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Wilk v. Pennsylvania Board of Probation and Parole10/27/2005
Keith D. Wilk, a recommitted technical and convicted parole violator, petitions for review of a decision of the Pennsylvania Board of Probation and Parole (Board) that denied his request for credit toward his recalculated sentence for time spent at Penn Pavilion (Penn), Alle-Kiski Pavilion (Alle-Kiski) and Renewal Community Corrections Center (Renewal). Wilk contends that the Board should be required to grant him credit because these inpatient facilities were restrictive placements that were made mandatory by the Board.
On July 15, 2002, the Board reparoled Wilk to complete phases II and III of a Residential Substance Abuse and Treatment (RSAT) program at Penn upon his successful completion of RSAT phase I. Wilk thereafter was transferred from Penn on December 31, 2002 to Alle-Kiski where he was successfully discharged on January 17, 2003. While under parole agent supervision he tested positive for cocaine and was sent to Renewal on July 14, 2003 where he was successfully discharged on October 16, 2003. In June 2004 Wilk was recommitted as a technical and convicted parole violator to serve nine months backtime due to a new arrest on charges of driving under the influence , and the Board recalculated his parole violation maximum date to October 19, 2011 with no credit for the time he spent at Penn, Alle-Kiski or Renewal. An evidentiary hearing was held in January 2005 to determine the custodial nature of the inpatient programs at Penn, AlleKiski and Renewal. David Jenkins, a parole agent at Penn and Alle-Kiski, Barry Bertocki, a parole agent at Renewal, and Wilk testified about conditions imposed on program residents.
Jenkins testified that during the first week at Penn a resident is not allowed to leave the facility unescorted. Otherwise the main entrance is controlled by a monitor, and residents are not restrained when exiting through this entrance or through one of the back doors by pushing a crash bar. Part of the backyard is enclosed by barbed wire fencing; however, there is a gate that is not locked. The windows are latched but can be broken. Wilk testified that he was transported to Penn in handcuffs and shackles, and he was told that if he left Penn he would be charged with escape and that his participation in the program was mandatory. Wilk eventually could leave the building with permission; he had to provide his weekly work schedule to the staff; he had to check in from work or a Penn employee would call the employer ; and nightly counts were performed although Wilk was not locked in his room. Jenkins testified that Alle-Kiski is a sister facility of Penn with similar rules and regulations. The differences are that the doors are locked from the outside, and the doors and windows have alarms. Wilk added that there are no barbed wire fences and that he had access to his truck.
Bertocki testified that when a resident arrives at Renewal he cannot leave for the first twenty-eight days and is escorted to meals at the work release building and to all offsite activities. Wilk offered that during the initial period he was not allowed to use the elevator, the doors and windows had alarms and random searches, breathalyzers, urine tests and population counts were performed. Bertocki noted that a resident in the work release program may leave the facility without permission, although the resident must be "buzzed out." In addition, a parole agent will be contacted if a parolee escapes; site verifications and phone contacts are made when a resident leaves the building; a curfew is set; and residents can obtain passes to attend church services.
The hearing examiner found that the custodial nature of Penn, AlleKiski and Renewal was not so restrictive as to rise to the
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