Getting Arrested on New Criminal Charges During Pre-Release Outpatient Program
In Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187 (Pa. Cmwlth. 2004), this Court limited the applicability of McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 (Pa. Cmwlth. 2003), appeal dismissed as moot, 580 Pa. 361, 861 A.2d 262 (2004) to a situation where the parolee was in pre-release status rather than on parole.
In Wagner, Patrick Wagner (Wagner) was paroled to the inpatient program of the Diagnostic and Rehabilitation Center (DRC) in Philadelphia.
After his release to the outpatient program, Wagner was arrested on new criminal charges and on parole violations.
He was subsequently recommitted as a convicted and technical parole violator to serve twelve months concurrently, when available.
Wagner did not receive credit for the six months he spent in the inpatient program of DRC.
At a hearing Parole Agent Clinton Canada (Agent Canada) testified that during the day none of the doors at DRC were locked, and, at night, the doors were locked from the outside but had a push bar that anyone could push to exit.
Agent Canada further testified that residents left DRC "all the time", the staff had no authority to use physical force against a resident, that there were no bars on the windows, but there were head counts. Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187 at 188.
Theodora Austin (Austin), an employee of DRC, testified that DRC did not keep the doors locked and residents were able to leave on passes when they signed out and were not escorted.
She further stated that DRC staff would not stop a resident from leaving.
Wagner testified that the front door was always open but was monitored by DRC staff, he could leave only if he had permission, the doors all had alarms, and his window was surrounded by a cage so he could not exit through the window.
The Board did not award Wagner credit based on the testimony of Agent Canada and Austin. Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187 at 189.
Wagner petitioned for review with this Court which affirmed.
This Court determined that McMillian did not control because Wagner was not in pre-release status and was actually on parole. Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187 at 191.