Com. v. Darwish, A. ( 2017 )

J-A22031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 3647 EDA 2016
AHMED NABIL DARWISH
Appeal from the Judgment of Sentence September 1, 2016
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002402-2015
BEFORE: BOWES, J., LAZARUS, J., and PLATT*, J.
DISSENTING MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 31, 2017
I respectfully dissent.
Whether a defendant is entitled to credit for time spent in an inpatient
drug or alcohol rehabilitation facility turns on the question of voluntariness.
Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010). There is no
automatic entitlement to credit for time a defendant voluntarily spends in
inpatient treatment. Id. Rather, if a defendant chooses to voluntarily commit
himself to such treatment, the sentencing court in its discretion may grant
credit for this time. Id.In the instant case, I believe that Darwish voluntarily committed himself
to the Salvation Army Adult Rehabilitation Program (“the Program”). Despite
the trial court’s conclusion to the contrary, the record supports the fact that
Darwish filed a petition to modify bail, specifically seeking release into the
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* Retired Senior Judge assigned to the Superior Court.
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Program as a bail modification. See Petition to Modify Bail for Release into
Rehabilitation Center, 1/19/16; see also N.T. Reconsideration of Sentence
Hearing, 9/19/16, at 9 (“[i]t was the defendant’s petition to modify bail and
release him to a rehabilitation facility with the Commonwealth’s concurrence.
He’s the one who said he wanted treatment.”). In lieu of posting bail, Darwish
had been incarcerated on the instant charges on October 23, 2015; inpatient
treatment had not been an original condition of Darwish’s bail. However, on
January 19, 2016, Darwish filed the aforementioned petition, informing the
court that he had been accepted into the 6½ month Program, with an
admission date of January 21, 2016. The Program’s admission letter indicates
that Darwish had filed a beneficiary application for admission, supplemented
by a medical information form and interview. See Salvation Army Adult
Rehabilitation Intake Coordinator Letter, 1/14/16.
In addition, the trial court specifically conditioned the modification of
bail on Darwish’s successful completion of the Program. N.T. Guilty Plea
Hearing, 1/20/16, at 12 (“All right. So if you don’t, if you walk away from it,
that’s a violation of your bail condition.”); id. (“You’re going to need to stay
there until you’re successfully discharged to fulfill that bail condition; do you
understand that?”). In fact, the Commonwealth would only agree to his
admission “with the condition that [Darwish] attend and complete the
[P]rogram.” Id.Darwish absconded from the Program after only three months, failed to
report his discharge to the court, failed to appear for sentencing, was wanted
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on a bench warrant, and continued to use illegal drugs and commit additional
crimes while a fugitive. Under such circumstances, I believe that the trial
court abused its discretion in granting Darwish credit for time served in the
Program where the trial court and Commonwealth clearly premised Darwish’s
bail modification on his successful completion of the Program. Cf.
Commonwealth v. Conahan, 589 A.2d 1107, 1109 (Pa. 1991) (court did
not abuse discretion in crediting defendant for time spent in inpatient
treatment facility following DUI arrest where: defendant’s commitment
exceeded statutory applicable minimum sentence;1 defendant’s right of
movement restricted in program and where had he not completed program,
credit would not have been due; and defendant had taken responsibility for
actions and maintained sobriety). Darwish clearly failed to benefit from the
truncated time he voluntarily spent in the Program; awarding Darwish credit
for that time is inappropriate. Accordingly, I would reverse and remand for
resentencing.
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1 Here, the trial court initially sentenced Darwish to 9-24 month’s
imprisonment, with 108 days of credit. That sentence was subsequently
modified to reflect an additional 99 days of credit – the time served in the
Program.
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