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Wilk v. Pennsylvania Board of Probation and Parole10/27/2005
t both facilities Wilk was not permitted to leave without an escort. When Wilk arrived at Penn, he was told that if he left he would be charged with escape. At Renewal he could not use the elevators, and the doors and windows had alarms. Bertocki testified that Wilk could go out for recreation with an escort; however, there is no evidence that this was different from the type of recreation permitted to incarcerated individuals. Accordingly, credit must be given Wilk for these initial periods of restrictive confinement.
After the initial periods, however, the conditions at the facilities resemble those in other cases where the parolee was denied credit. See, e.g., Houser. Wilk was permitted to leave the facilities without an escort, he could work outside the facilities and the doors were not locked from the inside. Although part of the backyard at Penn is enclosed with barbed wire fencing, the gate was not locked, and Wilk had access to his vehicle at Alle-Kiski. The fact that he was subject to random searches and that breathalyzer and urine tests were performed does not change the result because this level of supervision is common during parole. Curfews and night counts indicate whether a parolee has escaped and do not sufficiently restrict Wilk's liberty.
In sum, because the Board abused its discretion in denying credit for Wilk's first week of confinement at Penn and the initial twenty-eight days at Renewal (thirty-five days), the Court reverses the Board's order to that extent and directs that Wilk be given credit for these periods. The Court holds that the Board correctly determined that Wilk did not meet his burden of proving that the specific characteristics of the programs restricted his liberty sufficient to warrant a credit beyond the periods allowed, and the Board's order is affirmed to that extent.
ORDER
AND NOW, this 27th day of October, 2005, the order of the Pennsylvania Board of Probation and Parole is reversed to the extent that it denied Keith Wilk credit for the first week of confinement at Penn Pavilion and the first twenty-eight days at Renewal Community Corrections Center. The Court affirms the Board's order in all other respects.
DORIS A. SMITH-RIBNER, Judge
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