Com. v. Foster, T. ( 2017 )

J-A04008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERENCE FOSTER,
Appellant No. 1651 EDA 2016
Appeal from the Judgment of Sentence May 6, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000764-2013,
CP-45-CR-0001181-2014
BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 12, 2017
Appellant, Terence Foster, appeals from the judgment of sentence
entered on May 6, 2016, in the Monroe County Court of Common Pleas. We
affirm.
The trial court provided the relevant factual history of this case as
follows:
Within a thirteen month span, [Appellant] was twice
arrested and twice pled guilty to Driving Under the Influence
(DUI). First, in case No. 764 [Appellant] entered a counseled
guilty plea to DUI, a misdemeanor of the first degree. This was
[Appellant’s] third DUI within the ten-year look-back period.
Sentencing was scheduled and a presentence investigation
report (PSI) was ordered. Thereafter, prior to the imposition of
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*
Retired Senior Judge assigned to the Superior Court.
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sentence, [Appellant] was arrested in case No. 1181 and
charged with his fourth DUI. He later pled guilty.
At the sentencing hearing initially scheduled in Case no.
764, [Appellant] expressed his desire to be evaluated for
participation in the State Intermediate Punishment (SIP)
Program. The Commonwealth concurred and we ordered the
Department of Corrections (DOC) to conduct an evaluation to
determine [Appellant’s] eligibility for the program. [Appellant]
was deemed eligible for SIP. Accordingly, on September 15,
2014, we sentenced [Appellant] to the program in both cases.
In a letter dated May 2, 2016, the DOC notified this Court
that [Appellant] had been expelled from the SIP program. The
letter requested that this Court conduct [a] SIP revocation
hearing prior to [Appellant’s] maximum release date, to be
followed by a resentencing hearing. The main reason cited for
[Appellant’s] expulsion was his “Lack of Meaningful Participation
in the program,” after he was returned to SCI - Quehanna
following his most recent relapse. The DOC’s expulsion
determination was based on [Appellant’s] several relapses,
numerous behavioral infractions, an overall negative attitude
towards staff and the treatment program, and failure to comply
with program guidelines. Despite numerous interventions and
warnings from the treatment staff, [Appellant] refused to engage
and participate in his treatment.
Following his expulsion from the SIP program, a revocation
and resentencing hearing was held. At the conclusion of the
hearing, we removed [Appellant] from the program and, in each
case, resentenced him to 16 to 48 months in a state correctional
institution (SCI), plus one year of probation. The sentences were
run consecutively for an aggregate period of incarceration of 32
to 96 months, followed by two years of probation. We gave
[Appellant] a time credit of 456 days which, essentially,
consisted of the number of days [Appellant] spent in prison
before being entered into the SIP program, plus the number of
days he spent in a SCI for the SIP evaluation and the first phase
of the program.
[Appellant] did not contest, or at least did not seriously
contest, the reasons for his expulsion. He did ask for a time
credit. However, he did not present evidence of the nature or
types of the non-SCI facilities in which he was placed during the
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SIP program, the length of time spent in each facility, the level
of restriction at each facility, the number of days, if any, he
spent in the community, his progress or lack of progress in the
program, or other matters that would be relevant to a credit
determination.1
1
As discussed later in this opinion, [Appellant] did
not request a transcript of the revocation and
resentencing hearing. Thus, neither this Court nor
the Superior Court has the benefit of reviewing the
specifics of the hearing. The descriptions contained
in this opinion are to the best of our recollection.
[Appellant] did not ask us to reconsider our determination.
Instead, on May 27, 2016, he filed this appeal seeking additional
time credit.2
2
After resentencing and before this counseled appeal
was filed, [Appellant] submitted a pro se Petition for
Credit for Imprisonment while in Custody requesting
an additional credit of three-hundred twenty-two
(322) days which he claimed to have spent in a
Gaudenzia Rehabilitation Facility and a Community
Corrections Center. However, this filing is a nullity.
See Commonwealth v. Cooper, 27 A.3d 994 (Pa.
2011); Commonwealth v. Jette, 23 A.3d 1032 (Pa.
2011); Commonwealth v. Ali, 10 A.3d 282 (Pa.
2010); Commonwealth v. Pursell, 724 A.2d 293 (Pa.
1999); Commonwealth v. Ellis, 626 A.2d 1137 (Pa.
1993); Commonwealth v. Glacken, 32 A.3d 750 (Pa.
Super. 2011); Commonwealth v. Nischan, 928 A.2d
349 (Pa. Super. 2007). Under these cases, it is well-
settled that a motion filed pro se by a defendant who
is represented by an attorney of record is generally
considered a nullity. This is especially true when, as
here, the attorney files a separate submission (the
instant appeal) that is designed to effectuate the
defendant’s interests and raise the issue the
defendant wants raised, the defendant will not be
prejudiced by dismissal of the improper pro se
submission, issues have not been waived, and the
pro se filing is defective. In any event, as noted,
[Appellant] in this case did not present evidence that
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would support his motion and request for additional
time credit.
Trial Court Opinion, 7/15/16, at 1-3.
On appeal, Appellant raises the following issues for this Court’s
consideration:
Was [Appellant] in custody while serving time in a Community
Corrections Center?
Was the denial of time credit discretionary by the sentencing
Judge?
Appellant’s Brief at 4.
A challenge to a trial court’s failure to award credit for time already
served implicates the legality of the sentence imposed. Commonwealth v.
Pettus, 860 A.2d 162, 164 (Pa. Super. 2004). “A claim that the trial court
erroneously imposed an illegal sentence is a question of law and, as such,
our scope of review is plenary and our standard of review is de novo.”
Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013).
After review, we conclude that there was no error in the trial court’s
denial of credit for time spent in a Community Corrections Center while on
State Intermediate Punishment (“SIP”). A “period of incarceration is
mandatory pursuant to the SIP program; however, SIP is a voluntary
program that a defendant may agree to in lieu of a straight sentence of
incarceration.” Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.
Super. 2010) (citing 61 Pa.C.S. § 4104(a)(1)). “A plain reading of the
statute reveals that [a]ppellant’s SIP sentence could only include time spent
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in the actual program plus the time spent during the evaluation process at
an approved state correctional institution.” Id. (citing 61 Pa.C.S. §
4105(b)(1)-(4)). “In exchange for admittance into SIP, the defendant
surrenders his statutory right to credit for time served while housed in
a county correctional institution or non-Pennsylvania state correctional
facility.” Id. at 565 (emphasis added).1
As noted, the time for which Appellant seeks credit was spent at a
Community Corrections Center while on SIP; it was not spent in a state
correctional institution. Accordingly, Appellant was not entitled to credit for
time served. Therefore, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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1
In light of this Court’s holding in Kuykendall, we discern nothing
discretionary in the trial court’s ability to award credit for time served while
on SIP. Accordingly, we do not address the discretionary aspects of
Appellant’s sentence. Assuming for the sake of argument that we were to
address the discretionary aspects of Appellant’s sentence, we would
conclude that the challenge was waived due to Appellant’s failure to obtain
transcripts of the proceedings in the trial court. See Commonwealth v.
Preston, 904 A.2d 1, 7-8 (Pa. Super. 2006) (stating that it is not the
responsibility of this Court to obtain the necessary transcripts and that
failure to provide an adequate record may result in waiver).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2017
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