Com. v. Darwish, A.

J-A22031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
AHMED NABIL DARWISH,
Appellee No. 3647 EDA 2016
Appeal from the Judgment of Sentence September 1, 2016
in the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-CR-0002402-2015
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 31, 2017
The Commonwealth of Pennsylvania appeals from the judgment of
sentence imposed on Appellee, Ahmed Nabil Darwish, following his entry of a
guilty plea to one count of retail theft.1 We affirm.
We take the following relevant facts and procedural history from our
independent review of the certified record. On January 20, 2016, Appellee
entered an open guilty plea to retail theft, a charge that arose from his taking
of two containers of creatine supplements from a retail store in Mount Pocono,
Pennsylvania in July 2015. The trial court deferred sentencing pending
preparation of a pre-sentence investigation report (PSI). Upon petition by
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3929(a)(1).
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Appellee, and with the express concurrence of the Commonwealth, the court
modified his bail “to $10,000.00 unsecured with the additional condition that
[Appellee] be released directly to the Salvation Army Adult Rehabilitation
Facility located in Harrisburg, Pennsylvania [(SAR program)] effective January
21, 2016.” (Order Accepting Guilty Plea, 1/22/16; see also Commonwealth’s
Concurrence, 1/19/16). Appellee entered the six-month, in-patient drug
rehabilitation program on the day after he entered the plea, but was
discharged unsuccessfully on May 2, 2016, after a curfew violation and
positive urine screen. (See PSI, 2/09/16, at 2, 4c, 5). He absconded, failed
to appear at sentencing, and was later arrested on new charges.
On September 1, 2016, the trial court sentenced Appellee in the
aggravated range to a term of not less than nine nor more than twenty-four
months’ incarceration, with credit for 108 days’ time served.2 On September
12, 2016, Appellee filed a motion for reconsideration of sentence. On
September 20, 2016, following a hearing, the court entered an order denying
Appellee’s motion for reconsideration, but taking under advisement his
request for additional credit for his time in the SAR program. On October 28,
2016, the court entered an order amending Appellee’s sentence to reflect a
time credit of 207 days, based on its determination that he should receive
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2 The court ran the sentence consecutive to another sentence on a separate
retail theft conviction, for an aggregate term of not less than eighteen nor
more than forty-eight months’ incarceration.
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credit for time spent in the SAR program. (See Order, 10/28/16). This timely
appeal followed.3
The Commonwealth raises one issue for our review:
Whether the [trial] court abused its discretion in granting
[Appellee] time credit for unproven time spent in an in-patient
rehabilitation facility after he entered the program voluntarily,
absconded from treatment prior to completion, willfully failed
to appear for sentencing, and used illegal drugs and committed
additional violent crimes while wanted in spite of the
agreement that he would only receive credit for successful
completion?
(Commonwealth’s Brief, at 5).
Initially, we note that the Commonwealth challenges the discretionary
aspects of Appellee’s sentence. See Commonwealth v. Shull, 148 A.3d
820, 847 n.14 (Pa. Super. 2016). Because the Commonwealth has timely
appealed, preserved its issue in the trial court, included a Rule 2119(f)
statement in its brief, and raised substantial question, we will review its claim
on the merits, employing an abuse of discretion standard of review. See id.;
see also Pa.R.A.P. 2119(f); Commonwealth v. Knox, 165 A.3d 925, 929
(Pa. Super. 2017) (setting forth prerequisites for merits review of
discretionary aspects of sentence claim).
Sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will
not be disturbed on appeal absent a manifest abuse
of discretion. In this context, an abuse of discretion
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3The Commonwealth filed a timely, court-ordered concise statement of errors
complained of on appeal on November 29, 2016. The trial court entered an
opinion on January 10, 2017. See Pa.R.A.P. 1925.
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is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.
Commonwealth v. Toland, 995 A.2d 1242, 1248 (Pa. Super. 2010), appeal
denied, 29 A.3d 797 (Pa. 2011) (citations omitted).
In the instant case, the Commonwealth argues that the trial court
abused its discretion in granting Appellee credit for the time he voluntarily
spent in the SAR program. (See Commonwealth’s Brief, at 11-18). It
maintains that the award of credit was improper where: Appellee failed to
complete the program and absconded; the amount of time he spent at the
facility was unsubstantiated; and it violated the parties’ plea agreement. (See
id. at 16-18). We disagree.
“The Sentencing Code provides that a defendant shall receive credit for
all time spent in custody prior to trial[.]” Toland, supra at 1248. In
relevant part, section 9760 provides:
§ 9760. Credit for time served
After reviewing the information submitted under section 9737
(relating to report of outstanding charges and sentences) the
court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall
be given to the defendant for all time spent in custody as a result
of the criminal charge for which a prison sentence is imposed or
as a result of the conduct on which such a charge is based. Credit
shall include credit for time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an appeal.
42 Pa.C.S.A. § 9760(1).
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The principle underlying [Section 9760] is that a defendant should
be given credit for time spent in custody prior to sentencing for a
particular offense.
The easiest application of [42 Pa.C.S.A. §
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 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.
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.
Shull, supra at 847 (citations and some quotation marks omitted).
In Toland, supra, this Court examined how our case law distinguishes
whether credit for time served should be granted or denied for stays in
inpatient treatment facilities. The Court stated:
. . . [W]hether a defendant is entitled to credit for time spent
in an inpatient drug or alcohol rehabilitation facility turns on the
question of voluntariness. If a defendant is ordered into
inpatient treatment by the court, e.g., as an express
condition of pre-trial bail, then he is entitled to credit for
that time against his sentence. By contrast, if a defendant
chooses to voluntarily commit himself to inpatient rehabilitation,
then whether to approve credit for such commitment is a matter
within the sound discretion of the court.
Toland, supra at 1250–51 (citations omitted; emphasis added); see also
Commonwealth v. Cozzone, 593 A.2d 860, 867-68 (Pa. Super. 1991)
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(concluding that defendant who entered rehabilitation facility as condition of
bail in order to avoid pre-trial imprisonment did not voluntarily admit himself
and was entitled to time credit).
Toland involved a third-time DUI offender facing a one-year mandatory
sentence who requested 354 days’ credit for pretrial detention served at two
costly inpatient rehabilitation facilities. See Toland, supra at 1243, 1247-
48, 1252-53. Despite language in the magisterial district judge’s bail
information directing the defendant to enter an inpatient treatment program,
the trial court nonetheless determined that he voluntarily entered, where he
did not enter treatment until one full month after his release on bail, and he
specifically explained that he checked in “voluntarily” to “save [his] life.” Id.
at 1251; see id. at 1247. The trial court denied credit for time served, and
this Court affirmed, stating:
. . . [W]e cannot ignore the trial court’s cogent argument
that allowing appellant credit in this case would invite defendants
who can afford extended stays in inpatient rehabilitation facilities
to “game the system.” Most defendants cannot afford to pay in
excess of $100,000 and continue their cases indefinitely while
they “rehab” at addiction facilities in Oregon and Arizona. The
trial court states that “If this Court were to allow credit for time
spent in rehab in this case, the Court could not look similarly
situated defendants in the eye.” We also observe that it is a
common thread throughout the trial court’s opinion that appellant
was purposely trying to avoid a mandatory sentence of
incarceration by taking advantage of a perceived “loophole” in the
law, i.e., by delaying his case and remaining in inpatient treatment
until the mandatory minimum 12-month sentence had nearly
expired. Such conduct should not be countenanced.
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Certainly the trial court is in a better position to observe
appellant’s demeanor and decide whether his efforts were sincere
and not simply a ploy to avoid the mandatory sentencing penalties
for repeat DUI offenders. . . .
Id. at 1253 (record citations omitted).
Here, in contrast to Toland, there is no indication in the record that
Appellee admitted himself into an exclusive, costly rehabilitation facility to
take advantage of a loophole in the law, or that there was any delay between
his release on bail and entry into the facility. Both parties and the trial court
were aware of Appellee’s need for treatment for his long-term struggle with
drug addiction, and the record indicates that the SAR program was modest
and community based, designed to “meet the basics of a person’s needs[,]”
not a type of “scenic [] getaway” described in Toland. Toland, supra at
1252; (Petition to Modify Bail, 1/19/16, at Exhibit A, SAR Intake Letter); (See
also N.T. Guilty Plea, 1/20/16, at 10-11, 13; PSI at 4c, 6).
Further, the trial judge, who was in the best position to assess the
circumstances, specifically found that Appellee did not voluntarily enter the
SAR program. (See Trial Court Opinion, 1/10/17, at unnumbered pages 3-
4). Instead, Appellee entered the program as an express condition of his bail
pending sentencing. (See Order Accepting Guilty Plea, 1/22/16). Thus, we
conclude that Appellee was ordered into inpatient treatment by the trial court,
and is entitled to credit for that time against his sentence. See Toland, supra
at 1250–51; Cozzone, supra at 867-68.
Furthermore, even if we deemed Appellee’s commitment to the SAR
program voluntary, we discern no abuse of discretion in the trial court’s
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approval of time credit. See Toland, supra at 1251. Although Appellee failed
to complete the treatment program and absconded, it is clear from the record
that the court fully considered these factors in sentencing him to an
aggravated-range sentence, which it ran consecutively to a second retail theft
conviction, for a lengthy aggregate sentence. (See N.T. Sentencing, 9/01/16,
at 13-15).
With respect to the Commonwealth’s assertion that the court speculated
regarding the amount of time Appellee actually spent in the SAR program, we
find this claim disingenuous, where the record plainly reflects that he
participated in the program from January 21, 2016 until May 2, 2016. (See
Order Accepting Guilty Plea, 1/22/16; N.T. Guilty Plea, at 14; PSI at 2, 4c, 5;
see also Commonwealth’s Brief, at 16-17).
Finally, we acknowledge the Commonwealth’s argument that its consent
to Appellee’s participation in the SAR program was premised on the court’s
award of time credit for successful completion only, and that the “court’s
refusal to honor this agreement deprives the Commonwealth of the benefit of
the bargain in its plea agreement.” (Commonwealth’s Brief, at 18). However,
our review of the guilty plea proceedings demonstrates that the issue of time
credit was not raised at that time. (See N.T. Guilty Plea, at 9-14; see also
Order Accepting Guilty Plea, 1/22/16; Commonwealth’s Concurrence,
1/19/16; Guilty Plea and Colloquy, 1/22/16). Therefore, the record belies the
Commonwealth’s claim.
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In sum, we conclude that the record supports the trial court’s decision
to credit Appellee for the time he spent in the SAR program, and we discern
no abuse of discretion in its disposition of this issue. Accordingly, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judge Bowes joins the Memorandum.
Judge Lazarus files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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