Com. v. Hagerty, C. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL A. HAGERTY :
:
Appellant : No. 3455 EDA 2017
Appeal from the Judgment of Sentence September 5, 2017
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000004-2015,
CP-45-CR-0001276-2015, CP-45-CR-0001626-2015,
CP-45-CR-0002508-2014
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 21, 2018
Appellant Carl A. Hagerty appeals from the judgment of sentence of
forty-two to eighty-four months’ incarceration imposed following his
revocation from the state intermediate punishment (“SIP”) program.
Appellant first claims that this Court lacks jurisdiction over the appeal and
must remand the matter for resentencing; he further argues that the court
erred in denying his claim for additional time credit. We affirm.
On August 24, 2015, Appellant entered a negotiated guilty plea for
numerous charges on the above-captioned docket numbers.1 On January 29,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. § 3929(a)(1); 18 Pa.C.S. § 3921(a), 75 Pa.C.S. § 3802(d)(1)(i);
75 Pa.C.S. § 3802(d)(1); and 18 Pa.C.S. § 3925(a).
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2016, the trial court sentenced Appellant to twenty-four months of SIP, with
608 days of credit for time served.
On August 16, 2017, the court was notified that Appellant was expelled
from SIP due to “his lack of meaningful participation in the program.” N.T.,
9/5/17, at 12. Specifically, Appellant continued to use illegal substances,
resulting in several positive drug screens. Id. at 11. As a result, on
September 5, 2017, the trial court revoked Appellant’s SIP sentence and
resentenced him to an aggregate sentence of forty-two to eighty-four months’
incarceration. Id. At that time, he was awarded time credit for 608 days spent
in prison, as well as time spent at an inpatient rehabilitation facility. Id. at 9,
11. At the conclusion of the hearing, the court gave Appellant his appellate
rights, stating, “[a]nd if you don’t file that post-sentence motion, then you
have 30 days from today’s date to file any appeal to the Superior Court. Do
you understand that, sir?” Id. at 20.
On September 15, 2017, Appellant filed a motion for reconsideration
seeking additional time credit, which the trial court denied after a hearing on
October 23, 2017. N.T., 10/23/17, at 26. At the conclusion of the hearing on
Appellant’s motion, the court advised Appellant that he had thirty days to file
an appeal, and issued an order reflecting the same. Id. at 29; Trial Ct. Order,
10/23/17, at 1. Appellant filed a notice of appeal on October 30, 2017, and
subsequently complied with the trial court’s 1925(b) order.
Appellant raises the following issues on appeal:
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1. Whether this Court should vacate the sentence and remand for
resentencing because this Court does not have jurisdiction to
address an appeal filed more than thirty (30) days after
resentencing on expulsion from SIP, and where a [s]entencing
[c]ourt incorrectly informed Appellant during a colloquy that a
[p]ost-[s]entence motion would toll the appeal period[]
2. Whether the [s]entencing [c]ourt committed an error of law
when it failed to award time credit for time spent in a court-
ordered halfway house through the SIP [p]rogram, and where
[Appellant] presented un-contradicted evidence about the
circumstances of his tenure in that halfway house, which were
substantially identical to confinement in a prison[]
Appellant’s Brief at 5.
As a prefatory matter, we must address the timeliness of this appeal.
See Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en
banc). An appeal from a sentence following the revocation of intermediate
punishment must be filed within 30 days of the imposition of the new
sentence. Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super.
2016) (citing Pa.R.A.P. 903(a)). In contrast to other sentencing situations,
the filing of a post-sentence motion does not extend the time to appeal a
sentence imposed after the revocation of intermediate punishment. Id.Here, the trial court revoked Appellant’s SIP sentence and resentenced
Appellant on September 5, 2017. He filed a motion for reconsideration on
September 15, 2017, which the court denied on October 23, 2017. Appellant
filed a notice of appeal on October 24, 2017, which was within thirty days of
the order denying his motion for reconsideration, but more than thirty days
from the court’s order imposing Appellant’s sentence. Thus, the instant appeal
is facially untimely.
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While both Appellant and the Commonwealth acknowledge that the
appeal is untimely, they also agree that the late filing was a result of a
breakdown in the operations of the trial court.2 Appellant’s Brief at 11;
Commonwealth’s Brief at 6. Based on our review of the record, we agree. At
the resentencing hearing, the trial court did not properly instruct Appellant on
the appeal deadline. See N.T., 9/5/17 at 20; see also N.T., 10/23/17, at 29.
Additionally, in the order denying Appellant’s motion for reconsideration, the
court indicated that pursuant to Criminal Rule 720, Appellant had “the right to
appeal to the Superior Court of Pennsylvania within thirty (30) days of the
date of this order.” Trial Ct. Order, 10/24/17, at 1.
Therefore, because Appellant’s error resulted from the trial court’s
misstatement of the appeal period, it operated as a “breakdown in the court’s
operation.” Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super.
2001) (holding that when appellant was led to believe that he had thirty days
to appeal from the denial of a reconsideration motion following revocation of
probation, our court declined to quash the appeal, recognizing that the
problem arose as a result of the trial court’s misstatement of the appeal
period, which operated as a breakdown in the court’s operation). Thus, we
decline to quash the appeal and proceed to address the merits.
____________________________________________
2 Appellant further contends that because the appeal is untimely, we lack
jurisdiction over the matter and are required to remand it for resentencing.
However, this conclusion is in direct conflict with our case law and is without
merit.
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In his remaining issue, Appellant contends that he is entitled to 179 days
of additional time credit, arguing that he was “in custody” while he was at
Scranton Community Corrections Center (CCC). Appellant’s Brief at 12. In
support, Appellant claims that he was “physically restrained from coming or
going from [CCC] without permission to do some [sic] from an administrator
and a security officer” and “any time he was permitted to leave the facility
was circumscribed and monitored as to time and activity.” Id. at 13. He also
states that he was subjected to “searches, drug testing, and mandatory
participation in drug treatment programming.” Id. at 14.
A claim based upon a trial court’s failure to give full credit for time
served implicates the legality of sentence. Commonwealth v. Dixon, 161
A.3d 949, 951 (Pa. Super. 2017). “Issues relating to the legality of a sentence
are questions of law.” Commonwealth v. Furness, 153 A.3d 397, 405 (Pa.
Super. 2016) (citation omitted). Thus, our standard of review is de novo, and
our scope of review is plenary. Id.The Sentencing Code provides, in pertinent part, that a defendant is
entitled to credit “for all time spent in custody as a result of the criminal charge
for which a prison sentence is imposed.” 42 Pa.C.S. § 9760(1). With regard
to “custody,” this Court has explained:
The easiest application of 42 Pa.C.S. § 9760(1) is when an
individual is held in prison pending trial, or pending appeal,
and faces a sentence of incarceration: in such a case, credit
clearly would be awarded. However, the statute provides
little explicit guidance in resolving the issue before us now,
where the defendant spent time somewhere other than in
prison. This difficulty results in part from the fact that
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neither Section 9760, nor any other provision of the
Sentencing Code, defines the phrase “time spent in
custody.” The difficulty is also a function of the fact that
there are many forms of sentence, and many forms of pre-
sentencing release, which involve restrictions far short of
incarceration in a prison.
***
The plain and ordinary meaning of imprisonment is
confinement in a correctional or similar rehabilitative
institution[.] Courts have interpreted the word ‘custody,’ as
used in Section 9760, to mean time spent in an institutional
setting such as, at a minimum, an inpatient alcohol
treatment facility.
Commonwealth v. Fowler, 930 A.2d 586, 596-97 (Pa. Super. 2007)
(internal citations, brackets, and quotation marks omitted, and last alteration
supplied).
The Fowler Court also noted that “the Legislature intended
imprisonment and intermediate punishment to be mutually exclusive and to
be treated differently.” Id. at 596. Further, “[g]enerally, it is within the trial
court’s discretion whether to credit time spent in an institutionalized
rehabilitation and treatment program as time served ‘in custody.’” Id.In considering other forms of custody, this Court recently summarized
our relevant case law, stating that generally,
a defendant is entitled to credit for time he or she served in a
court-ordered inpatient rehabilitation program but not for time
spent in voluntary inpatient alcohol treatment. See
Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010).
Moreover, in Commonwealth v. Tout–Puissant, 823 A.2d 186(Pa. Super. 2003), a panel of this Court determined that the
defendant was entitled to two weeks’ credit against his
intermediate punishment sentence for time served in an “Outmate
Program,” in which the defendant completed community service
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projects while under 24–hour supervision. Therein, the appellant
included in his reproduced record a copy of a document detailing
the numerous requirements of the Outmate Program, and the
Commonwealth did not dispute the terms of the Program. Id. at
190
In contrast, when a defendant voluntarily admits himself into an
inpatient rehabilitation center, the decision whether to credit him
for time-served is within the discretion of the trial court. See
Toland, supra; see also Commonwealth v. Conahan, 527 Pa.
199, 589 A.2d 1107 (1991) (finding sentencing court did not
abuse its discretion in giving defendant credit for time-served in
an inpatient, institutional rehabilitation center). Also, in
Commonwealth v. Maxwell, 932 A.2d 941 (Pa. Super. 2007),
this Court precluded credit for electronic monitoring imposed as
part of an intermediate punishment sentence.
Commonwealth v. Lee, ___ A.3d ___, 2018 PA Super 66, 2018 WL 1416904(Pa. Super. filed Mar. 22, 2018).
The facts in Lee are nearly identical to Appellant’s case. Like Appellant,
Lee was expelled from SIP and subsequently resentenced to a term of
imprisonment. Id. at *1. In both cases, the trial court declined to give
defendant credit for time he served in phase three of the program, finding
that CCC was not sufficiently custodial, and therefore, did not warrant
additional time credit. Id. at *5-*6. Ultimately, the Lee Court held that the
defendant was not entitled to credit for time served in CCC. Id.
In affirming the trial court’s decision, the Lee Court stated:
While all of [the a]ppellant’s time spent in [CCC] was court-
ordered, i.e., part of his SIP sentence, upon our review of the
foregoing decisional authority, the limited certified record, and the
trial court’s opinion, we find the trial court did not commit an error
of law in determining that [the a]ppellant is not entitled to credit
for the days he spent in [CCC]. Although he testified he was
required to report to the facility by nine o’clock each evening, he
also admitted he was permitted to “gladly walk out,”
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unaccompanied, to go to work each morning. See N.T., 6/16/17,
at 16–17. Accordingly, we find [the appellant]’s time spent at that
facility to be more akin to the time served on electronic monitoring
in Maxwell, supra, as opposed to the twenty-four hour supervised
“Outmate Program” analyzed in Tout–Puiss[an]t, supra.
Therefore, the trial court correctly determined [the appellant] is
not entitled to credit for the days he spent at [CCC].
Id. at *6.
We find the reasoning in Lee to be directly on point in the instant case.
Here, at the hearing on Appellant’s motion for reconsideration, the trial court
heard argument from the Commonwealth and defense counsel, after which
Appellant testified concerning the details of his time at CCC. N.T., 10/25/17,
at 9-24.
Specifically, Appellant explained that although he was required to be at
the facility between 9 p.m. and 7 a.m. each day, he was otherwise permitted
to “go to work, or go to the store, or we could get a pass to go to the bank to
get our check.” Id. at 10. He also testified that although the facility had a
curfew, exceptions could be made for those who had “overnight jobs.” Id. at
24. He further stated that he was subject to random drug screens and was
searched each time he entered the facility, although he was not always subject
to searches when he left. Id.
In denying Appellant’s motion for reconsideration, the trial court stated:
[T]he [c]ourt believes that the [c]ourt has discretion whether to
award this time or not. And under these circumstances, and in
light of the fact that he was in a Level 3 community house, [CCC],
the [c]ourt is not convinced that that’s the equivalent of
incarceration. Although, there have been some cases where I’ve
awarded credits for that type of incarceration. But in light of the
fact that [Appellant] was expelled from the program for continued
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drug use during the time when he was in the Level 3 housing, I
don’t think it’s appropriate at this point to award him that
discretionary time.
Id. at 27.
In its opinion, the trial court further explained that
[a]t the time of the hearing on [Appellant’s] [m]otion to
[r]econsider [s]entence, we set forth our reasons for not giving
the requested time credit to [Appellant]. Specifically, we noted
that there were no bars on the windows and [Appellant] left each
day to work. In adjusting to the Level 3 and transitioning to be
furloughed home, [Appellant] began using drugs again.
Initially, we considered all of the facts and circumstances
surrounding [Appellant’s] participation in the Level 3 facility and
we determined that [Appellant] should not receive time credit. We
did not recognize that facility to be equivalent to incarceration and
we noted that [Appellant] tested positive for drugs on several
occasions.
Trial Ct. Op., 12/1/17, at 4.
Upon review, we conclude that there was no error in the trial court’s
denial of credit for time served at CCC while in the SIP program. In light of
this Court’s recent decision in Lee, and based upon the instant record, we
agree with the trial court that Appellant’s time at CCC was not sufficiently
custodial as to require credit for time served under 42 Pa.C.S. § 9760(1).
Therefore, the trial court acted within its discretion in denying Appellant’s
request for additional time credit. See Lee, 2018 WL 1416904, at *5.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/18
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