J-A04008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TERENCE FOSTER,

                            Appellant                No. 1651 EDA 2016


             Appeal from the Judgment of Sentence May 6, 2016
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000764-2013,
                           CP-45-CR-0001181-2014


BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 12, 2017

       Appellant, Terence Foster, appeals from the judgment of sentence

entered on May 6, 2016, in the Monroe County Court of Common Pleas. We

affirm.

       The trial court provided the relevant factual history of this case as

follows:

             Within a thirteen month span, [Appellant] was twice
       arrested and twice pled guilty to Driving Under the Influence
       (DUI). First, in case No. 764 [Appellant] entered a counseled
       guilty plea to DUI, a misdemeanor of the first degree. This was
       [Appellant’s] third DUI within the ten-year look-back period.
       Sentencing was scheduled and a presentence investigation
       report (PSI) was ordered. Thereafter, prior to the imposition of

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     sentence, [Appellant] was arrested in case No. 1181 and
     charged with his fourth DUI. He later pled guilty.

            At the sentencing hearing initially scheduled in Case no.
     764, [Appellant] expressed his desire to be evaluated for
     participation in the State Intermediate Punishment (SIP)
     Program. The Commonwealth concurred and we ordered the
     Department of Corrections (DOC) to conduct an evaluation to
     determine [Appellant’s] eligibility for the program. [Appellant]
     was deemed eligible for SIP. Accordingly, on September 15,
     2014, we sentenced [Appellant] to the program in both cases.

           In a letter dated May 2, 2016, the DOC notified this Court
     that [Appellant] had been expelled from the SIP program. The
     letter requested that this Court conduct [a] SIP revocation
     hearing prior to [Appellant’s] maximum release date, to be
     followed by a resentencing hearing. The main reason cited for
     [Appellant’s] expulsion was his “Lack of Meaningful Participation
     in the program,” after he was returned to SCI - Quehanna
     following his most recent relapse. The DOC’s expulsion
     determination was based on [Appellant’s] several relapses,
     numerous behavioral infractions, an overall negative attitude
     towards staff and the treatment program, and failure to comply
     with program guidelines. Despite numerous interventions and
     warnings from the treatment staff, [Appellant] refused to engage
     and participate in his treatment.

            Following his expulsion from the SIP program, a revocation
     and resentencing hearing was held. At the conclusion of the
     hearing, we removed [Appellant] from the program and, in each
     case, resentenced him to 16 to 48 months in a state correctional
     institution (SCI), plus one year of probation. The sentences were
     run consecutively for an aggregate period of incarceration of 32
     to 96 months, followed by two years of probation. We gave
     [Appellant] a time credit of 456 days which, essentially,
     consisted of the number of days [Appellant] spent in prison
     before being entered into the SIP program, plus the number of
     days he spent in a SCI for the SIP evaluation and the first phase
     of the program.

           [Appellant] did not contest, or at least did not seriously
     contest, the reasons for his expulsion. He did ask for a time
     credit. However, he did not present evidence of the nature or
     types of the non-SCI facilities in which he was placed during the

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     SIP program, the length of time spent in each facility, the level
     of restriction at each facility, the number of days, if any, he
     spent in the community, his progress or lack of progress in the
     program, or other matters that would be relevant to a credit
     determination.1
          1
            As discussed later in this opinion, [Appellant] did
          not request a transcript of the revocation and
          resentencing hearing. Thus, neither this Court nor
          the Superior Court has the benefit of reviewing the
          specifics of the hearing. The descriptions contained
          in this opinion are to the best of our recollection.

           [Appellant] did not ask us to reconsider our determination.
     Instead, on May 27, 2016, he filed this appeal seeking additional
     time credit.2
          2
            After resentencing and before this counseled appeal
          was filed, [Appellant] submitted a pro se Petition for
          Credit for Imprisonment while in Custody requesting
          an additional credit of three-hundred twenty-two
          (322) days which he claimed to have spent in a
          Gaudenzia Rehabilitation Facility and a Community
          Corrections Center. However, this filing is a nullity.
          See Commonwealth v. Cooper, 27 A.3d 994 (Pa.
          2011); Commonwealth v. Jette, 23 A.3d 1032 (Pa.
          2011); Commonwealth v. Ali, 10 A.3d 282 (Pa.
          2010); Commonwealth v. Pursell, 724 A.2d 293 (Pa.
          1999); Commonwealth v. Ellis, 626 A.2d 1137 (Pa.
          1993); Commonwealth v. Glacken, 32 A.3d 750 (Pa.
          Super. 2011); Commonwealth v. Nischan, 928 A.2d
          349 (Pa. Super. 2007). Under these cases, it is well-
          settled that a motion filed pro se by a defendant who
          is represented by an attorney of record is generally
          considered a nullity. This is especially true when, as
          here, the attorney files a separate submission (the
          instant appeal) that is designed to effectuate the
          defendant’s interests and raise the issue the
          defendant wants raised, the defendant will not be
          prejudiced by dismissal of the improper pro se
          submission, issues have not been waived, and the
          pro se filing is defective. In any event, as noted,
          [Appellant] in this case did not present evidence that


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J-A04008-17


            would support his motion and request for additional
            time credit.

Trial Court Opinion, 7/15/16, at 1-3.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      Was [Appellant] in custody while serving time in a Community
      Corrections Center?

      Was the denial of time credit discretionary by the sentencing
      Judge?

Appellant’s Brief at 4.

      A challenge to a trial court’s failure to award credit for time already

served implicates the legality of the sentence imposed. Commonwealth v.

Pettus, 860 A.2d 162, 164 (Pa. Super. 2004). “A claim that the trial court

erroneously imposed an illegal sentence is a question of law and, as such,

our scope of review is plenary and our standard of review is de novo.”

Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013).

      After review, we conclude that there was no error in the trial court’s

denial of credit for time spent in a Community Corrections Center while on

State Intermediate Punishment (“SIP”).       A “period of incarceration is

mandatory pursuant to the SIP program; however, SIP is a voluntary

program that a defendant may agree to in lieu of a straight sentence of

incarceration.”   Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.

Super. 2010) (citing 61 Pa.C.S. § 4104(a)(1)).      “A plain reading of the

statute reveals that [a]ppellant’s SIP sentence could only include time spent

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J-A04008-17


in the actual program plus the time spent during the evaluation process at

an approved state correctional institution.”           Id. (citing 61 Pa.C.S. §

4105(b)(1)-(4)).       “In exchange for admittance into SIP, the defendant

surrenders his statutory right to credit for time served while housed in

a county correctional institution or non-Pennsylvania state correctional

facility.” Id. at 565 (emphasis added).1

       As noted, the time for which Appellant seeks credit was spent at a

Community Corrections Center while on SIP; it was not spent in a state

correctional institution.     Accordingly, Appellant was not entitled to credit for

time served. Therefore, we affirm Appellant’s judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


1
   In light of this Court’s holding in Kuykendall, we discern nothing
discretionary in the trial court’s ability to award credit for time served while
on SIP.     Accordingly, we do not address the discretionary aspects of
Appellant’s sentence. Assuming for the sake of argument that we were to
address the discretionary aspects of Appellant’s sentence, we would
conclude that the challenge was waived due to Appellant’s failure to obtain
transcripts of the proceedings in the trial court. See Commonwealth v.
Preston, 904 A.2d 1, 7-8 (Pa. Super. 2006) (stating that it is not the
responsibility of this Court to obtain the necessary transcripts and that
failure to provide an adequate record may result in waiver).




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J-A04008-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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