Harden v. Pennsylvania Board of Probation & Parole

980 A.2d 691, 2009 Pa. Commw. LEXIS 750, 2009 WL 2003438

• Court: Commonwealth Court of Pennsylvania
• Decided: July 13, 2009
• Docket: 401 C.D. 2008
• Status: Published

Opinions

OPINION¹ BY

Judge LEAVITT.

Raymon Harden petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) that declined to revise the maximum sentence date it calculated for Harden after he was recommitted as a convicted parole violator. Harden contends that the Board abused its discretion by refusing to give him credit for the time he spent in two residential programs while on parole. The Board concluded that Harden’s evidence did not overcome the presumption that his attendance in each residential program was time “at liberty on parole.” Concluding that the Board did not plainly abuse its discretion in reaching this conclusion, we affirm.

The background to this case follows. In April 2002, Harden was sentenced to serve three to ten years for a drug sales conviction and was sent to the State Correctional Institution at Coal Township (SCI-Coal). On April 18, 2004, Harden was paroled, subject to a special condition that he successfully complete a residential drug and alcohol treatment program at Penn Pavilion. Certified Record at 3, 4 (C.R.-). Harden did not appeal this condition. Harden entered Penn Pavilion on October 18, 2004, where he stayed until March 22, 2005, successfully completing the program. He was then released to home monitoring. However, Harden removed the electronic monitoring device, thereby violating his parole. As a result, Harden’s April 2004 parole order was amended to add a new special condition. State’s Exhibit 2; C.R. 70. Under this new condition, Harden entered a “Halfway Back Program” at Renewal, a facility in Pittsburgh, where he resided from June 21, 2005, to October 13, 2005. Again, Harden successfully completed the program.

On September 27, 2006, Harden was arrested. Thereafter, he was convicted and sentenced to thirty days of imprisonment. On May 2, 2007, the Board recommitted Harden as a convicted parole violator and recalculated Harden’s maximum sentence date for his 2002 drug sales conviction. Harden appealed, arguing that the Board should have credited the time he spent at Penn Pavilion from October 18, 2004, through March 22, 2005, and at Renewal from June 21, 2005, through October 13, 2005, towards his 2002 sentence.

The Board conducted an evidentiary hearing at SCI-Coal, where Harden was serving his 2002 sentence. The purpose of this hearing was “to determine the custodial nature of the inpatient programs at Penn Pavilion ... and Renewal.” Hearing Notice, C.R. 17. The hearing examiner divided the proceeding into two parts: one addressing conditions at Penn Pavilion and the other addressing conditions at Renewal.

With respect to Penn Pavilion, Harden testified that he was not allowed to leave the building during the first 90 days for any reason. On further examination by his counsel, however, Harden stated that he was permitted to leave the facility “two or three times” for medical treatment during the first 90 days, accompanied by a staff member. Notes of Testimony 10/22/07 at 8 (N.T. -). Harden then testified that at different points during the first 90-day period, he was allowed to leave the facility unescorted for personal errands and medical treatment; however, Harden could not recall when these trips occurred. Harden stated that after the initial 90-day period, he was allowed to make home visits; however, he explained that he had to “call in and let them know where I was or turn myself in.” N.T. 12. He stated that otherwise “I would be considered escaped from the program and they would notify parole or what have you.” Id. Harden also testified the ground floor doors and windows at Penn Pavilion were locked and alarmed, which would have alerted the staff that someone was “leaving the building without permission.” N.T. 14. Harden’s days at Penn Pavilion were structured in that he ate meals at regularly scheduled times and was required to attend treatment programs at specified times. Finally, Harden testified that he was “court ordered into th[e] program.” N.T. 15.²

Martie Anderson, Chief of Programs at Penn Pavilion, testified for the Board. She explained that there is no fence around the building; residents are not locked in; doors are locked to prevent intruders from entering the building; and no staff member would ever attempt to restrain a client from leaving the facility. Anderson testified that Harden participated in two programs at Penn Pavilion: the inpatient program and the work release program. Anderson testified about the general practices at Penn Pavilion because Harden’s individual records had, for the most part, been purged. She explained that the standard inpatient program runs for approximately 45 days, and it is followed by the work release program for those inpatients that have not yet had a home plan approved. Those enrolled in either program may leave the facility for “authorized work or leisure activities.” N.T. 18. Those on work release come and go from the facility while they work, look for work or look for a place to live. Inpatients are allowed to leave the facility at the beginning and end of the program to conduct whatever personal business they wish, including family visits. When inpatients leave Penn Pavilion to attend medical appointments, they are escorted by staff who provide transportation assistance. Inpatients are allowed outside on the grounds of the facility, where a staff member is present. Anderson testified that Harden entered the inpatient program on October 19, 2004, and completed it on December 8, 2004, at which point he entered the work release program for the duration of his stay. Anderson stated that those who attempt to leave the Penn Pavilion facility are not charged with escape.

With regard to Renewal, Harden testified that upon admission, he was not permitted to do anything for the first 72 hours until he met with his counselor to set up his schedule. Once his schedule was established, he was allowed to come and go from the facility. Harden stated that the doors were locked and alarmed to keep people from leaving. Harden also testified that he was required to take a breathalyzer upon returning to the facility; to submit to random urine samples; and to participate in community service. Harden performed his community service both in the Renewal building and at the YMCA directly across the street.

Morris Richardson, one of the directors of Renewal, then testified. He stated that there is no fence around the facility; residents are not locked in; doors are locked on the outside to prevent unauthorized people from entering; and the staff does nothing to restrain people from leaving the facility. He testified that Harden left the facility for work each day on his own, ie., without an escort. In addition, Renewal’s records showed that Harden left for medical appointments, shopping trips, home visits, trips to the Social Security office, church, community service, several different barber shops and other places. Harden had to record these trips on a schedule card, the purpose of which was to teach accountability. Richardson stated that if a resident walked out the door without approval, he would be discharged from the program but not charged with escape.

The Board found that Harden’s stay at Penn Pavilion from October 18, 2004, through March 22, 2005, and at Renewal, Inc. from June 21, 2005, through October 13, 2005, was not the equivalent of incarceration. Accordingly, it denied Harden’s request for credit, explaining as follows:

The Board finds that the Parolee: (1) has not rebutted the presumption that he was at liberty on parole during his attendance at [the group homes]; (2) did not meet his burden of producing evidence to prove that specific characteristics of the [group homes] constituted restrictions on his liberty sufficient to warrant credit on the sentence from which he was on parole during his attendance; and (3) has not persuaded the Board that specific characteristics of the [group homes] constituted restrictions on his liberty sufficient to warrant credit on the sentence from which he was on parole during his attendance.

Board Decision, November 29, 2009; C.R. 72. On March 25, 2008, the Board issued its adjudication denying Harden’s administrative appeal of the Board’s decision and order. Harden now petitions this Court for review.³

Harden presents one issue on appeal, namely, that each residential program was the equivalent of incarceration and, therefore, he is entitled to credit toward his 2002 sentence for the time he spent in each program. Harden requests this Court to rule “on the specific facts of record in his situation.” Petitioner Brief at 8.

The “specific facts” that Harden believes relevant to his argument were established, he argues, by his testimony. At Penn Pavilion, he was not allowed to leave the facility for 90 days; if he left for medical appointments, he was escorted; when he left the facility, there were restrictions, such as having to report his actions; meals, cleaning and treatment programs were scheduled each day; and the doors and windows on the first floor were locked and alarmed. With respect to Renewal, Harden argues that “much of the same restrictions were applied.” Petitioner Brief at 7. In determining whether either program was the equivalent of prison, Harden notes that the deciding factors are whether the resident is locked in and whether he may leave without physical restraint. Id. at 8. Harden concedes that his description of Penn Pavilion was contradicted by the Board’s witness, but he nevertheless believes that he proved both facilities were the equivalent of prison.⁴

The Board counters that Harden’s testimony did not overcome the presumption that he was at liberty on parole while at Penn Pavilion and Renewal. It argues that Harden’s evidence did not show that he was “ever subject to a rule against leaving without a mandatory coercive security escort” at either facility. Respondent Brief at 8. Accordingly, it argues that the Board did not abuse its discretion by concluding that Harden failed to prove that either group home was “a prison equivalent.” Id. at 2 n. I.⁵

We begin with a review of the applicable law. Section 21.1(a) of the act commonly known as the Parole Act⁶ (Act) provides, in relevant part, that the Board may recommit any parolee who, during the period of parole, “commits any crime punishable by imprisonment, for which he is convicted or found guilty....” 61 P.S. § 331.21a(a). If a parolee is recommitted, he must serve the remainder of the term which he would have been required to serve had he not been paroled, and he “shall be given no credit for the time at liberty on parole.” Id.

The phrase “at liberty on parole” is not defined in the Act. Our Supreme Court has explained that “at liberty on parole” does not mean that a parolee must be actually “free” of restraint. To the contrary, a parolee can be considered “at liberty” even while in prison, so long as the parolee is not in prison for the purpose of serving his original sentence. Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 146 n. 2, 420 A.2d 381, 383 n. 2 (1980).⁷ In Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 620, 493 A.2d 680, 683 (1985) the Supreme Court explained that “all forms of parole involve some restraint on the parolee’s liberty, and non-compliance with them can result in arrest and recommittal as a technical parole violator.” Stated otherwise, the imposition of restraints on a parolee’s liberty is part and parcel of being “at liberty on parole.”

In Cox, the Board argued that a parolee’s attendance in a residential facility should always be considered “at liberty on parole” because it is a condition agreed to by the parolee. However, the Supreme Court declined the Board’s invitation to issue a per se rule that all time spent in a residential facility as a condition of parole is time “at liberty on parole.” Instead, the Supreme Court left the door open to a parolee to make the case that a particular residential facility is the equivalent of a prison, thereby entitling the parolee to sentence credit for time spent at that facility.⁸

However, the Supreme Court also established jurisprudential principles in Cox that make it difficult for a parolee to make such a case. These essential principles are as follows:

1. Because a parolee does not enter a residential facility pursuant to a court order but, rather voluntarily agrees to do so “as part of his parole program, his attendance there is presumed to be at ‘liberty on parole.”’ Id. at 616, 493 A.2d at 681 (emphasis added).

2. The presumption that attendance at a residential facility is “at liberty on parole” may be rebutted. However, it is the burden of the parolee to develop a factual record and to persuade the Board that the residential program he attended was a “prison equivalent precluding the conclusion that [the parolee] was at ‘liberty on parole.’ ” Id. (emphasis added).

3. If the Board is not persuaded that the parolee did time in a “prison equivalent,” courts should “not interfere with the Board’s determination of that issue unless it acts arbitrarily or plainly abuses its discretion.” Id. at 620, 493 A.2d at 683 (emphasis added).

Stated otherwise, the Cox principles make it difficult for a parolee to rebut the presumption that time spent in a residential facility is not entitled to sentence credit.

This Court’s first post-Coic decision was Jackson v. Pennsylvania Board of Probation and Parole, 130 Pa.Cmwlth. 527, 568 A.2d 1004, 1006 (1990). At the facility in question, Eagleville Hospital, the parolee was free to leave without physical restraints, although the parole authorities would be contacted. Further, parolees were not locked in, and the facility was not fenced. Based on these relevant facts, we held that the Board correctly concluded that the facility was not a prison equivalent.

This Court’s holding in Meehan v. Pennsylvania Board of Probation and Parole, 808 A.2d 313, 317 (Pa.Cmwlth.2002), is also instructive. In Meehan, the parolee, Mee-han, sought credit for the time he spent at Keenan House, a drug and alcohol treatment facility in Allentown. Meehan argued, inter alia, that because some of the persons at Keenan House were pre-release inmates who got credit for their time, it was unfair and a violation of equal protection not to give him, a parolee, credit for time spent at the same facility. We rejected Meehan’s argument, noting that there was a difference between parolees and pre-release inmates by reason of their status. An inmate is in “official detention,” even while on leave in a facility such as Keenan House and, thus, can be charged with escape. By contrast, a parolee is not in official detention but only “under supervision” and, thus, could not be charged with the crime of escape for absconding from Keenan House. This different status, we held, justified treating pre-release inmates and parolees at Keenan House differently for purposes of sentence credit.

In reaching this conclusion, the Court looked at the statutory meaning of “official detention.” 18 Pa.C.S. § 5121(e). Notably, “official detention” is “for law enforcement purposes ... but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.” Id. (emphasis added). Because Meehan was on parole, he was under “supervision” at Keenan House; he was not there for “law enforcement purposes.” Meehan could have

walked through doors that were not locked in such a way as to prevent one on the inside of Keenan House from leaving and ... no one would have tried to stop [Meehan] from walking out one of those doors.

Meehan, 808 A.2d at 316. However, Mee-han would not commit a crime by walking through those doors.

Notably, the evidence in Meehan showed that the program at Keenan House was restrictive. Parolees were “closely monitored,” with three head counts per day that were reported to the Department of Corrections. Id. at 316. The first floor doors and windows were alarmed. A parolee could not go outside, except in the company of another patient or parolee. Recognizing the deference owed to the Board, this Court held that the Board did not abuse its discretion in holding that the parolee did not prove that Keenan House was so restrictive as to constitute a prison equivalent, notwithstanding its “close monitoring.” Id.

In Torres v. Pennsylvania Board of Probation and Parole, 861 A.2d 394 (Pa.Cmwlth.2004), the Board proposed that this Court adopt a “bright line” test for determining sentence credit cases. It proposed, relying on Meehan, that the status of the resident be determinative of credit. The Board argued that where time spent in a drug and alcohol treatment facility was not for the purpose of law enforcement, that should end the sentence credit inquiry. This Court rejected the Board’s argument, noting, inter alia, that Cox established that in these cases there can be no per se rule.

The Court went on to consider the evidence presented by Torres and concluded that he was entitled to credit for time spent at Conewago-Wernersville, a licensed drug and alcohol treatment facility similar to Keenan House, which had been the subject of Meehan. At Conewago-Wernersville, Torres was under 24-hour supervision and was not permitted to leave the building, except to attend weekly “meetings approved or ordered” and “under the supervision of Conewago staff.” Torres, 861 A.2d at 400. Staff did not simply provide transportation assistance but, rather, functioned as a “coercive security measure.” Id.9

We turn to Harden’s appeal. 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. See, e.g., Jackson, 130 Pa.Cmwlth. 527, 568 A.2d 1004; Meehan, 808 A.2d 313; Willis v. Pennsylvania Board of Probation and Parole, 842 A.2d 490, 491 (Pa.Cmwlth.2004). Harden’s testimony about the structural conditions at Penn Pavilion and Revewal did not make his case.

The central question, then, is whether the rules at each facility were so restrictive as to make the facility the equivalent of a prison. The most restrictive period at either facility was the inpatient program at Penn Pavilion. Harden emphasizes that his days were structured, noting that meals and treatment programs were held at regular times. A schedule does not make a residential treatment facility a prison equivalent. Every institution, whether a school, church, hospital or court, uses a schedule. In addition, the fact that a program uses “close monitoring” does not overcome the presumption that Harden’s attendance was “at liberty on parole.” Meehan, 808 A.2d 313.

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, but he could not remember when these trips occurred. As explained in Figueroa v. Pennsylvania Board of Probation and Parole, 900 A.2d 949 (Pa.Cmwlth.2006), being able to leave a facility for personal errands is most assuredly not a feature of doing time in prison. This leaves the question of the escorts that accompanied Harden on medical appointments. Notably, Harden offered no explanation of these medical appointments and whether they were emergency appointments occasioned by accident or illness or regular check-ups scheduled well in advance.

The word “escort” is subject to a variety of meanings. It could describe an armed guard or a taxi driver in the employ of the facility. Illustrative is YellowBear v. State, 874 P.2d 241 (Wyo.1994). In that case, the probationer was sent to an alcohol treatment facility by court order. The probationer was not permitted to leave the facility except in the custody of the sheriff. If the probationer violated any program rule, the sheriff would escort the probationer back to jail. The use of an armed escort was given substantial weight in reaching the conclusion that the probationer was entitled to sentence credit while at the facility.¹⁰

None of the facilities considered by this Court in prior cases have ever involved escorts by a sheriff, and none had their rules enforced by threat of immediate “escort” to jail by a sheriff. In Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187, 191 (Pa.Cmwlth.2004), this Court denied sentence credit, inter alia, for the reason that staff members were counselors, not law enforcement officers. Harden has provided no information that would allow a factfinder to find that staff who accompanied him on medical appointments functioned as guards, as opposed to Wagner-type counselors.

The use of “escorts” at a facility does not, in itself, show that the facility is a prison equivalent. The “escort” may be an armed law officer, a lifeguard at a pool, a person providing transportation assistance, or just another patient or parolee. Because the term “escort” can be given a wide variety of meanings, the parolee does not sustain his evidentiary burden simply by slipping the word “escort” into the rec-ord. Instead, it is the parolee’s burden to prove factually that the “escort” exercises a coercive function and does not function as a counselor, whose goal is to advance treatment or to provide transportation assistance.

Here, Anderson testified that the staff who accompany inpatients to medical appointments provide transportation assistance. Harden presented no contrary evidence. The Board did not plainly abuse its discretion or act arbitrarily in finding Harden’s evidence with respect to the use of an “escort” inadequate to rebut the presumption that Penn Pavilion was not the equivalent of a prison during the most restrictive period, ie., the first 45 days. That being the case, Harden’s evidence did not rebut the presumption with respect to the less restrictive periods at Penn Pavilion and at Renewal.

For a parolee to overcome the presumption that time spent in a residential facility is not the equivalent of a prison, he must do more than recite his subjective impressions. Figueroa, 900 A.2d at 953. The parolee must lay an evidentiary foundation. This should not be difficult since every parolee has spent time in prison. Here, Harden simply assumed that the essential quality of a prison is the use of a schedule. However, as noted, human institutions, residential or otherwise, are governed by schedules. Further, assumptions have no place in an evidentiary proceeding. The essentials of prison, as opposed to other institutional settings, is the inability to walk away without having to unlock a door; without committing a crime; and without risking physical restraint. Jackson, 568 A.2d at 1006.¹¹ If there are other essentials to a prison, it is the parolee’s evidentiary burden to establish them.

We recognize that this is not an easy task. Private drug and alcohol treatment facilities that do not treat parolees, but only private citizens, may also impose close supervision and restrictions on patients. Indeed, our Supreme Court has observed that a “custodial hospital environment” for treatment of alcoholism restrains the liberties of its patients. Commonwealth of Pennsylvania v. Conahan, 527 Pa. 199, 203, 589 A.2d 1107, 1109 (1991) (holding that the trial court did not abuse its discretion by awarding DUI defendant 30 days credit towards his minimum, mandatory sentence after spending 95 days, at his own expense, in a hospital that treated the defendant’s alcoholism in a way that was restrictive of his liberties).¹²

Because of the paucity of evidence presented by Harden, there is no basis for this Court to conclude that the Board plainly abused its discretion in holding that Harden did not overcome the presumption that his time at Penn Pavilion and Renewal was time “at liberty on parole.” We will not, and cannot, substitute our judgment for that of the Board under the deferential standard required by Cox.13 Indeed, it is error to “interfere with the Board’s determination unless it acts arbitrarily or plainly abuses its discretion.” Cox, 507 Pa. at 620, 493 A.2d at 683.

Accordingly, we affirm the Board.

ORDER

AND NOW, this 13th day of July, 2009, the order of the Pennsylvania Board of Probation and Parole, dated February 5, 2008, is hereby AFFIRMED.

1 . This opinion is filed in accordance with Section 256(b) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa. Code § 67.29(b).

2 . Parole orders are issued by the Board, not by a court.

3 . This Court's review of an action of the Board is limited to a determination of whether the Board's findings are supported by substantial evidence, whether an error of law was committed, or whether any of the parolee’s constitutional rights were violated. Carter v. Pennsylvania Board of Probation and Parole, 936 A.2d 155, 156 n. 3 (Pa.Cmwlth.2007). We will not interfere with a determination unless the Board has acted arbitrarily or plainly abused its discretion. Houser v. Pennsylvania Board of Probation and Parole, 874 A.2d 1276, 1278 n. 2 (Pa.Cmwlth.2005).

4 . Indeed, Harden contradicted himself. He testified that he could not leave Penn Pavilion for 90 days but then stated that he was allowed to leave, without an escort, from time to time.

5 . This case was listed for argument en banc seriatim with Pierre v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1110 C.D.2008). The parties were directed to address the following issues at oral argument.

1. Is a residential facility that treats parolees as well as prisoners on pre-release status necessarily a "prison equivalent?"

2. Is a residential facility that treats private patients as well as parolees, as was the case in Jackson v. Pennsylvania Board of Probation and Parole, 130 Pa.Cmwlth. 527, 568 A.2d 1004 (1990), necessarily not a "prison equivalent?”

3. What, if any, foundational evidence must be presented by a parolee to show that a particular treatment practice or rule makes ths residential facility a "prison equivalent?”

4.Do prisons use rules similar to those rules employed by residential facilities during the "blackout period?” What is the purpose of the "blackout period?”

Order, March 23, 2009. The argument did not resolve the question of how a prison differs from (1) a residential facility for parolees who receive treatment, inter alia, for substance abuse or (2) from a residential facility that treats exclusively private individuals for substance abuse. All residential facilities have rules that appear restrictive. Only residents of prisons are locked in each night or prevented from leaving by armed guards.

6 .Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a. Section 21.1 was added by Section 5 of the Act of August 24, 1951, P.L. 1401.

7 . By the Hines logic, it is not the prison or its rules that determines "at liberty” but, rather, the status of being "on parole.” A parolee in prison for an arrest on a new criminal act is technically still "at liberty” so long as his parole on the original sentence is not revoked.

8 . Most states do not give sentence credit for time spent in a residential treatment or rehabilitation program by a probationer or parolee. Lee R. Russ, Annotation, Defendant’s right to credit for time spent in halfway house, rehabilitation center, or other restrictive environment as condition of probation, 24 A.L.R.4th 789, 791 (1983). An exception is the State of California, which has adopted a statute that provides that "any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, or similar situation ... shall be credited upon [a probationer's] sentence.” Cal.Penal Code § 2900.5; People v. Rodgers, 79 Cal.App.3d 26, 144 Cal.Rptr. 602 (1978) (time in a facility was entitled to sentence credit under Section 2900.5 where, inter alia, male residents undergo head shaving, are banned from leaving the property for any reason for six months, and could not communicate with spouse or children for one year).

In states without a statute such as that enacted in California, the courts focus on what constitutes "creditable custody.” Neil P. Cohen, The Law of Probation and Parole, 2d. ed. § 28:11 (1999) at 28-24. The relevant factors in this focus are: whether the offender's participation was voluntary; whether the offender was free to leave; whether the facility is private or public; and whether the offender could be charged with escape if he eloped from the facility. Id. If the parolee agreed to enter the facility and can leave without committing a new crime, i.e., the crime of escape, the parolee is generally not entitled to "creditable custody.”

9 . Likewise, in Meleski v. Pennsylvania Board of Probation and Parole, 931 A.2d 68, 72 (Pa.Cmwlth.2007), the evidence showed that the escort exercised a "mandatory coercive” effect, as opposed to “transportation assistance.” However, in Meleski, the use of escorts was not the deciding factor. It was also critical that the parolee could not leave the seventh floor of the facility, except for meals.

10 . However, it was also significant that the probationer was in the program by court order and that the rule violation was enforced by an automatic return to jail. YellowBear, 874 P.2d at 245. A Pennsylvania parolee who violates a program rule may or may not be charged with a parole violation, and that violation may or may not result in a parole revocation.

11 . Harden’s counsel observed at argument that prisoners on work release are allowed to leave each day unescorted to work but must return to the prison at the conclusion of the work day. There is nothing in the record about prison work release programs. Counsel made this point to argue that being able to leave a facility, such as Penn Pavilion or Renewal, is irrelevant to the question of whether the facility is prison-like. Harden argues that sentence credit should always be awarded for time spent in a residential facility as a condition of parole. First, Cox established that time spent in a residential facility such as Renewal or Penn Pavilion is presumed to be at liberty on parole. Second, prisoners on work release are locked up each night and cannot leave without committing the crime of escape. By contrast, Harden was not locked in at night at either facility.

12 . The Supreme Court cautioned, however, that an individual accused of DUI has no right to expect, as a matter of routine, credit for time spent in such a facility.

13 . The dissent proposes that all time spent in a residential facility, as a condition of parole, be given sentence credit for the reason that the facility is under contract with the Department of Corrections. This would be a rule easy to apply, and there may be sound policy reasons for such a rule. However, such a rule cannot be adopted unless and until the Supreme Court overrules Cox or the legislature amends The Parole Act.

The dissent replaces Cox’s rebuttable presumption that a residential facility for the recently paroled is not a prison equivalent with an irrebuttable presumption that it is. Cox places the burden on the parolee to rebut the presumption. The dissent reduces the parolee's evidentiary burden to zero because it will be impossible to place a parolee in a facility that does not have a contract with the Commonwealth. These aspects of the dissent’s proposal cannot be squared with Cox.

The legislature can make the policy decision to specify what constitutes "at liberty on parole.” It could decide, for example, that because all parole conditions restrain liberty to some degree, parolees should be given sentence credit for each day they comply with those conditions. Notably, however, Cox rejected the concept that any restraint on liberty was enough to earn sentence credit. The legislature could, alternatively, decide that any parole condition that involves a residency requirement entitles the parolee to sentence credit for the duration of the residency. This is the dissent’s proposal, and California, for one, has adopted such legislation. As a matter of policy, however, the parolee should be required to complete the program successfully as a condition precedent to earning sentence credit for each day in a residential facility.

The dissent argues that the Department of Corrections operates "less restrictive facilities” than a "regular prison.” The record is devoid of evidence as to what constitutes a "regular prison” or a "less restrictive facility-”