J. S10029/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                  v.                      :
                                          :
                                          :
JAMES V. KUTCHERA, JR.,                   :
                                          :
                        Appellant         :
                                          :     No. 2859 EDA 2016

           Appeal from the Judgment of Sentence August 8, 2016
              In the Court of Common Pleas of Carbon County
            Criminal Division at No(s): CP-13-CR-0000225-2014
                          CP-13-CR-0000330-2014
                          CP-13-CR-0000414-2014
                          CP-13-CR-0000419-2014
                          CP-13-CR-0000538-2014
                          CP-13-CR-0001207-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                           FILED MARCH 28, 2017

      Appellant James V. Kutchera, Jr., seeks review of the Judgment of

Sentence imposed by the Carbon County Court of Common Pleas following

his guilty pleas entered in six separate cases. He avers that the trial court

abused its discretion in denying him credit for time he spent in drug

rehabilitation programs. After careful review, we affirm.

      Appellant and the Commonwealth entered Stipulations in connection

with Appellant pleading guilty to four counts of DUI (controlled substance),

one count of Possession with Intent to Deliver (“PWID”), and one count of
J. S10029/17


Theft.1 The Stipulations for each of the DUI and PWID pleas indicate that

Appellant would receive credit for successful inpatient treatment.

      On August 8, 2016, the trial court held a sentencing hearing at which

several witnesses testified on Appellant’s behalf.     Relevant to this appeal,

Gary Billings, Appellant’s counselor at the Salvation Army Rehabilitation

Center, testified about the rehabilitation program and explicitly stated that it

is not considered an “inpatient” program. Notes of Testimony (“N.T.”)

Sentencing, 8/8/16, at 8.         Following testimony, the court sentenced

Appellant to the negotiated aggregate term of incarceration of two years to

twelve years less one day in a state corrections institute.          Against the

sentence, the court granted Appellant credit for 27 days spent at White Deer

Run for inpatient treatment and detoxification from February 12, 2014 to

March 10, 2014; and 291 days in the Salvation Army’s Four Step Program

from May 13, 2014 to February 27, 2015, for a total of 318 days.

      Appellant   filed   a   Post-Sentence   Motion   for   Reconsideration   of

Sentence, seeking additional credit of 310 days for time voluntarily spent in

the Salvation Army’s Extended Alumni Program between February 28, 2015,

and January 4, 2016; and 63 days voluntarily spent in the Joy of Living

Recovery Program from January 20, 2016 to March 23, 2016, for a total of


1
 Plea Stipulations on docket numbers 330 and 1207 were filed with the clerk
of the court of common pleas on August 6, 2014; the Stipulations for docket
numbers 414, 419, and 538 were filed on February 25, 2015.




                                      -2-
J. S10029/17


373 days. On August 30, 2016, the court granted 42 days additional days of

credit,2 but otherwise denied the Motion without a hearing.

        Appellant timely appealed. Both Appellant and the trial complied with

Pa.R.A.P. 1925.

        Appellant raises the following issues for review:

        1. Whether the Trial Court erred in denying [Appellant] additional
           credit toward his Sentences for his successful completion of
           Salvation Army’s Extended alumni Program of 310 days, in which
           he attended from February 28, 2015 to January 4, 2016.

        2. Whether the Trial Court erred in denying [Appellant] additional
           credit toward his Sentences for his successful completion of the Joy
           of Living Recovery Program of 63 days, from January 20, 2016, to
           March 23, 2016.

Appellant’s Brief at 3.

        Appellant’s claims implicate the legality of his sentence.           See

Commonwealth         v.   Tobin,   89   A.3d   663,   669   (Pa.   Super.   2014)

(recognizing that a claim based upon the failure to give credit for time

served as a challenge to the legality of a sentence). “A claim challenging the

legality of sentence is appealable as of right.” Commonwealth v.

Hollawell, 604 A.2d 723, 725 (Pa. Super. 1992); Commonwealth v.

Clark, 885 A.2d 1030, 1032 (Pa. Super. 2005). Our scope and standard of

review for illegal sentence claims is as follows:

        The scope and standard of review applied to determine the
        legality of a sentence are well established. If no statutory
        authorization exists for a particular sentence, that sentence is

2
    The court applied the 42 days’ additional credit to the PWID sentence.



                                        -3-
J. S10029/17


        illegal and subject to correction. An illegal sentence must be
        vacated. In evaluating a trial court's application of a statute, our
        standard of review is plenary and is limited to determining
        whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001–02 (Pa. Super. 2006)

(internal citations omitted).

        We address Appellant’s two issues together. Appellant avers that both

the Salvation Army’s Extended Alumni program and the Joy of Living

Recovery Program have restrictions, i.e., curfews, required attendance at

group therapy sessions, required pre-approval for any off-site visits, regular

chores, responsibilities, AA and NA fellowships, and volunteer work, thus,

implying that those restrictions are akin to custody. See Appellant’s Brief at

7, 9.     He also states that because “he discussed going to drug rehab

programs with the magistrate judges as part of his condition of bail,” he

“should be entitled to additional credit.” Id. at 10. Appellant also notes that

the Commonwealth agreed in the Plea Stipulations that he “would receive

credit toward his successful completion of his drug rehabilitation.” Id. at 10.

Although not raised in his Statement of Questions Presented as a separate

issue, he avers that “[t]o not give full credit violates the terms of the

Commonwealth’s Guilty Plea Stipulations.” Id. at 13-14.

        With respect to sentencing generally, we observe:

        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 is not shown merely by an error in judgment.
        Rather, the appellant must establish, by reference to the record,


                                       -4-
J. S10029/17


       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. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)(internal

citations and quotation marks omitted)..

       42 Pa.C.S. § 9760 governs credit for time served.           It provides, in

relevant part:

       (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. § 9760(1).

       “The principle underlying this statute is that a defendant should be

given credit for time spent in custody prior to sentencing for a particular

offense.”    Commonwealth v. Hollawell, 604 A.2d 723, 725 (Pa. Super.

1992). For purposes of section 9760, “time spent in custody” includes time

spent in institutionalized rehabilitation and treatment programs that strictly

supervise patients, monitor progress, and confine patients to the treatment

facility.    Commonwealth v. Conahan, 589 A.2d 1107, 1109 (Pa. 1991)

(Opinion of the Court). If a defendant is court-ordered to confinement in an




                                        -5-
J. S10029/17


institutional treatment facility before being sentenced, he is entitled to credit

for the time spent in treatment. Id.3

      There is, however, no automatic entitlement to credit for time a

defendant voluntarily spends in inpatient treatment.       Commonwealth v.

Toland, 995 A.2d 1242, 1250 (Pa. Super. 2010).          Rather, the sentencing

court in its discretion may grant credit for this time. Id. 1250-51.

      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.

Toland, supra, at 1250–51 (internal citations omitted).

      Most recently, in Commonwealth v. Shull, 148 A.3d 820 (Pa.Super.

2016), this court affirmed the denial of a defendant’s request for credit for

pre-trial time spent in inpatient treatment, notwithstanding that defendant’s

bail bond was modified to include as an additional condition of his release

from jail that he remain in treatment at the facility where he voluntarily

began treatment one week earlier and not leave unless accompanied by a


3
  Nonmonetary conditions of release on bail generally do not count as pre-
sentence custody for which sentencing credit is due. See, e.g.,
Commonwealth v. Kyle, 874 A.2d 12, 20 (Pa. 2005) (discussing bail
conditions, and holding that release on bail to home with electronic
monitoring is not “custody” entitling one to sentence credit).



                                      -6-
J. S10029/17


facility employee or for the purpose of attending a court hearing.             We

concluded that, as in Toland, supra, the defendant had voluntarily admitted

himself into a treatment facility “not to avoid pretrial detention but, instead,

to acquire for himself the best treatment available for his addiction and

medical difficulties.” Shull, supra at 849.

      As Appellant correctly notes, a plea agreement is contractual in nature.

Appellant’s Brief at 13, citing Commonwealth v. Anderson, 995 A.2d

1184, 1191 (Pa. Super. 2010).           Our courts utilize “concepts closely

associated   with   contract   law   when   evaluating   issues   involving   plea

agreements.” Commonwealth v. Martinez, 147 A.3d 517, 531 (Pa. 2016).

“[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled.” Id. at 532 (citation omitted).

      In addressing Appellant’s issues raised on appeal, the trial court

observed the following:

      In Defendant’s pro se Petition filed on April 7, 2014, Defendant
      admitted to having voluntarily admitted himself for inpatient
      treatment at White Deer Run for twenty-seven days which ended
      on March 10, 2014, and that at the conclusion of this stay he
      was advised to enter a long-term treatment program, [which
      was] the basis for his request seeking court approval for
      admission into a long-term treatment facility for six months or
      more.      In this Petition, Defendant expressly identifies the
      Salvation Army as the facility for which he was “waiting on a bed
      date,” and also states that his father, mother and future wife
      supported his request. Implied, if not specifically stated in the
      Petition, is that his life and future depended on his getting long-
      term treatment.



                                      -7-
J. S10029/17


     On April 23, 2014, in response to Defendant’s request, the
     magisterial district justice in the case docketed to No. 419 CR
     2014 set bail at $1,000.00, 10%, and imposed as a condition of
     Defendant being released on bail that “Defendant must report to
     a Rehab within 30 days from today or bail will be revoked.”
     Additionally, new charges in the cases docketed to Nos. 419 CR
     2014 and 414 CR 2014, formed the basis for a petition to revoke
     Defendant’s bail filed by the Carbon County Adult Probation
     Office on April 24, 2014, in the case docketed to No. 1207 CR
     2013. By amended order dated April 28, 2014,[ ] the Honorable
     Joseph J. Matika of this court revoked Defendant’s bail
     previously set at $5,000 unsecured; reset bail at $1,000.00,
     10%; and noted that if bail was posted, Defendant would have
     “30 days from April 23, 2014,[ ] to enter the Salvation Army
     Rehabilitation Center and successfully complete the program.”
     On April 28, 2014, Defendant, through his mother, posted the
     $100.00 bail amount required for his release in each of the three
     cases for which a monetary bail condition had been imposed,[ ]
     and was admitted into the Salvation Army’s Four Step Program
     on May 13, 2014.

     It is apparent from the sequence and timing of Defendant’s
     Petition for admission into a long-term treatment facility filed on
     April 7, 2014, the nominal amount of bail set, the bail conditions
     set by the magisterial district judge on April 23, 2014, Judge
     Matika’s order dated April 28, 2014, and the posting of
     Defendant’s bail on April 28, 2014, by his mother, all of which
     allowed Defendant to enter into the Salvation Army’s long-term
     program, that the courts were responding to Defendant’s
     decision and request to be admitted in the Salvation
     Army’s rehabilitation program. Similar to the numerous
     continuances noted by the Court in Toland, [supra], after
     Defendant entered the Salvation Army Program, he repeatedly
     applied to continue his plea date, which was unopposed by the
     District Attorney’s office, to allow him to complete the Salvation
     Army’s Four Step Program, and later to participate in and
     complete both the Extended Alumni Program and the Joy of
     Living Recovery Program. Though Defendant’s treatment in both
     the Salvation Army’s basic and extended rehabilitation programs
     was continuous, a sixteen[-]day break occurred between his
     completion of this treatment and his entry into the Joy of Living
     Recovery Program, a break which the Toland Court construed as
     supporting     the     sentencing      court’s  conclusion     that



                                    -8-
J. S10029/17


     notwithstanding the literal wording of the bail bond, defendant’s
     receipt of inpatient treatment was voluntary.

     With these considerations in mind, and in accordance with the
     cases cited above, we believe the instant case is more closely
     aligned with Toland and Shull than with Cozzone, and that the
     decision to grant Defendant any credit for the treatment he
     received was one within our discretion, and not as of right. It
     was Defendant who initiated and requested [that] he be allowed
     to participate in the Salvation Army Rehabilitation Program
     before the terms of his release on bail were changed to include
     rehabilitation, and it was Defendant who arranged to be
     admitted and thereafter voluntarily chose to remain in the
     program to better his life. Fairly stated, Defendant was not
     coerced into any treatment program by the bail conditions
     set by the court; rather, the bail conditions were changed
     to accommodate Defendant’s request to enroll in and
     attend a treatment program outside of the prison setting.

     This notwithstanding, in exercising our discretion we in fact gave
     Defendant full credit for the 291 days he spent in the Salvation
     Army’s Four Step Program between May 13, 2014, and February
     27, 2015, and also full credit for the 27 days he spent in the
     inpatient detoxification program at White Deer Run from
     February 12, 2014, to March 10, 2014, before any bail conditions
     were set in relation to Defendant receiving treatment for his
     addiction. Moreover, this credit was granted not only in the case
     docketed to No. 419 CR 2014, but also in the cases docketed to
     Nos. 330 CR 2014, 414 CR 2014[,] and 538 CR 2014. In doing
     so, we accepted that Defendant was committed to addressing his
     addiction; that he had devoted a significant amount of time in
     rehabilitation which he had successfully completed and where his
     life had been structured and his liberties restricted; and that
     Defendant appeared to have turned his life around and should be
     rewarded for his efforts.[] []

     In contrast to Defendant’s completion of the Salvation Army’s
     Four Step Program, not only was Defendant’s participation in the
     Salvation Army’s Extended Alumni Program and the Joy of Living
     Recovery Program also completely voluntary, his participation
     in these two programs was entirely optional on his part
     and was not a requirement of successful completion of the
     basic program. Moreover, the restrictions placed on Defendant
     in these two programs were less onerous than those in the Four


                                   -9-
J. S10029/17


     Step Program and were not so coercive as to constitute custody.
     In both of these programs, the Defendant was not locked in or
     confined to the facility; he was permitted to leave unescorted for
     appointments, work[,] and leisure activities; if he chose to leave
     the program, he could do so without being physically restrained
     – albeit[,] he would be terminated from the program; and if he
     left and did not return he would not be charged with escape.
     (N.T., 8/8/16, pp. 11-13, 15-24, 43-47, 55).[ ] . . .

Trial Ct. Op., dated Oct. 31, 2016, at 17 (footnotes omitted; emphasis

added).

     With respect to the Plea Stipulations, the court observed:

     In each of the six cases involved in this appeal, the
     Commonwealth and Defendant executed [S]tipulations which
     provided that Defendant would be granted credit against his
     sentence for successful inpatient treatment. Although multiple
     [S]tipulations with different dates appear in each case, the
     original of these stipulations bear dates of either June 17, 2014
     or July 31, 2014 (i.e., shortly after Defendant first entered the
     Salvation Army Program on May 13, 2014) and the most recent
     [S]tipulations in each case are dated February 25, 2015 (i.e.,
     shortly before Defendant completed the Salvation Army’s Four
     Step Program). Although we believe it significant that Defendant
     entered the Salvation Army Program before the first of the
     [S]tipulations was agreed to, we believe these [S]tipulations also
     provide an additional basis for the exercise of our discretion in
     awarding the Defendant credit for his successful completion of
     the Salvation Army’s Basic Four Step program.

     At the same time, we do not believe it was the intent of these
     [S]tipulations that Defendant be granted credit for multiple and
     sequential treatment programs regardless of their duration. To
     find otherwise, would allow Defendant to game the system and
     control how much time he would spend in jail simply by
     continuing in treatment outside of a prison facility. It appears
     unlikely that such a result was reasonably contemplated by the
     parties at the time the [S]tipulations were entered (N.T., 8/8/16,
     p. 542) and was certainly not what we understood the
     [S]tipulations to mean or what we felt bound to follow at the
     time Defendant’s pleas were taken. To the contrary, we believe
     our reading of the [S]tipulations was reasonable and the 318


                                   - 10 -
J. S10029/17


      days of credit which we awarded for Defendant’s long-term
      treatment in the Salvation Army’s Four Step Program combined
      with his treatment at White Deer Run, was both fair and just.

Trial Ct. Op. at 16, n.11.

      In addition to the trial court’s observations regarding the Stipulations,

we emphasize that the Salvation Army’s Four Step and Extended Alumni

Programs are not considered “inpatient” programs.4 See N.T. Sentencing at

8. Accordingly, they do not fall within the terms of the Plea Stipulations.

      Our review of the record supports the court’s conclusion that

Appellant’s bail conditions were altered to allow Appellant to obtain his

desired rehabilitation.   The record likewise supports the court’s conclusion

that Appellant voluntarily participated in each of the rehabilitation programs

attended in the two to three years between the commission of the crimes

and the imposition of his sentence. Thus, pursuant to the statutory and case

law discussed supra, whether to grant additional sentencing credit was

entirely within the trial court’s discretion.

      After careful review, we conclude that the trial court did not “ignore[]

or misappl[y] the law, exercise[] its judgment for reasons of partiality,

prejudice, bias or ill will, or arrive[] at a manifestly unreasonable decision” in

denying Appellant’s request for further credit for time spent voluntarily in




4
  The record does not indicate, and Appellant does not argue, that the Joy of
Living program was inpatient.



                                       - 11 -
J. S10029/17


non-custodial rehabilitation programs. Rodda, supra, at 214. Accordingly,

we affirm Appellant’s Judgment of Sentence.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




                                  - 12 -
