D. 2016

Respondent : Subm itted: December 2

, 2016

BEFORE: HONORABLE ROBERT SIMPSON

, Judge

HONORABLE JULIA K. HEARTHWAY

, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE COSGROVE FILED: April 12, 2017

This is not the first time this Court has addressed questions of whether

time spent in the Gaudenzia First program while on parole may be credited to the

parolee. In Meleski v. Pennsylvania Board of Probation and Parole

, 931 A.2d 68

(Pa. Cmwlth. 2007), a case relied upon by the majority to support a portion of its

decision, this Court found the parolee eligible for credit for his time at Gaudenzia

prior to his taking a test for “phase two” status. In the present case, the Board’s

witness, Louise King, a G audenzia counselor, testified that Gaudenzia has in place

a “level system, and that an offender has to reach a certain level before they [sic]

can leave the facility.” ( Brief of Respondent at 7. ) According to Ms. King, “she

believed it took Sides two wee ks to get to level one, and at that level, Sides could

leave the facility with a pass.” Id.JMC

- 2 Mr. Sides experienced, at least in his initial phase, sufficient

restriction in the same rehabilitation entity as the Meleski petitioner, to find that he

was “no t at liberty on parole.” As the Board was wrong in its assessment of the

Gaudenzia restrictions in Meleski

, it is wrong here as well. Since the majority

finds otherwise, I must dissent.

___________________________ JOSEPH M. COSGROVE, Judge