Commonwealth v. Melius

J-S53008-14
2014 PA Super 206COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARRIN JAMES MELIUS, :
:
Appellant : No. 1624 WDA 2013
Appeal from the Judgment of Sentence August 19, 2013,
Court of Common Pleas, Cambria County,
Criminal Division at No. CP-11-CR-0000321-2011
BEFORE: DONOHUE, OLSON and PLATT*, JJ.
OPINION BY DONOHUE, J.: FILED SEPTEMBER 19, 2014
Appellant, Darrin James Melius
2013 judgment of sentence entered by the Court of Common Pleas of
Cambria County following the revocation of his furlough for drug treatment.
Because Melius raises a challenge to his sentence on procedural
grounds, a recitation of the facts underlying his criminal convictions is
unnecessary. The relevant procedural history of this case is as follows. On
April 26, 2011, Melius pled guilty to one count of conspiracy to commit retail
theft.1 The trial court sentenced Melius to 12 months of probation. On
1
18 Pa.C.S.A. §§ 3929(a)(1), 903(a)(1).
*Retired Senior Judge assigned to the Superior Court.
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sentenced him to three to 23 months of incarceration. Melius served three
months of his sentence before his release.
In June 2012, while on parole for his three to 23 month sentence,
Melius was charged in Indiana County with retail theft. As a result, on July
24, 2012, the trial court found Melius to be in violation of his parole, but
stayed the matter pending the outcome of the charges in Indiana County.
On September 7 2012, Melius pled guilty to retail theft in Indiana County.
On November 21, 2012, the Court of Common Pleas of Indiana County
sentenced Melius to six months to two years less a day of imprisonment. On
January 3, 2013, after receiving his release from prison in Indiana County,
the trial court sentenced Melius to six months of incarceration at the
Cambria County Prison for violating his parole with no credit for time served.
While incarcerated at the Cambria County Prison, the Madison House
application for inpatient drug treatment. Melius requested permission from
the trial court to attend the drug rehabilitation program at the Madison
furlough from the Cambria County Prison to attend the drug rehabilitation
program with the condition that if Melius failed to complete the program,
he was to return to the Cambria County Prison. On April 26, 2013, Melius
received transportation from his sister to the Madison House. On June 19,
2013, Melius failed a drug screen for marijuana and the Madison House
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expelled him from its drug rehabilitation program. Melius did not return to
the Cambria County Prison and as a result, the trial court issued a bench
warrant for his arrest. On August 3, 2013, police apprehended Melius. On
August 19, 2013, the trial court resentenced Melius to 12 months of
incarceration on the basis that his furlough was a county intermediate
punishment sentence and that by violating the terms of his furlough, the
trial court was entitled to revoke his county intermediate punishment
sentence and resentence him.
On August 30, 2013, Melius filed a motion for post-sentence relief
nunc pro tunc arguing that his furlough was not a county intermediate
punishment sentence and that the trial court should have recommitted him
to serve the remaining balance of his six-month sentence. On September
12, 2013, the trial court held a hearing on the motion and following that
hearing, denied the motion. On September 27, 2013, Melius filed a notice of
appeal. On October 1, 2013, the trial court ordered Melius to file a concise
statement of matters complained of on appeal pursuant to Rule 1925(b) of
the Pennsylvania Rules of Appellate Procedure. On October 3, 2013, Melius
filed a timely Rule 1925(b) statement. On December 18, 2013, Melius filed
with this Court an application for leave to appeal nunc pro tunc because his
post-sentence motion to modify sentence did not toll the 30-day appeal
period pursuant to Rule 708(E) of the Pennsylvania Rules of Criminal
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Procedure, rendering his notice of appeal untimely. On March 20, 2014, this
Court granted Melius application for leave to appeal nunc pro tunc.
On appeal, Melius raises the following issues for our review:
I. The lower court erred in resentencing a parolee
who was furloughed and failed to successfully
complete inpatient drug treatment.
II. A parolee cannot be denied credit for periods
of incarceration previously served simply
because the parolee absconds from a furlough.
Both Melius and the Commonwealth agree that the first issue that he
raises on appeal concerns the legality of his sentence. See id. at 3;
de novo and our scope of review is plenary.
Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super. 2008)
(citation omitted). This issue also raises a question of statutory
interpretation, which is likewise a question of law, triggering the same scope
and standard of review. Commonwealth v. Van Aulen, 952 A.2d 1183,
1184 (Pa. Super. 2008).
The trial court identified section 9813 of the County Intermediate
Punishment Act as the statutory provision authorizing furloughs for drug
rehabilitation. Trial Court Opinion, 11/21/13, at 4. In its 1925(a) opinion,
the trial court held that where a defendant receives a furlough to attend
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Id.
at 4-5 (citation omitted). As a result, the trial court found that it would be
intermediate punishment sentence. Id. at 5-10. Finding the statutory
language addressing the revocation of a county intermediate punishment
sentence to be similar to the statutory language addressing the revocation of
probation, the trial court resentenced Melius as if it were revoking his
probation. Id.
Conversely, Melius argues that the trial court erred in treating his
furlough as a county intermediate punishment and the violation of his
furlough as the revocation of a county intermediate punishment sentence.
-14. Melius claims that prior to his furlough, the trial court
sentenced him as a parole violator and then granted his request for a
furlough to attend drug rehabilitation. Id. Melius asserts that the furlough
was not a new sentence of county intermediate punishment and as a result,
the trial court should not have treated his violation of furlough as the
revocation of a county intermediate punishment sentence, and thus the
revocation of probation. Id.
In regards to the legality of a sentence, our Court has held:
essentially a claim that the trial court did not have
jurisdiction to impose the sentence that it handed
down. ... A trial court ordinarily has jurisdiction to
impose any sentence which is within the range of
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punishments which the legislature has authorized for
Commonwealth v. Cappellini, 690 A.2d 1220, 1226 (Pa. Super. 1997)
(quoting Commonwealth v. Catanch, 581 A.2d 226, 228 (Pa. Super.
1990)). Section 9721(a) of the Sentencing Code provides trial courts with
seven alternative forms of criminal sentences:
(a) General rule.--In determining the sentence to
be imposed the court shall, except as provided in
subsection (a.1), consider and select one or more of
the following alternatives, and may impose them
consecutively or concurrently:
(1) An order of probation.
(2) A determination of guilt without further
penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment.
42 Pa.C.S.A. § 9721(a).
This Court has stated that the intent of the legislature in adopting
county intermediate punishment programs was to give trial courts another
respect to sentencing severity; to provide a more appropriate form of
punishment/treatment for certain types of nonviolent offenders; to make the
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offender more accountable to the community; and to help reduce the county
Commonwealth v. Poncala, 915 A.2d 97, 101
(Pa. Super. 2006) (citation omitted). Our Court has held that the revocation
of a county intermediate punishment sentence is equivalent to the
revocation of probation:
An intermediate punishment sentence imposed
pursuant to 42 Pa.C.S. § 9763, Sentence of
Intermediate Punishment, may be revoked where
the specific conditions of the sentence have been
alternatives available to the court shall be the same
as the alternatives available at the time of initial
2 Pa.C.S. § 9773, Modification or
revocation of intermediate punishment
sentence, (b) Revocation. This rule of re-
sentencing is analogous to that set forth for re-
revocation of probation a sentencing court possesses
the same sentencing alternatives that it had at the
Commonwealth v. Byrd,
663 A.2d 229, 231 (Pa. Super. 1995), citing 42
Pa.C.S. § 9771, Modification or revocation of
order of probation, (b) Revocation. Moreover,
revocation of probation occurs, as does revocation of
an intermediate punishment sentence, where it has
been found the defendant has violated the terms of
his sentence.
Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super. 1998) (footnote
omitted; emphasis supplied).
Commonwealth v. Kalichak, 943 A.2d
285, 290 (Pa. Super. 2008) (citing Commonwealth v. Mitchell, 632 A.2d
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nly option for a court that
decides to revoke parole is to recommit the defendant to serve the already-
imposed, original sentence. At some point thereafter, the defendant may
Id. (internal citations and footnote omitted); see also
Commonwealth v. Galletta, 864 A.2d 532, 538 (Pa. Super. 2004) (finding
that in a violation of parole, the court is not free to impose a new sentence);
Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999) (holding
sentencing option available is
Furthermore, section 9813(a) of the County Intermediate Punishment
furlough, states in pertinent part as follows:
(a) Generally.--Notwithstanding any provision of
law, if any offender has been sentenced to undergo
imprisonment in a county jail for a term of less than
five years, the court, at the time of sentence or at
any time thereafter upon application made in
accordance with this section, may enter an order
making the offender eligible to leave the jail during
necessary and reasonable hours for the purpose of
working at his employment, conducting his own
business or other self-employed occupation,
including housekeeping and attending to the needs
of family, seeking employment, attending an
educational institution, securing medical treatment
or for other lawful purposes as the court shall
consider necessary and appropriate.
* * *
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(c) Revocation or modification of previously
entered order.--The county jail officials may detain
and recommit the offender or preclude the offender
from leaving the county jail if the offender violates
the conditions set by the jail officials or the court, or
if allowing the offender to leave the county jail poses
a risk to community safety or the orderly and safe
management of the jail. The jail officials shall notify
the court of such action. In addition, the order of
court may be revoked or modified at any time with
notice to the prisoner.
42 Pa.C.S.A. § 9813(a), (c). Our Court has recognized that the legislative
intent of the predecessor statute2
categorical authority to order the temporary furlough of county prisoners
See Commonwealth v.
Kehoe, 863 A.2d 1202, 1203, 1205 (Pa. Super. 2004) (en banc).
2
The predecessor statute to section 9813 states:
Whenever any person has been sentenced to
undergo imprisonment in a county jail or workhouse,
hereafter referred to as a jail, for a term of less than
five years the court, at the time of sentence or at
any time thereafter upon application made therefore,
may by order direct the sheriff, prison keeper, jail
keeper, warden or other administrative head of a jail
to permit the prisoner to leave the jail during
necessary and reasonable hours for the purpose of
working at his employment, conducting his own
business or other self-employed occupation,
including housekeeping and attending to the needs
of family, seeking employment, attendance at an
educational institution, securing medical treatment
or such other lawful purposes as the court shall
consider necessary and appropriate. The order of the
court may be rescinded or modified at any time with
or without notice to the prisoner.
61 P.S. § 2141 (repealed Nov. 24, 2008).
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Based on the foregoing statutory authority and case law, we conclude
that the trial court erred in determining that when
for drug rehabilitation, it imposed a sentence of county intermediate
punishment. As a result, we also conclude that the trial court erred by
punishment sentence, and consequently, the revocation of probation.
We first note that the six-month sentence imposed by the trial court
on January 3, 2013 was not a county intermediate punishment sentence.
This sentence was not a new sentence because it stemm
conviction for committing retail theft in Indiana County shortly following his
parole after serving three months of his three- to 23-month probation
violation sentence in Cambria County. Because this six-month sentence was
the result of th
resentence him. See Kalichak, 943 A.2d at 290. The only option available
to the trial court was to recommit him to serve the already-imposed original
sentence. See id. Thus, by sentencing Melius to six months of
incarceration for violating his parole, the trial court was recommitting him to
serve six months of the 20 months remaining from his original three- to 23-
month sentence.
that
six-month period was also not a county intermediate punishment. The trial
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treatment[,] he has effectively been given a sentence of intermediate
an incorrect interpretation of section 9813(a). See Trial Court Opinion,
11/21/13, at 4. In regards to statutory interpretation, our Court has long
recognized the following:
Our interpretation is guided by the polestar principles
set forth in the Statutory Construction Act, 1
Pa.C.S.A. § 1501 et seq.[,] which has as its
interpretation and construction of statutes is to
ascertain and effectuate the intention of the General
unambiguous, they will be given effect consistent
nly
in instances where the words of a statute are not
explicit, or they are ambiguous, is there need to
resort to consideration of the factors in aid of
construction enumerated in 1 Pa.C.S.A. § 1921(c).
Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011) (internal citations
enactment, but it is in no sense conclusive, particularly when there is no
Commonwealth
v. Reefer, 816 A.2d 1136, 1143 n.10 (Pa. Super. 2003) (citation omitted).
The fact that section 9813 appears in the chapter addressing County
Intermediate Punishment is immaterial. No language in section 9813
suggests that the grant of a furlough from time currently being served by a
defendant after a trial court has recommitted that defendant for violating his
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or her parole constitutes a county intermediate punishment sentence. See
generally 42 Pa.C.S.A. § 9813. Likewise, no language in section 9813
suggests that a trial court may treat the violation of a condition of that
furlough as a violation of probation permitting the imposition of a new
sentence. See id. To the contrary, section 9813(a) provides that upon
proper application, a trial court may permit a prisoner serving a sentence in
a county jail a release from jail for any purposes the trial court considers
necessary and appropriate. 42 Pa.C.S.A. § 9813(a). Additionally, section
9813(c) states that if a prisoner violates a condition of the furlough, the trial
court may recommit the prisoner to the county jail and revoke or modify the
furlough order. 42 Pa.C.S.A. § 9813(c).
violation as the revocation of a county intermediate punishment sentence,
and thus the revocation of probation. Melius was serving a six-month
sentence for violating his parole when the trial court granted Melius a
furlough to attend drug rehabilitation. Melius violated the terms of his
furlough by not returning to the Cambria County Prison upon his expulsion
from the Madison House. Per section 9813(c), the appropriate remedy for
violating a condition of a furlough is to recommit the offender to the county
jail. See 42 Pa.C.S.A. § 9813(c). Therefore, the trial court should have
recommitted Melius to serve the remaining portion of his six-month parole
violation sentence. See id.
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Based on the foregoing, we conclude that the 12-month sentence that
the trial court imposed on Melius on August 19, 2013 for violating his
furlough was an illegal sentence. The six-month sentence that the trial court
imposed on January 3, 2013 was not a new sentence; rather, it was the
result of the trial court recommitting Melius to serve a portion of his original
three- to 23-month sentence. Because Melius was serving a county jail
sentence, the trial court was permitted to grant him a furlough to attend
however, the trial court did not impose a county intermediate punishment
violation as the revocation of a county intermediate punishment sentence,
and consequently, the revocation of probation. The appropriate recourse
under these circumstances was for the trial court to revoke the furlough and
to recommit Melius to serve the remaining time on his sentence.
Because we find that the trial court imposed an illegal sentence,
s
August 19, 2013.
Judgment of sentence vacated. Jurisdiction relinquished.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2014
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