J-A22031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellant

                        v.

    AHMED NABIL DARWISH,

                             Appellee                   No. 3647 EDA 2016


           Appeal from the Judgment of Sentence September 1, 2016
               in the Court of Common Pleas of Monroe County
              Criminal Division at No.: CP-45-CR-0002402-2015


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED OCTOBER 31, 2017

        The Commonwealth of Pennsylvania appeals from the judgment of

sentence imposed on Appellee, Ahmed Nabil Darwish, following his entry of a

guilty plea to one count of retail theft.1 We affirm.

        We take the following relevant facts and procedural history from our

independent review of the certified record. On January 20, 2016, Appellee

entered an open guilty plea to retail theft, a charge that arose from his taking

of two containers of creatine supplements from a retail store in Mount Pocono,

Pennsylvania in July 2015.          The trial court deferred sentencing pending

preparation of a pre-sentence investigation report (PSI). Upon petition by


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3929(a)(1).
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Appellee, and with the express concurrence of the Commonwealth, the court

modified his bail “to $10,000.00 unsecured with the additional condition that

[Appellee] be released directly to the Salvation Army Adult Rehabilitation

Facility located in Harrisburg, Pennsylvania [(SAR program)] effective January

21, 2016.” (Order Accepting Guilty Plea, 1/22/16; see also Commonwealth’s

Concurrence, 1/19/16).         Appellee entered the six-month, in-patient drug

rehabilitation program on the day after he entered the plea, but was

discharged unsuccessfully on May 2, 2016, after a curfew violation and

positive urine screen. (See PSI, 2/09/16, at 2, 4c, 5). He absconded, failed

to appear at sentencing, and was later arrested on new charges.

       On September 1, 2016, the trial court sentenced Appellee in the

aggravated range to a term of not less than nine nor more than twenty-four

months’ incarceration, with credit for 108 days’ time served.2 On September

12, 2016, Appellee filed a motion for reconsideration of sentence.         On

September 20, 2016, following a hearing, the court entered an order denying

Appellee’s motion for reconsideration, but taking under advisement his

request for additional credit for his time in the SAR program. On October 28,

2016, the court entered an order amending Appellee’s sentence to reflect a

time credit of 207 days, based on its determination that he should receive


____________________________________________


2 The court ran the sentence consecutive to another sentence on a separate
retail theft conviction, for an aggregate term of not less than eighteen nor
more than forty-eight months’ incarceration.



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credit for time spent in the SAR program. (See Order, 10/28/16). This timely

appeal followed.3

       The Commonwealth raises one issue for our review:

             Whether the [trial] court abused its discretion in granting
          [Appellee] time credit for unproven time spent in an in-patient
          rehabilitation facility after he entered the program voluntarily,
          absconded from treatment prior to completion, willfully failed
          to appear for sentencing, and used illegal drugs and committed
          additional violent crimes while wanted in spite of the
          agreement that he would only receive credit for successful
          completion?

(Commonwealth’s Brief, at 5).

       Initially, we note that the Commonwealth challenges the discretionary

aspects of Appellee’s sentence.         See Commonwealth v. Shull, 148 A.3d

820, 847 n.14 (Pa. Super. 2016). Because the Commonwealth has timely

appealed, preserved its issue in the trial court, included a Rule 2119(f)

statement in its brief, and raised substantial question, we will review its claim

on the merits, employing an abuse of discretion standard of review. See id.;

see also Pa.R.A.P. 2119(f); Commonwealth v. Knox, 165 A.3d 925, 929

(Pa.   Super. 2017)       (setting forth       prerequisites for   merits review   of

discretionary aspects of sentence claim).

                    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
____________________________________________


3The Commonwealth filed a timely, court-ordered concise statement of errors
complained of on appeal on November 29, 2016. The trial court entered an
opinion on January 10, 2017. See Pa.R.A.P. 1925.

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

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

      In the instant case, the Commonwealth argues that the trial court

abused its discretion in granting Appellee credit for the time he voluntarily

spent in the SAR program.        (See Commonwealth’s Brief, at 11-18).        It

maintains that the award of credit was improper where: Appellee failed to

complete the program and absconded; the amount of time he spent at the

facility was unsubstantiated; and it violated the parties’ plea agreement. (See

id. at 16-18). We disagree.

      “The Sentencing Code provides that a defendant shall receive credit for

all time spent in custody prior to trial[.]” Toland, supra at 1248. In

relevant part, section 9760 provides:

      § 9760. Credit for time served

      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(1).

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      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.

                   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 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.

             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.

Shull, supra at 847 (citations and some quotation marks omitted).

      In Toland, supra, this Court examined how our case law distinguishes

whether credit for time served should be granted or denied for stays in

inpatient treatment facilities. The Court stated:

            . . . [W]hether 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 (citations omitted; emphasis added); see also

Commonwealth v. Cozzone, 593 A.2d 860, 867-68 (Pa. Super. 1991)


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(concluding that defendant who entered rehabilitation facility as condition of

bail in order to avoid pre-trial imprisonment did not voluntarily admit himself

and was entitled to time credit).

      Toland involved a third-time DUI offender facing a one-year mandatory

sentence who requested 354 days’ credit for pretrial detention served at two

costly inpatient rehabilitation facilities. See Toland, supra at 1243, 1247-

48, 1252-53.     Despite language in the magisterial district judge’s bail

information directing the defendant to enter an inpatient treatment program,

the trial court nonetheless determined that he voluntarily entered, where he

did not enter treatment until one full month after his release on bail, and he

specifically explained that he checked in “voluntarily” to “save [his] life.” Id.

at 1251; see id. at 1247. The trial court denied credit for time served, and

this Court affirmed, stating:

             . . . [W]e cannot ignore the trial court’s cogent argument
      that allowing appellant credit in this case would invite defendants
      who can afford extended stays in inpatient rehabilitation facilities
      to “game the system.” Most defendants cannot afford to pay in
      excess of $100,000 and continue their cases indefinitely while
      they “rehab” at addiction facilities in Oregon and Arizona. The
      trial court states that “If this Court were to allow credit for time
      spent in rehab in this case, the Court could not look similarly
      situated defendants in the eye.” We also observe that it is a
      common thread throughout the trial court’s opinion that appellant
      was purposely trying to avoid a mandatory sentence of
      incarceration by taking advantage of a perceived “loophole” in the
      law, i.e., by delaying his case and remaining in inpatient treatment
      until the mandatory minimum 12-month sentence had nearly
      expired. Such conduct should not be countenanced.




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            Certainly the trial court is in a better position to observe
      appellant’s demeanor and decide whether his efforts were sincere
      and not simply a ploy to avoid the mandatory sentencing penalties
      for repeat DUI offenders. . . .

Id. at 1253 (record citations omitted).

      Here, in contrast to Toland, there is no indication in the record that

Appellee admitted himself into an exclusive, costly rehabilitation facility to

take advantage of a loophole in the law, or that there was any delay between

his release on bail and entry into the facility. Both parties and the trial court

were aware of Appellee’s need for treatment for his long-term struggle with

drug addiction, and the record indicates that the SAR program was modest

and community based, designed to “meet the basics of a person’s needs[,]”

not a type of “scenic [] getaway” described in Toland. Toland, supra at

1252; (Petition to Modify Bail, 1/19/16, at Exhibit A, SAR Intake Letter); (See

also N.T. Guilty Plea, 1/20/16, at 10-11, 13; PSI at 4c, 6).

      Further, the trial judge, who was in the best position to assess the

circumstances, specifically found that Appellee did not voluntarily enter the

SAR program. (See Trial Court Opinion, 1/10/17, at unnumbered pages 3-

4). Instead, Appellee entered the program as an express condition of his bail

pending sentencing. (See Order Accepting Guilty Plea, 1/22/16). Thus, we

conclude that Appellee was ordered into inpatient treatment by the trial court,

and is entitled to credit for that time against his sentence. See Toland, supra

at 1250–51; Cozzone, supra at 867-68.

      Furthermore, even if we deemed Appellee’s commitment to the SAR

program voluntary, we discern no abuse of discretion in the trial court’s

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approval of time credit. See Toland, supra at 1251. Although Appellee failed

to complete the treatment program and absconded, it is clear from the record

that the court fully considered these factors in sentencing him to an

aggravated-range sentence, which it ran consecutively to a second retail theft

conviction, for a lengthy aggregate sentence. (See N.T. Sentencing, 9/01/16,

at 13-15).

        With respect to the Commonwealth’s assertion that the court speculated

regarding the amount of time Appellee actually spent in the SAR program, we

find this claim disingenuous, where the record plainly reflects that he

participated in the program from January 21, 2016 until May 2, 2016. (See

Order Accepting Guilty Plea, 1/22/16; N.T. Guilty Plea, at 14; PSI at 2, 4c, 5;

see also Commonwealth’s Brief, at 16-17).

        Finally, we acknowledge the Commonwealth’s argument that its consent

to Appellee’s participation in the SAR program was premised on the court’s

award of time credit for successful completion only, and that the “court’s

refusal to honor this agreement deprives the Commonwealth of the benefit of

the bargain in its plea agreement.” (Commonwealth’s Brief, at 18). However,

our review of the guilty plea proceedings demonstrates that the issue of time

credit was not raised at that time. (See N.T. Guilty Plea, at 9-14; see also

Order    Accepting   Guilty   Plea,   1/22/16;   Commonwealth’s   Concurrence,

1/19/16; Guilty Plea and Colloquy, 1/22/16). Therefore, the record belies the

Commonwealth’s claim.




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      In sum, we conclude that the record supports the trial court’s decision

to credit Appellee for the time he spent in the SAR program, and we discern

no abuse of discretion in its disposition of this issue. Accordingly, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Bowes joins the Memorandum.

      Judge Lazarus files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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