J. S55013/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
LAWRENCE JUSTIN MORRISON,               :         No. 2030 WDA 2014
                                        :
                        Appellant       :


        Appeal from the Judgment of Sentence, November 13, 2014,
             in the Court of Common Pleas of Cambria County
            Criminal Division at Nos. CP-11-CR-0000225-2013,
            CP-11-CR-0000239-2013, CP-11-CR-0000241-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 23, 2015

      Lawrence Justin Morrison appeals from the judgment of sentence

entered on November 13, 2014, in the Court of Common Pleas of Cambria

County in the above-captioned matters. Finding no error below, we affirm.

      On November 29, 2012, appellant was arrested in connection with

eight burglaries over the span of several months involving multiple victims in

Cambria County. Upon his arrest, appellant was in possession of 5.51 grams

of heroin.

      Prior to his November 2012 arrest, appellant faced three unrelated

criminal charges in Somerset County, including one count of possession with

intent to deliver (“PWID”) heroin, one count of criminal trespass, and one

count of receiving stolen property.



* Retired Senior Judge assigned to the Superior Court.
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      Bail was set at $10,000 and on January 29, 2013, appellant was

remanded to Cambria County Prison. (Docket #4.) Appellant filed a petition

for bail reduction hearing.   On February 28, 2013, appellant’s petition for

bail reduction was denied.     Appellant was ordered to undergo drug and

alcohol evaluation. (Docket #5.) On April 2, 2013, appellant pled guilty to

the three Somerset County charges.1       On June 26, 2013, appellant was

transported from Cambria County Prison to Peniel Residential Drug and

Alcohol Treatment Center to attend an interview.         (Docket #12.)     On

July 16, 2013, appellant was voluntarily transferred from Cambria County

Prison to Peniel. The treatment order specifically stated that appellant “must

remain at Peniel until he successfully completes the program . . . If he

leaves the program, he will be considered a fugitive and escapee and

immediately be placed in the Cambria County Prison.” (Order, 7/15/13 at 1;

Docket #13.)

      On October 22, 2013, appellant pled guilty in the Cambria County

cases to one count of PWID (drug trafficking case docketed at CP-11-CR-

0000239-2013, hereinafter “Case No. 239-2013”), three counts of burglary,

two counts of criminal trespass, two counts of theft by unlawful taking, and

one count of criminal conspiracy. At the plea hearing, appellant requested a

continuance of his sentencing in all cases so that he could remain at Peniel



1
  The Somerset County cases were then consolidated with the Cambria
County cases.


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and continue his drug rehabilitation treatment. At that point, he had been at

Peniel for approximately three months. The trial court granted his request.

The following exchange between the trial court and appellant took place:

                 THE COURT: Okay. First a question. I took
           the plea in the previous cases, and obviously I took
           the plea in these cases. How did he get to Peniel
           without my order?

                  DEFENSE ATTORNEY: Your Honor, in the
           interim time period, he, obviously these offenses
           occurred unfortunately, and a bond hearing was set
           before another judge, and he was sent to Peniel as a
           condition of bond rather than the usual method,
           which was and which is basically, as I understand it,
           the requirement is the person, that my client enter a
           guilty plea, and then goes to Peniel in order to prove
           to the court or have the chance to prove to the Court
           that they, you know, to basically develop a record of
           treatment at Peniel in order to obtain that advantage
           of consideration for them at sentencing.         There
           somehow was a miscommunication where other
           judge sent him as a condition of bond.

           ....

                  DEFENSE COUNSEL: . . . he’s doing very well
           there, and . . . they do want to keep him there and
           hope that he remains there and completes their
           program, and that had been confirmed previously
           . . . at the time we started negotiating this plea.

           ....

                  THE COURT: . . . somehow you were lucky
           enough to get into Peniel, and I also have an
           obligation to society here, and if we can get you off
           that habit, then for the next presumably for the next
           40 to 50 years, we don’t have to worry about crimes
           like this. So, I’m at cross purposes here. I want you
           to be rehabilitated, but on the other hand, and in



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             addition, you’ve got roughly $50,000 worth of
             restitution that you’re going to be responsible for.

                   So I want these victims to be paid. At this
             juncture, I have two choices. I either sentence you
             to a sentence that I think is appropriate, which
             would be a long sentence or I give you a chance at
             Peniel and see what happens.

             ....

                   THE COURT: . . . I’ll grant your request for
             the continuance of both of these sentences. We’ll
             see what you get at Peniel, see how you did at
             Peniel, and then I’ll sentence you accordingly. I may
             give you credit for the time in Peniel or I may not. It
             depends on what happens. That ball is in your court.
             But I want you to know there’s no promises here.
             I’m going to let you go to Peniel, and we’ll see how
             you do, and then we’re going to revisit things for
             your resentencing. Do you understand that?

                    THE DEFENDANT: Yes, sir.

Guilty plea transcript, 10/22/13 at 13-15.

        On January 23, 2014, appellant was unsuccessfully discharged from

Peniel because he threatened to stab another resident in the neck with a

screwdriver. (Sentencing transcript, 2/7/14 at 5.)

        On February 7, 2014, the trial court sentenced appellant as to all cases

from Somerset and Cambria Counties.         Appellant received an overall state

sentence of 6 years to 12 years,2 with Recidivism Risk Reduction Incentive

(“RRRI”) Program3 eligibility, and credit for time served at Cambria County


2
    Appellant was sentenced to 3 to 6 years in Case No. 239-2013.
3
    42 Pa.C.S.A. § 5303.


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Prison, but not at Peniel.      Appellant was also ordered to pay $53,771 in

restitution to his victims.

        Appellant filed a pro se petition for post-conviction collateral relief

asserting ineffective assistance of counsel and arguing that his sentence was

unconstitutional and illegal, pursuant to Alleyne v. United States,              U.S.

   , 133 S.Ct. 2151 (2013) (holding that facts that increase mandatory

minimum sentences must be submitted to the jury and must be found

beyond a reasonable doubt); and Commonwealth v. Cardwell, 105 A.3d

748, 751 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015)

(applying Alleyne and recognizing that the mandatory minimum sentences

associated with the weight of narcotics possessed by a drug dealer pursuant

to 18 Pa.C.S.A. § 7508 are unconstitutional). The trial court appointed PCRA

counsel, and a hearing was held on October 13, 2014, relative to the

amended PCRA petition. A re-sentencing hearing was held on November 12,

2014.     The Commonwealth conceded that appellant received an illegal

3-year minimum sentence in Case No. 239-2013.                  That sentence was

vacated    and   the   trial   court   considered   the   parties’   arguments    for

re-sentencing.

        Appellant requested a mitigated sentence and for all counts to run

concurrently due to the following factors: the court’s comment at the PCRA

hearing that “it had hope for” appellant; drug addiction is a terrible disease;

appellant is a young man and has a child; appellant completed the victim



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awareness program at prison; favorable correspondence from appellant’s

pastor; appellant is participating in the GED program at prison; appellant’s

strong   family   support;    and   appellant    had   no    prison   violations.

(Re-sentencing hearing transcript, 11/12/14, at 2-4.)            Appellant also

requested credit towards his sentence for the approximately 6 months he

spent at Peniel (from July 16, 2013, to January 23, 2014).

      The Commonwealth, in response, requested an increased sentence of

10 to 20 years, followed by a long probationary period. The Commonwealth

reintroduced one victim statement; noted that appellant’s prior record score

was actually 5 (not 4 as previously determined at the February 7, 2014,

sentencing hearing); and criticized appellant’s dishonesty at the PCRA

hearing relative to promises his defense counsel supposedly made to him

regarding his sentence. (Id. at 7, 11-12.)

      Following the arguments of counsel, the trial court re-sentenced

appellant at Case No. 239-2013 outside of the standard range to an

aggravated sentence of state imprisonment of 3-6 years, with RRRI

eligibility, and credit for time served in prison, but not in Peniel. Relative to

all other counts, the trial court ordered that the sentences imposed on

February 7, 2014, were to remain the same. In imposing this sentence, the

trial court acknowledged that appellant’s standard range, relative to Case

No. 239-2013, was 18 months to 24 months and the aggravated range was

36 months. The trial court declined to adopt a higher prior record score of 5



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on the grounds that the Commonwealth should have questioned any

inaccuracy at the February 7, 2014 sentencing hearing.        Further, the trial

court deemed all of the factors set forth by the Commonwealth as

aggravating factors. Overall, that resulted in a 6 to 12-year total sentence

with RRRI eligibility.

      On appeal, appellant raises two issues:

             1.    Whether the Trial Court erred in not giving the
                   Appellant    credit     for the  approximately
                   6 months spent in Peniel (an in-patient drug
                   rehabilitation facility)?

             2.    Whether the Trial Court erred in not sentencing
                   the Appellant to the case docketed at
                   239-2013 in a mitigated range at the low end
                   of the Sentencing Guidelines, by failing to
                   consider a number of mitigating factors,
                   including, but not limited to his young age, his
                   family and spiritual support, the progress for
                   self-development he made while incarcerated,
                   and his sincere remorsefulness for his crimes?

Appellant’s brief at 4.

      First, appellant argues that the trial court erred when it denied him six

months’ credit for his time spent at Peniel. We disagree.

      Generally, it is within the trial court’s discretion whether to credit time

spent in an institutionalized rehabilitation and treatment program as time

served “in custody.”      Commonwealth v. Conahan, 589 A.2d 1107 (Pa.

1991), Commonwealth v. Mincone, 592 A.2d 1375 (Pa.Super. 1991)

(en banc).




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      In Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super. 2007), this

court upheld the trial court’s refusal to reward a defendant’s actions with

credit for time served where the defendant failed to successfully complete

inpatient drug treatment. In that case, the defendant pled guilty to various

drug charges and requested the opportunity to participate in the Erie County

Drug Court. His participation in the Drug Court Program was voluntary. He

signed   an    agreement    which   demonstrated     that   he   understood   the

consequences of failing to adhere to the program requirements:

              I understand that if I am dismissed from the drug
              court program prior to satisfactory completion, my
              case will be listed for trial in the next term of
              criminal court and I will have to take my case to trial
              or enter a plea as if I had never been a participant in
              the drug court program.

Id. at 597.

      As it turned out, defendant failed to attend treatment as directed. He

failed to abstain from the possession and consumption of alcohol, failed to

abstain from the possession and consumption of controlled substances, and

failed to submit urine samples as directed.      Id. at 589 n.5.    Because the

defendant misused and abused the many opportunities for rehabilitation

without incarceration, we held that the court’s decision to refuse credit for

time served at the Drug Court Program was entirely within its purview.

      Here, as in Fowler, appellant requested the opportunity to voluntarily

enter Peniel to resolve his drug addiction prior to sentencing. The trial court

made no promises to appellant and very candidly explained to appellant that


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credit for time in Peniel would depend on his progress and successful

completion of the program.       As noted, appellant clearly understood the

consequences of failing to adhere to the program’s requirements. Appellant

was unsuccessfully expelled from the program when he threatened another

participant. The trial court explained its rationale for denying credit:

             [T]he opportunity to participate in the Peniel
             program is a privilege. Requests for admission far
             exceed the available bed space. Accordingly, when
             an applicant qualifies and the Court grants a request
             for admission, that applicant is prioritized over other
             applicants.   The only possible way to maintain
             continuity and fairness is to reward those who
             successfully complete the program and withhold
             reward from those who fail. This Court has never
             given credit for time served at Peniel to those who
             have been unsuccessfully discharged from the
             program. Any other policy by the Court would result
             in manifest unfairness and inequality.

Trial court opinion, 12/11/14 at 5.

       Appellant argues that his expulsion should not nullify the six months of

“good time” he spent at Peniel. He claims that Peniel is a very restrictive,

custodial environment, and that the time he spent there was served in lieu

of incarceration at the Cambria County Prison.      (Appellant’s brief at 8 and

11.)   He relies on Commonwealth v. Frye, 853 A.2d 1062 (Pa.Super.

2004).   Appellant argues that even though the defendant in Frye violated

the terms of her probation, she received credit on her sentence for time

spent “in custody” on house arrest. Appellant contends that likewise, even

though he did not successfully complete the Peniel program, he nevertheless



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should be given credit for the six months of “good time” he spent there

before he was expelled.

      We find Frye is distinguishable. The Frye court did not consider the

issue of whether the defendant forfeited her right to receive credit by failing

to successfully complete a voluntary pre-sentencing drug rehabilitation

program.4

      Here, appellant could not make bail.      He was originally transferred

from Cambria County Prison to Peniel voluntarily while awaiting trial and/or

a plea. At the October 22, 2013, plea hearing, appellant pled guilty to the

Cambria County charges.       He had already pled guilty to the Somerset

County charges. He was slated for prison. However, he asked the trial court

for mercy, to postpone his sentencing so that he could remain at Peniel to

overcome his heroin addiction, and to have the chance to prove to the

sentencing court that he voluntarily received treatment.       As his counsel

explained during the guilty plea hearing on October 22, 2013, attending

Peniel was an opportunity for appellant to obtain “an advantage or

consideration” of his treatment at sentencing.         (Guilty plea hearing,


4
  As appellant notes, the issue in Frye was whether the terms of the
defendant’s house arrest were sufficiently restrictive to count as custody
time. The court did not address whether the defendant forfeited credit for
the “good time” time she spent on house arrest in light of her probation
violation. In any event, Frye has been abrogated by Commonwealth v.
Kyle, 874 A.2d 12 (Pa. 2005), which precludes a defendant from receiving
credit for the time spent under house arrest. Here, whether Peniel was
sufficiently “prison-like” under Conahan was not an issue that was raised by
the parties nor addressed by the trial court.


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10/22/13 at 12.)     Appellant’s attendance at Peniel was a privilege, not a

sentence. Fowler clearly gives the trial court discretion to decide whether

time spent completing this type of program should be credited towards a

sentence.    The trial court clearly indicated to appellant in advance that it

would consider crediting the time spent at Peniel if appellant successfully

completed the program.

        The trial court did not abuse its discretion when it refused to credit

appellant for the time spent at Peniel due to his unsuccessful discharge from

the program. We wholly agree with the trial court that credit for a voluntary

inpatient   drug   treatment   should   be     commensurate     with   successful

completion of inpatient treatment. Appellant’s expulsion from the program

was tantamount to his not participating at all.       The trial court acted well

within its discretion in denying credit for time served under the facts of this

case.

        In his second issue, appellant asserts that the trial court imposed a

sentence at Case No. 239-2013 in the aggravated range without considering

mitigating circumstances. Specifically, he contends that the trial court failed

to consider his young age, his family and spiritual support, the progress for

self-development     he    made    while      incarcerated,   and   his   sincere

remorsefulness for his crimes.




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      Appellant’s claim challenges the discretionary aspects of his sentence.

Commonwealth v. Hyland, 875 A.2d 1175 (Pa.Super. 2005), appeal

denied, 890 A.2d 1057 (Pa. 2005).

            A challenge to the discretionary aspects of a
            sentence must be considered a petition for
            permission to appeal, as the right to pursue such a
            claim is not absolute. Two requirements must be
            met before we will review this challenge on its
            merits. First, an appellant must set forth in his brief
            a concise statement of the reasons relied upon for
            allowance of appeal with respect to the discretionary
            aspects of a sentence. Second, the appellant must
            show that there is a substantial question that the
            sentence imposed is not appropriate under the
            Sentencing Code. The determination of whether a
            particular issue raises a substantial question is to be
            evaluated on a case-by-case basis.        In order to
            establish a substantial question, the appellant must
            show actions by the trial court inconsistent with the
            Sentencing Code or contrary to the fundamental
            norms underlying the sentencing process.

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004) (internal

citations omitted).

      Appellant’s brief contains the requisite Rule 2119(f) concise statement

and, as such, is in technical compliance with the requirements to challenge

the discretionary aspects of a sentence.       (See appellant’s brief at 7.)

Therefore, we proceed to determine whether appellant has presented a

substantial question that the sentence appealed from is not appropriate

under the Sentencing Code. See McAfee, 849 A.2d at 274.

      A substantial question is raised where an appellant alleges the

sentencing court erred by imposing an aggravated range sentence without


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consideration of mitigating circumstances.          Commonwealth v. Felmlee,

828 A.2d 1105 (Pa.Super. 2003) (en banc); Hyland, supra.

      As presented, appellant appears to raise a substantial question as to

the discretionary aspects of his sentence. See id. Thus, we will review his

claim.

      “If the sentence is within the aggravated range, the sentencing court is

. . . required to state its reasons for choosing an aggravated sentence on

. . . the record. . . .”     Commonwealth v. Rodda, 723 A.2d 212, 217

(Pa.Super. 1999) (en banc).           In addition, “the sentencing guidelines are

advisory, and when justified, a court acts well within its discretion to

sentence outside the recommended ranges.”               Commonwealth v. P.L.S.,

894 A.2d 120, 128 (Pa.Super. 2006).

             [I]n exercising its discretion, the sentencing court
             may deviate from the guidelines, if necessary, to
             fashion a sentence which takes into account the
             protection of the public, the rehabilitative needs of
             the defendant, and the gravity of the particular
             offenses as it relates to the impact on the life of the
             victim and the community, so long as he also states
             of record the factual basis and specific reasons which
             compelled him to deviate from the guideline range.
             The sentencing guidelines are merely advisory and
             the sentencing court may sentence a defendant
             outside of the guidelines so long as it places its
             reasons for the deviation on the record.

Id. at 130–131 (citation omitted).

      Instantly,   the     trial   court   thoroughly   considered   the   totality   of

requirements mandated by Pennsylvania law including consideration of the



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substantial amount of restitution at issue, the need to ensure the safety of

the community, the input of the victims, the protection of the public, and the

serious nature of the crimes.     (Trial court opinion, 12/11/14 at 7.)   We

further observe that the trial court was intimately familiar with appellant’s

personal circumstances as it had handled appellant’s juvenile caseload for

numerous years.      The trial court reviewed the pre-sentence investigation

report in this case, and that report is included in the certified record. Our

supreme court has held that a sentencing court which has received a

pre-sentence investigation report is considered to have been fully informed

of the relevant factors prior to sentencing.   Commonwealth v. Devers,

546 A.2d 12, 18 (Pa. 1988).

      The trial court acknowledged appellant’s expression of remorse for his

actions, but found that appellant’s circumstances called for the sentences

imposed. Moreover, the trial court noted that it gave appellant the benefit

of the doubt by utilizing a prior record score of 4 instead of adopting the

Commonwealth’s argument that the guidelines be calculated with a prior

record score of 5.    The trial court also noted that it very well could have

imposed consecutive sentences in the low end of the standard ranges

relative to all 12 counts, and appellant could have received an overall

sentence of 10½ to 21 years, instead of the 6 to 12-year sentence he

received.




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     Based on all of the foregoing, we are satisfied that the sentencing

court sufficiently stated its reasons for the sentences imposed and

adequately articulated the aggravating circumstances justifying a departure

from the recommended sentencing guidelines and the sentence in the

aggravated range of the guidelines. We therefore find no abuse of discretion

in the sentence imposed.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2015




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