J-S56029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GARY L. GEROW JR.

                            Appellant                  No. 193 MDA 2014


         Appeal from the Judgment of Sentence of December 2, 2013
             In the Court of Common Pleas of Bradford County
             Criminal Division at No.: CP-08-CR-0000517-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                         FILED SEPTEMBER 23, 2014
                                                                1
                                                                    judgment of

sentence.     Because Gerow was entitled to credit for time served in an

inpatient treatment facility as a condition of his bail, we vacate the judgment

of sentence and remand with instructions.

       On May 14, 2013, Gerow grabbed a purse from an eighty-six-year-old

woman who was walking home from church.             Approximately twelve days

later, Gerow went to the police station because he was aware that he was

wanted for questioning.         Gerow admitted to the police that he stole the


____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
      Although the trial court states that Gerow was sentenced on December
5, 2013, the docket reflects December 2 as the date sentence was imposed.
J-S56029-14




receiving stolen property.2

       On June 26, 2013, Gerow was released on pre-trial bail. Among the



6/26/2013, at 2 (unnumbered). Gerow entered a detoxification program on

July 24, 2013, entered inpatient treatment on July 29, 2013, and was

discharged on August 14, 2013.          However, he did not successfully complete

the program.3

       On September 30, 2013, Gerow pled guilty to robbery graded as a

third-degree felony. On December 2, 2013, Gerow was sentenced to six to

twenty-three months of incarceration and was made eligible for work

release. The remaining charges were dismissed.



File Post-Sentence Motion to Modify Nunc Pro Tunc

alleged that he declined to file a post-sentence motion for fear of

jeopardizing his eligibility for work release.          When his work release
____________________________________________


2
       18 Pa.C.S.A. §§ 3701(a)(1)(v), 3921(a), and 3925(a), respectively.
3
     According to his discharge summary, Gerow attended daily meetings
and education sessions, including life skills, anger management, and relapse
prevention. Gerow also participated in individual sessions. Gerow did not

any progress on goals and objectives as well as gain any kind of


Petition for Leave to File Post Sentence Motion to Modify Nunc Pro Tunc.



                                           -2-
J-S56029-14



application was denied, Gerow sought to pursue modification of his

sentence, raising the issues of excessiveness of his sentence and failure to

credit time served at the treatment facility.

      On January 27, 2014, the trial court heard argument on the motion.

On the same day, the court issued an oral order, indicating that it would

permit the motion nunc pro tunc and would treat it as timely filed. N.T. at

10.   After hearing the arguments on the merits of the motion, the court

denied the request to credit time served and to modify the sentence. Id. at

11.

      On January 30, 2014, Gerow filed a notice of appeal. The trial court

ordered, and Gerow timely filed, a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed its Pa.R.A.P.

1925(a) opinion.

      Gerow raises two issues for our consideration:

      I.    Whether the sentencing court erred in failing to grant
            [Gerow] credit toward his sentence for time served in an
            inpatient drug and alcohol rehabilitation facility when it
            was a pre-trial bail condition?

      II.   Whether the sentence imposed by the trial court of six (6)
            to twenty-three (23) months of incarceration for one (1)
            count of robbery, a [felony] of the third degree, was
            excessive?




                                     -3-
J-S56029-14




he served in the inpatient rehabilitation facility.   Credit for time served is

controlled by statute, which states in pertinent part:

      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.

      Our Supreme Court addressed a similar issue in Commonwealth v.

Conahan, 589 A.2d 1107 (Pa. 1991).              In Conahan, the defendant

voluntarily entered into an inpatient treatment facility following an arrest for

driving under the influence. Id. at 1108. The defendant was in the program

for ninety-five days.   After his treatment was completed, the trial court

sentenced him to thirty days to one year of incarceration, provided credit for

the ninety-five days that he spent in the treatment program, and

immediately paroled the defendant. On appeal, this Court reversed, holding

                         not include inpatient treatment. Id.

      The Supreme Court disagreed and held that a defendant must be given

credit for time served in custody, pursuant to section 9760. However, the




                                      -4-
J-S56029-14



reh                                          Id. at 1109.      The Court also

enumerated the following factors that persuaded it that the time spent in



                                               ed   the   applicable   statutory



program and had he not completed the program, credit would not have been

due; and the defendant had taken responsibility for his actions and

maintained sobriety. Id. Finally, the Court determined that credit for time

served was not an entitlement, but was within the discretion of the

sentencing court. The Court concluded that the sentencing court had acted

within its discretion in granting the defendant credit for the ninety-five days

spent in the treatment program. Id. at 1110.

      Later that year, this Court resolved a similar issue in which

participation in the treatment program was required by the trial court as a

condition of bail. In that case, the defendant was arrested for driving under

the influence. Commonwealth v. Cozzone, 593 A.2d 860, 861 (Pa. Super.

1991). After being convicted, but before he was sentenced, the defendant

was arrested again for driving under the influence. He was released on bail

with the condition that he enter an inpatient alcohol treatment center. He

did so and stayed in treatment for thirty-two days, but was not credited for

that time when the trial court sentenced him. One of his issues on appeal

                    failure to credit him with those thirty-two days. Id.




                                     -5-
J-S56029-14



      Reviewing prior cases that gave credit for time served in a state

hospital for a mental health evaluation and a juvenile residential drug and

alcohol treatment program, we held that the defendant had been in custody

during the time that he spent in the inpatient treatment center. Id. at 866-

67.    We noted that, in Conahan, the defendant entered treatment

voluntarily, but that in Cozzone, the treatment was required as a condition

of bail. Therefore, we

                                                      Id. at 867-68.

      More recently, we held that a PCRA court did not abuse its discretion in

not giving credit for twenty-five months that the defendant spent in a drug

treatment court program or the time that the defendant spent in inpatient

treatment that was ordered by the court. Commonwealth v. Fowler, 930

A.2d 586, 599 (Pa. Super. 2007). In that case, the defendant was admitted

into a drug treatment court, but ultimately his participation was revoked

based upon violations of the conditions of his treatment. Id. at 589. In not



participation in the drug court was voluntary and that the inpatient facility

                                                    Id. at 597. Based upon

these findings, we determined that there was no abuse of discretion in the

failure to give credit. Id. at 599.

      Finally, in Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super.

2010), we addressed the seeming contradiction between Conahan

of discretion standard and Cozzone                               Toland, the

                                      -6-
J-S56029-14



defendant, who was convicted of driving under the influence, sought credit

for the time that he served in an inpatient alcohol rehabilitation center. Id.



complete [a] comprehensive in-

Id. at 1247.      While on bail, the defendant was arrested for public

drunkenness.   Soon after, the defendant entered a treatment program in

Oregon, followed by a second program in Arizona, for a total of 354 days.

After completing these programs, the defendant was tried and found guilty

of driving under the influence. Prior to trial, the defendant averred that he

entered the treatment programs voluntarily. Id. at 1248. In reconciling the

holdings of Conahan and Cozzone, we stated:

      Looking at these cases together, therefore, it seems that
      whether 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.

Id. at 1250-51 (citations omitted).    Despite the bail information, the trial

court found that inpatient treatment was not a bail condition. We concluded

that the record supported that finding. Id. at 1251. We then affirmed the

tr

part because the treatment program in which the defendant was admitted

did not restrict or restrain his freedom. Id. at 1251-52.

                                      -7-
J-S56029-14



      Gerow urges us to follow Cozzone. He argues that treatment was a

condition of his bail and that he did not enter voluntarily.    Therefore, he

asserts that he is entitled to credit. Gerow argues that his success or failure

                                                                        -14.

      The trial court acknowledged that Gerow entered treatment as a



the court noted that no evidence was presented that the program restricted

                                      ourt noted that Gerow did not return to

jail after his discharge, but remained free on bail. Id. The court recognized

Cozzone, but believed that the failure to complete the program sufficiently

distinguished that case. The trial court concluded that cooperation with the

treatment program was an implicit condition of bail and that, because Gerow

did not comply with that condition, he should not receive credit. Id. at 7.



                       at 3.

      The Cozzone Court distinguished Conahan, in which a defendant

voluntarily entered a treatment program and the court was required to

consider the characteristics of the treatment facility to determine whether

the program constituted custody. Cozzone, 593 A.2d at 867. Instead, we




freedom or to his success (or failure) in the treatment program, both of

which were highlighted in Conahan. Id. at 867-68. Therefore, to reconcile

                                     -8-
J-S56029-14



the cases, as in Toland, we conclude that when the entry into treatment is



success in the program should

awarding credit. However, when the treatment is mandated as a condition

of bail, the involuntariness of the decision to enter treatment is sufficient in

and of itself to entitle the defendant to credit pursuant to Cozzone. Here,

the trial court found that the treatment program was a condition of bail.



should have received credit. Therefore, we vacate the judgment of sentence

and remand the case to the trial court to provide Gerow with the credit to

which he is entitled for the time he served at an inpatient treatment facility

as a condition of his bail.

       In his second issue, Gerow challenges the discretionary aspects of his

sentence. Because his judgment of sentence has been vacated, this issue is

mooted.4

       Judgment of sentence vacated.             Case remanded with instructions.

Jurisdiction relinquished.
____________________________________________


4

2119(f) statement does not raise a substantial question.           The statement

Sentencing Code or the fundamental norms underlying the sentencing
           Commonwealth v. Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).
At best, Gerow offers a bald assertion that the court abused its discretion. A
bald assertion will not raise a substantial question.




                                           -9-
J-S56029-14



     Panella, J. joins the memorandum.

     Platt, J. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




                                        - 10 -
