J-S03034-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
                  v.                     :
                                         :
JACOB M. SPINNEY,                        :
                                         :
                  Appellant              :       No. 1048 WDA 2016

           Appeal from the Judgment of Sentence May 13, 2016
              in the Court of Common Pleas of Warren County,
           Criminal Division, at No(s): CP-62-CR-0000005-2016,
           CP-62-CR-0000012-2015, CP-62-CR-0000533-2015,
            CP-62-CR-0000534-2015

BEFORE:    OLSON, SOLANO, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED MARCH 01, 2017

     Jacob M. Spinney (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to simple assault. We affirm.

     Because of the issue raised herein, a full recitation of the factual and

procedural history is not necessary.   Pertinent to this appeal, in January

2015, Appellant was charged at docket number CP-62-CR-0000012-2015

with burglary, conspiracy, and simple assault.    On March 31, 2016, after

spending time in an inpatient drug rehabilitation facility, Appellant pled

guilty to simple assault, and the Commonwealth nolle prossed the remaining

charges.   On May 13, 2016, Appellant was sentenced to six to twelve

months’ incarceration, to run consecutive to sentences he received at other

docket numbers.    At sentencing, despite his request, the sentencing court



*Retired Senior Judge assigned to the Superior Court.
J-S03034-17


declined to give Appellant credit on his sentence for the time he spent in the

rehabilitation facility.

      On the day he was sentenced, Appellant filed a post-sentence motion,

requesting the trial court modify his sentence, which the court denied on

June 17, 2016.       This appeal followed, wherein Appellant’s sole issue is

“[whether] the failure to provide credit for Appellant’s drug addiction

treatment at sentencing result[ed] in a sentence that was unreasonable,

manifestly excessive, and an abuse of discretion?”       Appellant’s Brief at 3

(suggested answer and unnecessary capitalization omitted).

      While a sentencing court’s failure to award credit time ordinarily

implicates the legality of a sentence, the determination of whether a

defendant is entitled to credit for time spent voluntarily 1 in a drug

rehabilitation facility is within the discretion of the sentencing court.   See

Commonwealth v. Toland, 995 A.2d 1242, 1250–51 (Pa. Super. 2010)

(“[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


1
  As set forth in more detail infra, Appellant concedes his time spent in the
drug rehabilitation facility was voluntary. See also Appellant’s Brief at 11
(“Appellant’s time spent in drug treatment rehabilitation was voluntary[.]”).

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such commitment is a matter within the sound discretion of the court.”)

(citation omitted).

         Challenges to the discretionary aspects      of sentencing do not
         entitle an appellant to review as of         right.   An appellant
         challenging the discretionary aspects of     his [or her] sentence
         must invoke this Court’s jurisdiction by     satisfying a four-part
         test:

           We conduct a four-part analysis to determine: (1) whether
           appellant has filed a timely notice of appeal, see Pa.R.A.P.
           902 and 903; (2) whether the issue was properly
           preserved at sentencing or in a motion to reconsider and
           modify sentence, see Pa.R.Crim.P. 720; (3) whether
           appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
           (4) whether there is a substantial question that the
           sentence appealed from is not appropriate under the
           Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

         Appellant filed timely a post-sentence motion and a notice of appeal,

and included a statement pursuant to Rule 2119(f) in his brief. On appeal,

Appellant alleges the reasons given by the sentencing court “for denying

credit     were   inappropriate   and   as    a   result   of   Appellant’s   unique

circumstances[,] Appellant spent more time in confinement (in locked

treatment facilities), th[a]n he would have otherwise.” Appellant’s Brief at

8.

         At the outset, we find Appellant has raised a substantial question for

our review.       Commonwealth v. Shull, 148 A.3d 820, 847 (Pa. Super.

2016) (discussing the merits of Shull’s claim that the trial court erred in



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failing to award him credit for time spent in a rehabilitation center). Here

Appellant argues that his

      time spent in drug rehabilitation was voluntary, but it was
      substantially incentivized by the circumstances to the point of
      almost making it involuntary. … [A]ppellant’s reasons for
      entering treatment were clearly to avoid spending additional
      time in jail.     Initially, treatment was not a condition of
      Appellant’s bail. However, Appellant realized his addiction had
      caused him to commit other crimes and he would be facing other
      theft related charges in the future. Appellant ran the risk, and
      rightly so, that when presented with these new charges he would
      not be released on unsecured bail. The District Attorney stated
      he would allow Appellant to finish his inpatient rehab before
      facing new charges. Appellant was therefore presented with the
      options of [(1)] staying in treatment and possibly given credit for
      time served or [(2)] facing new charges and going back to jail.
      This created a substantial incentive for Appellant to remain in
      treatment. The voluntary treatment was nearly involuntary at
      this point!

                                    ***

             Appellant argues that the facts present in this case do not
      warrant the [sentencing] court’s imposition of a sentence which
      denies him credit for time spent in drug rehabilitation. Appellant
      was in a nearly custodial situation and not all factors were
      adequately considered in crafting his sentence. Public policy
      justifies incentivizing awarding credit for those in Appellant’s
      situation, and the judge failed to award credit for time in
      treatment in this case. Failure to do so created a sentence
      which was unreasonable, manifestly excessive, and an abuse of
      discretion.

Appellant’s Brief at 11-13.

      The sentencing court offered the following response to Appellant’s

argument:

      In the instant case, there was no bail condition of inpatient
      treatment and Appellant was not subject to any condition that
      was custodial in nature.   When the inpatient rehabilitation

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      treatment is voluntary, then the grant of credit for time served is
      discretionary. … Although the treatment providers explained that
      Appellant made progress, the [sentencing c]ourt gave detailed
      reasons for not granting credit[.] Appellant engaged in criminal
      activity after going through treatment by assaulting a fellow
      inmate, which showed the ineffectualness of the treatment.
      Appellant claimed to accept the consequences of his actions in
      treatment but continued to perpetuate his lies to his own mother
      regarding his theft of her firearms. Appellant also “cheeked”
      medications to misuse or distribute the medication, which also
      showed the ineffectiveness of the treatment. Appellant had
      other misconducts during incarceration.        During Appellant’s
      incarceration, he attended zero out of nine self-help meetings.
      Appellant has a history of revocations due to re-offending and
      using.     Based on the totality of the circumstances, the
      [sentencing c]ourt found that granting credit for ineffectual
      inpatient treatment to be inappropriate.

Sentencing Court Opinion, 8/18/2016, at 3-4.

      A review of the sentencing transcript confirms that the sentencing

court did indeed consider Appellant’s request that he receive credit for time

spent in the drug rehabilitation center. However, for the reasons it set forth

in its 1925(a) opinion (as cited supra), and on the record at sentencing, the

sentencing court did not believe Appellant benefited from the time he

voluntarily spent in the rehabilitation facility, and therefore, awarding him

credit would be inappropriate. See N.T., 5/13/2016, at 18-27. Under these

facts, we discern no abuse of discretion in the sentencing court’s decision to

deny Appellant’s request.2


2
  In finding Appellant is entitled to no relief from this Court, we are not
persuaded by his argument that his voluntary decision to enter the
rehabilitation facility was rendered “almost” involuntary due to his particular
circumstances. Appellant makes no argument that he was ordered by the
trial court to enter inpatient rehab. To the contrary, it is clear from

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      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/1/2017




Appellant’s own brief that his desire to enter rehab was, in large part, due to
the fear of facing additional charges and jail time. The fact that entering an
inpatient rehabilitation facility was the more desirable option does not make
his decision involuntary.

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