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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
ANTHONY GERALD MAGRETTO,                :          No. 1780 EDA 2016
                                        :
                        Appellant       :


             Appeal from the Judgment of Sentence, May 6, 2016,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0004485-2014


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 05, 2018

     Anthony Gerald Magretto appeals from the judgment of sentence of

May 6, 2016, following his conviction of driving under the influence --

controlled substance.   On appeal, appellant claims that he was entitled to

19 days’ credit against his sentence for time he spent in inpatient drug

treatment.   After careful review, we determine that the trial court did not

abuse its discretion in denying appellant credit time; however, we are

compelled to vacate the judgment of sentence and remand for resentencing

in light of Birchfield v. North Dakota,           U.S.     , 136 S.Ct. 2160

(2016).

                    On April 9, 2015, Appellant knowingly,
             intelligently and voluntarily pled guilty to driving
             under the influence (“DUI”) of a controlled substance
             of a refusal nature and driving under suspended
             license (“DUS”).    This Court granted Appellant’s
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          request to delay sentencing so that he could
          complete court-ordered assessment evaluations to
          assist the court at sentencing. Ten months passed
          without a word from the Appellant. Appellant failed
          to provide any evidence indicating that the
          court-ordered assessments were completed. At the
          sentencing hearing on February 10, 2016, this Court
          granted another continuance, allowing Appellant the
          opportunity to register with the Adult Probation
          Department     for   a   House   Arrest  Suitability
          Assessment.     Three months passed and again,
          Appellant failed to comply with that court-ordered
          directive.

                At his sentencing on May 6, 2016, Appellant
          was sentenced to undergo imprisonment for not less
          than five months nor more than five years in the
          Montgomery County Correctional Facility and to pay
          a [fine of] $1,500, as well as court costs.
          Furthermore, Appellant received credit for jail time
          already served from July 9, 2014 to August 1, 2014
          for the DUI sentence.        Finally, Appellant was
          sentenced to pay a $200 fine and court costs for the
          DUS conviction.      This court, in its discretion,
          sentenced Appellant below the sentencing guidelines
          of six to sixteen months due to the supportive
          testimony of Appellant’s grandfather.

                 Appellant    presented     minimal  evidence
          regarding any steps taken to maintain a clean
          lifestyle. While Appellant admitted being a heroin
          addict for over ten years, he did not present any
          evidence regarding rehabilitation efforts such as
          Narcotics Anonymous, a sponsor, or completion of
          any outpatient treatment.         Although Appellant
          mentioned spending 19 days at the Keystone Medical
          Center Treatment Program, he failed to provide
          documentation that he actually completed the
          program nor did he request credit for his
          participation at the time of sentencing.

                On May 13th, 2016, Appellant filed a
          post-sentence motion for relief requesting credit for
          time spent in the Keystone Medical Center Treatment


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            Program,    from April 24, 2015 to May 13, 2015. This
            Court, in   its discretion, having already provided the
            appellant    numerous opportunities, denied the post
            sentence     motion on May 19, 2016. This appeal
            follows.

Trial court opinion, 7/1/16 at 1-2.

      Appellant filed a timely notice of appeal on June 1, 2016. Appellant

has complied with Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a)

opinion.   On appeal, appellant argues that the trial court abused its

discretion in refusing to grant him 19 days’ credit time from April 24, 2015

to May 13, 2015, during which he was residing at Keystone Medical Center

(“Keystone”), an inpatient drug treatment facility.

                 Our standard of          review   in   appeals   of
            sentencing is well settled:

                  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, 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. Mann, 957 A.2d 746, 749
            (Pa.Super. 2008), quoting Commonwealth v. Ford,
            947 A.2d 1251, 1252 (Pa.Super. 2008) (citation
            omitted).




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Commonwealth v. Toland, 995 A.2d 1242, 1248 (Pa.Super. 2010),

appeal denied, 29 A.3d 797 (Pa. 2011).

                 The Sentencing Code provides that a defendant
          shall receive credit for all time spent in custody prior
          to trial:

                § 9760. Credit for time served

                (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(1). “The principle underlying
          [Section 9760] is that a defendant should be given
          credit for time spent in custody prior to sentencing
          for a particular offense.”     Commonwealth v.
          Fowler, 930 A.2d 586, 595 (Pa.Super. 2007),
          appeal denied, 596 Pa. 715, 944 A.2d 756 (2008),
          quoting    Commonwealth v. Hollawell, 413
          Pa.Super. 42, 604 A.2d 723, 725 (1992) (citation
          omitted) (emphasis deleted).

                The easiest application of [42 Pa.C.S.A.
                § 9760(1)] is when an individual is held
                in prison pending trial, or pending
                appeal, and faces a sentence of
                incarceration:    in such a case, credit
                clearly would be awarded. However, the
                statute provides little explicit guidance in
                resolving the issue before us now, where
                [the defendant] spent time [somewhere
                other] than in prison.        This difficulty
                results in part from the fact that neither


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                   Section 9760, nor any other provision of
                   the Sentencing Code, defines the phrase
                   “time spent in custody.” The difficulty is
                   also a function of the fact that there are
                   many forms of sentence, and many
                   forms of pre-sentencing release, which
                   involve    restrictions    far  short   of
                   incarceration in a prison.

            Id. at 595-596, quoting Commonwealth v. Kyle,
            582 Pa. 624, 632-633, 874 A.2d 12, 17 (2005)
            (citation omitted).  “Courts have interpreted the
            word ‘custody,’ as used in Section 9760, to mean
            time spent in an institutional setting such as, at a
            minimum, an inpatient alcohol treatment facility.”
            Id. at 596, quoting Kyle, 582 Pa. at 634, 874 A.2d
            at 18.

Toland, 995 A.2d at 1248-1249. Compare Commonwealth v. Cozzone,

593 A.2d 860 (Pa.Super. 1991) (defendant was entitled to credit for time

spent in residential treatment where he entered the rehabilitation facility as

a condition of bail in order to avoid pre-trial imprisonment), with

Commonwealth v. Conahan, 589 A.2d 1107 (Pa. 1991) (a defendant who

voluntarily commits him/herself to inpatient treatment is not automatically

entitled to time credit as a matter of law; whether to grant the defendant

credit was within the trial court’s discretion).

            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. Cozzone. By contrast, if a defendant
            chooses to voluntarily commit himself to inpatient
            rehabilitation, then whether to approve credit for


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            such commitment is a matter within the sound
            discretion of the court.       Conahan.        See also
            Commonwealth v. Mincone, 405 Pa.Super. 599,
            592 A.2d 1375 (1991) (en banc) (trial court may
            exercise its discretion in determining whether to
            grant defendant credit towards his mandatory
            minimum sentence of imprisonment for time
            voluntarily spent at Gateway Rehabilitation Center,
            an institutionalized rehabilitation facility) (discussing
            Conahan, supra).

Toland, 995 A.2d at 1250-1251.

      Thus, in Toland, this court held that the trial court did not abuse its

discretion in denying the defendant time credit, where he voluntarily

checked himself into residential rehabilitative treatment, he was not

restrained and was free to leave treatment at any time, and the trial court

found that these facilities were not custodial and did not rise to the level of

“imprisonment.” In the case sub judice, the trial court found that appellant

voluntarily participated in inpatient treatment at Keystone.            (Trial court

opinion, 7/1/16 at 3.) Appellant was not required to participate in a drug

treatment program as a condition of his bail.      Furthermore, there was no

evidence presented to the trial court establishing that the restrictions

imposed upon appellant at Keystone rose to the level of “imprisonment.”

(Id.) In fact, appellant did not request credit for the 19 days he spent at

Keystone until after sentencing.     (Id. at 2.)    At sentencing, counsel for

appellant simply observed, “From that assessment, it was recommended

that he continue with some type of inpatient treatment.           He completed

inpatient treatment at Keystone Center’s treatment program from April 24,


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2015, to May 13, 2015. So he understood that he had a problem.” (Notes

of testimony, 5/6/16 at 6-7.)          The trial court also observed that appellant

had failed to take advantage of other opportunities including house arrest.

(Id. at 14-15; trial court opinion, 7/1/16 at 4.)

      Appellant argues that he did not voluntarily enter treatment because

at the guilty plea hearing, the trial court directed him to undergo a urine

screen on the morning of his sentencing date and warned him that “You

have got your work cut out for you.”               (Appellant’s brief at 15-16, quoting

notes of testimony, 4/9/15 at 13-14.)                     According to appellant, this

constituted   an        “implied   threat”   that there     would    be   adverse   penal

consequences       if    appellant   did     not   work   on   his   addiction   problem.

(Appellant’s brief at 16-17.)         However, unlike the defendant in Cozzone,

who was allowed to admit himself to an alcohol treatment facility in lieu of

being committed to the county jail, appellant was never told he had to

complete an inpatient treatment program as a condition of his bail. The trial

court simply warned him that he would undergo a urinalysis prior to

sentencing and that, as a heroin addict, he had his work cut out for him.

The record supports the trial court’s finding that appellant’s decision to enroll

at Keystone was completely voluntary.

      Furthermore, appellant claims that Keystone was a “custodial hospital”

and that he was “restrained of his liberties during the entire time of his

confinement.”      (Appellant’s brief at 26.)         However, appellant provided no



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evidence in support of this claim. (Trial court opinion, 7/1/16 at 3.) In his

post-sentence motion, appellant merely averred that he sought inpatient

treatment at Keystone from April 24, 2015 to May 13, 2015, and requested

credit for that time against his prison sentence. (Docket #15.) For these

reasons, we determine that the trial court did not abuse its discretion in

denying appellant credit for the 19 days he spent in residential treatment at

Keystone.

     We now turn to the legality of appellant’s sentence and Birchfield.

Initially, we note that we can address the legality of appellant’s sentence

sua sponte.    Commonwealth v. Giron, 155 A.3d 635, 638 (Pa.Super.

2017) (citation omitted).   Appellant pled guilty to DUI as a first-degree

misdemeanor punishable by up to 5 years’ imprisonment.             This was

appellant’s second DUI, and he refused chemical testing; therefore,

75 Pa.C.S.A. § 3804(c)(2)(i) provides for a mandatory minimum sentence of

90 days’ imprisonment and a $1,500 fine. With an offense gravity score of 5

and a prior record score of 3, the guidelines provided for a standard range

sentence of 6 to 16 months. (Notes of testimony, 5/6/16 at 3; docket #14.)

Without evidence of appellant’s refusal, the offense would have been graded

as a third-degree misdemeanor punishable by a maximum of 6 months’

imprisonment, and a mandatory minimum of only 5 days’ imprisonment.

75 Pa.C.S.A. §§ 3803(a)(1), 3804(a)(2)(i).




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      In Giron, addressing Birchfield and Commonwealth v. Evans, 153

A.3d 323 (Pa.Super. 2016), this court held that, “in the absence of a warrant

or exigent circumstances justifying a search, a defendant who refuses to

provide a blood sample when requested by police is not subject to the

enhanced penalties provided in 75 Pa.C.S.A. §§ 3803-3804.”                 Giron, 155

A.3d at 640 (footnote omitted). As described above, without a finding that

he refused chemical testing, appellant faced a mandatory minimum of

5 days’ imprisonment and a maximum penalty of 6 months. With the finding

that he refused chemical testing, as a second time repeat DUI offender,

appellant faced a mandatory minimum of 90 days’ imprisonment and a

maximum penalty of 5 years’ imprisonment. As such, appellant’s sentence

of 5 months to 5 years’ imprisonment for his conviction of second-offense

DUI   --   general    impairment     with   refusal,   graded   as    a    first-degree

misdemeanor, was illegal and it is necessary to remand for resentencing.

Giron.

      Judgment       of   sentence   vacated.      Remanded     for       resentencing.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/5/18




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