J-S33026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
               v.                                :
                                                 :
                                                 :
    JEREMY JAMES BROODY                          :
                                                 :
                      Appellant                  :   No. 1921 MDA 2016

             Appeal from the Judgment of Sentence July 20, 2016
               In the Court of Common Pleas of Wyoming County
             Criminal Division at No(s): CP-66-CR-0000160-2013,
              CP-66-CR-0000192-2013, CP-66-CR-0000192-2014


BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                    FILED AUGUST 17, 2017

        Jeremy James Broody appeals from the judgment of sentence imposed

on July 20, 2016, in the Wyoming County Court of Common Pleas. The trial

court sentenced Broody to an aggregate term of 48 to 108 months’

imprisonment on three separate drug cases, following his expulsion from the

state intermediate punishment (“SIP”) program.                  On appeal, Broody

contends the trial court failed to give him full credit for time-served, and

challenges the discretionary aspects of his sentence. Because we conclude

Broody was entitled to additional credit for time served, we reverse and

remand for further proceedings.                In all other respects, we affirm the

judgment of sentence.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        Broody’s convictions stem from his involvement in the sale of

narcotics, purportedly to support his own drug addiction. On July 11, 2014,

Broody entered a guilty plea in the following cases: (1) at Docket No. 2013-

CR-160, one count of criminal conspiracy; (2) at Docket No. 2013-CR-192,

one count of possession with intent to deliver controlled substances; and (3)

at Docket No. 2014-CR-192, one count of criminal conspiracy.1           He was

sentenced on February 19, 2015, to three, concurrent terms of 24 months in

the SIP program.

        At the time of sentencing, Broody was incarcerated at the Camp Hill

Correctional Facility, where he remained until March 3, 2015. He was then

transferred to Camp Quehanna State Correctional Facility.          Broody was

housed at Camp Quehanna for 124 days. Thereafter, he was transferred to

a rehabilitation center in Reading, where he remained for an additional 63

days.     On September 6, 2015, Broody was transferred to a community

correctional center in Warnersville, where he was permitted to leave for

eight hours per day of leisure time. However, after providing a urine screen

that tested positive for controlled substances, Broody was re-incarcerated at

the State Correctional Institution-Mahoney on October 27, 2015.             On

January 4, 2016, Broody was once again transferred to a community

correctional center in Pottsville.       He remained there until June 14, 2016,


____________________________________________


1
    See 18 Pa.C.S. § 903, and 35 P.S. § 780-113(a)(30).



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when he tested positive for controlled substances.          On June 29, 2016,

Broody was expelled from the SIP program.             See Trial Court Opinion,

1/18/2017, at 2.

        On July 20, 2016, Broody was resentenced to an aggregate term of 48

to 109 months’ imprisonment. On each docket, the court imposed a term of

16 to 36 months’ imprisonment, to run consecutively to each other.         The

court also gave Broody credit for 343 days’ time-served, but noted he might

be entitled to more credit for a period of time he was incarcerated prior to

his plea. See N.T., 7/20/2016, at 11. The court stated it would adjust the

sentencing order if the probation office determined Broody was entitled to

additional credit.    Id.   Further, the court found Broody was eligible for an

aggregate RRRI2 minimum of 40 months. Id. at 20.

        Broody filed a timely motion for          post-sentence relief, seeking

additional credit for time-served, and arguing the aggregate sentence

imposed was excessive.           On August 23, 2016, the court conducted a

hearing, and noted that it had confirmed Broody was entitled to an

additional credit of 224 days, for a total credit of 567 days’ time-served.

N.T., 8/23/2016, at 8. Nevertheless, Broody argued he was also entitled to

credit for the following time periods:           (1) 124 days served at Camp

Quehanna; (b) 63 days served at the Rehabilitation Center in Reading; and


____________________________________________


2
    Recidivism Risk Reduction Incentive, 61 Pa.C.S. § 4501, et seq.



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(c) 212 days served at the community correctional centers. See id. at 15-

17. On October 25, 2016, the trial court entered an order denying Broody’s

post-sentence motion. This timely appeal follows.3

       In his first issue, Broody contends the trial court failed to provide him

full credit for time-served. “A claim based upon the failure to give credit for

time served is a challenge implicating the legality of one’s sentence.”

Commonwealth v. Dixon, ___ A.3d ___, 2017 PA Super 129 (May 1,

2017) (quotation omitted). Accordingly, our standard of review is whether

the trial court “erred as a matter of law and … our scope of review is

plenary.”    Commonwealth v. Martz, 42 A.3d 1142, 1145 (Pa. Super.

2012) (quotation omitted), appeal denied, 57 A.3d 69 (Pa. 2012).

       At the time of sentencing, a defendant is entitled to credit “for all time

spent in custody as a result of the criminal charge for which a prison

sentence is imposed[.]”         42 Pa.C.S. § 9760(1).   In Commonwealth v.

Fowler, 930 A.2d 586 (Pa. Super. 2007), appeal denied, 944 A.2d 756 (Pa.

2008), this Court explained:

       The easiest application of [Section 9760] 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]
____________________________________________


3
  On November 29, 2016, the trial court ordered Broody to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). Broody complied with the court’s directive and filed a concise
statement on December 8, 2016.



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      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.

                                       ***

      The plain and ordinary meaning of imprisonment is confinement
      in a correctional or similar rehabilitative institution[.] “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 595-596 (quotations omitted).

      In considering other forms of “custody,” this Court has found,

generally, a defendant is entitled to credit for time-served in a court-ordered

inpatient rehabilitation program. See Commonwealth v. Toland, 995 A.2d

1242 (Pa. Super. 2010), appeal denied, 29 A.3d 797 (Pa. 2011). However,

when a defendant voluntarily admits himself to an inpatient rehabilitation

center, the decision whether to credit him for time-served is within the

discretion of the trial court.   Id.   See Commonwealth v. Conahan, 589

A.2d 1107 (Pa. 1991) (finding trial court did not abuse its discretion in giving

defendant credit for time-served in an inpatient, institutional rehabilitation

center).   Moreover, in Commonwealth v. Tout-Puissant, 823 A.2d 186

(Pa. Super. 2003), a panel of this Court determined that the defendant was

entitled to credit against his intermediate punishment (“IP”) sentence for




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two weeks of time served in an “Outmate Program,” in which the defendant

completed community service projects while under 24-hour supervision.4

       Nevertheless, the courts of this Commonwealth have made clear that a

defendant restricted under electronic monitoring is not “in custody” for

purposes of time-served credit.         Indeed, in Commonwealth v. Kyle, 874

A.2d 12 (Pa. 2005), the Supreme Court held “time spent on bail release,

subject to electronic monitoring, does not qualify as custody for purposes of

Section 9760 credit against a sentence of incarceration.” Id. at 20. Later, a

panel of this Court, in Commonwealth v. Maxwell, 932 A.2d 941 (Pa.

Super. 2007), appeal denied, 940 A.2d 363 (Pa. 2007), extended the Kyle

decision to preclude credit for electronic monitoring imposed as part of an IP

sentence.

       In that case, the defendant completed the IP part of his sentence, and

began a consecutive period of probation. See Maxwell, supra, 932 A.2d at

942.     During resentencing following a violation of his probation, the

defendant was not given credit for time-served on electronic monitoring

during the IP portion of his sentence.           See id.   On appeal, the defendant

argued Kyle was distinguishable because “his period of electronic monitoring

was part of his sentence … not a conditional release on bail or parole.” Id.


____________________________________________


4
  We note that the document explaining the “Outmate Program” specifically
referred to the program as “incarceration.” Tout-Puissant, supra, 823
A.2d at 189.



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at 943.   Since the defendant had successfully completed that part of his

sentence, he argued he should receive credit for time-served. See id.

      The panel, however, disagreed, finding no difference whether “this

alternative to incarceration” is employed pre-trial or as part of a sentence.

Id. at 947. The panel opined:

      In [the defendant’s] case, rather than incarceration, the trial
      court attempted to permit [the defendant] to be at home with
      electronic monitoring while he continued his mental health
      treatments and counseling.        The fact that [the defendant]
      completed this term of his sentence, but later had the
      probationary term of his sentence revoked, does not transform
      this prior period as “time spent in custody.”

Id.

      In the present case, Broody seeks time-served credit for three distinct

periods: (1) 124 days at Camp Quehanna; (2) 63 days at the rehabilitation

center in Reading; and (3) 212 days in the community correctional centers.

See Broody’s Brief at 6.     He contends Camp Quehanna is a “secure state

correctional facility” where “the inmates are locked down except for when

they are in the yard.”     Broody’s Brief at 7.   Similarly, he maintains the

rehabilitation center in Reading was “locked down for twenty-four (24) hours

a day” and he was not permitted to leave. Id. Although he acknowledged

he was allowed to leave the community correctional centers “for work and

leisure time,” he explains he had to return within eight hours.     Id. at 8.

Therefore, Broody contends the trial court erred in failing to give him credit

for time-served in these facilities.



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      In denying Broody’s post-sentence motion, the trial court simply

stated:

            In the instant matter, [Broody] agreed to participate in the
      SIP program. Some of the time [Broody] served was in facilities
      where [he] had “leisure time” to leave up to eight (8) hours per
      day. [Broody’s] time in these facilities did not consist of an
      ultimate restriction on his liberty and therefore, this Court did
      not include that time in its determination of [credit for time]
      served.

Trial Court Opinion, 1/18/2017, at 5.

      While all of Broody’s time spent in these facilities was court-ordered,

i.e., part of his SIP sentence, we find no abuse of discretion on the part of

the trial court in determining Broody is not entitled to credit for the 212 days

he spent at the community correctional centers. Although he was required

to   report   to   the   facility   every   night,   he   was   permitted   to   leave,

unaccompanied, for eight hours each day and could extend that time, with

prior approval, for overtime work. See N.T., 8/23/2016, at 19. Accordingly,

we find Broody’s time spent at these facilities more akin to the time served

on electronic monitoring in Maxwell, rather than the 24-hour supervised

“Outmate Program” at issue in Tout-Puissant.               Therefore, Broody is not

entitled to credit for the 212 days he spent at the community correctional

centers.

      However, the trial court, in its opinion, did not specifically discuss the

more restrictive environments Broody encountered at Camp Quehanna and

the Reading rehabilitation facility. Broody testified Camp Quehanna is a

“secure state prison,” where “everybody wears [Department of Corrections]

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... browns … and there’s [] full guards[.]           It’s a lockdown facility.”      N.T.,

8/23/2016,      at   21.     The    Commonwealth           did   not   dispute    Broody’s

characterization.      Rather, during the post-sentence motion hearing, the

Commonwealth conceded that if Broody was, in fact, transferred to Camp

Quehanna, he would be entitled to credit for his time there “since that is a

state facility, a lockdown facility, a secure facility[.]”Id. at 12.              Because

there is no dispute that Broody was housed at Camp Quehanna for 124

days, we conclude the trial court erred in failing to give him time-served

credit for that period.5

       Similarly, Broody testified the “DOC rehab center” in Reading was a

locked facility, where he received “inpatient intensive treatment.” Id. at 20.

He explained he was not permitted to leave the center, and was monitored

by the Department of Corrections.              See id.    The Commonwealth did not

provide any evidence or testimony contradicting Broody’s claims.

       Accordingly, we conclude the trial court erred in failing to give Broody

credit for the 124 days he spent at Camp Quehanna, and the 63 days he

spent at the Reading rehabilitation center.              At both facilities, Broody was

under constant supervision, and was not permitted to leave.                      Moreover,
____________________________________________


5
   Although there appeared to be some confusion at the post-sentence
hearing as to whether Broody was housed at Camp Quehanna, neither the
trial court, nor the Commonwealth, contests that fact on appeal. Indeed,
both list Broody’s time at Camp Quehanna in their respective recitation of
the facts. See Trial Court’s Opinion, 1/18/2017, at 2; Commonwealth’s Brief
at 1.



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because the time he served at these facilities was part of his SIP sentence,

we find they are similar to a court-ordered inpatient rehabilitation program,

for which he is entitled to time-served credit.        See Toland, supra.

Therefore, upon remand, we direct the trial court to modify Broody’s

sentence to include an additional 187 days’ credit for time-served.

      Next, Broody challenges the discretionary aspects of his sentence.

Specifically, he argues:

      The trial court failed to consider [Broody’s] crimes involved less
      than three (3) grams of heroin and his sales were to support an
      addiction. The trial court also failed to consider the amount of
      time [Broody] remained in the SIP program before being
      discharged. The sentences should have been run concurrently.

Broody’s Brief at 9.

      A challenge to the discretionary aspects of a sentence is not absolute,

but rather, “must be considered a petition for permission to appeal.”

Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (quotation

omitted). To reach the merits of a discretionary issue, this Court must

determine:
      (1) whether the appeal is timely; (2) whether Appellant
      preserved [the] issue; (3) whether Appellant’s brief includes a
      concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).




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      Broody complied with the procedural requirements for this appeal by

filing a timely post-sentence motion for modification of sentence, and

subsequent notice of appeal, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether he has raised a substantial question justifying our

review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).    “[A]n allegation that the sentencing court failed to

consider mitigating factors generally does not raise a substantial question for

our review.”     Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa.

Super. 2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132

S.Ct. 1746 (U.S. 2012).         However, an “excessive sentence claim[ ] in

conjunction with an assertion that the court did not consider mitigating

factors[,]”    does   present    a   substantial   question   for   our   review.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015), quoting Commonwealth v.

Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (en banc), appeal denied, 91


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A.3d 161 (Pa. 2014).     Moreover, while a challenge to the imposition of

consecutive versus concurrent sentences generally does not raise a

substantial question, such a claim may be addressed when the defendant

alleges the “aggregate sentence is unduly harsh, considering the nature of

the crimes and the length of imprisonment.”     Commonwealth v. Moury,

992 A.2d 162, 171-172 (Pa. Super. 2010).         Therefore, because we find

Broody’s claims nominally raise a substantial question, we proceed to an

examination of his arguments on appeal.

      Similar to the revocation of a probationary sentence, when a trial court

revokes an SIP sentence, “the sentencing alternatives available to the court

shall be the same as the alternatives available at the time of initial

sentencing.” 42 Pa.C.S. § 9774(c). Here, the trial court imposed a sentence

in the standard range of the Sentencing Guidelines on each conviction, but

ran the terms consecutively to one another. The court explained Broody’s

“actions exhibit a pattern of drug trafficking and any lesser [] sentence

would depreciate the serious nature of his offenses[.]” N.T., 7/20/2016, at

20.

      Upon our review of the record, we find neither the individual sentences

imposed, nor the court’s reasons therefor, demonstrate an abuse of

discretion. Broody fails to acknowledge he pled guilty to his participation in

three separate crimes, with three separate offense dates (9/11/2012,

11/16/2012, and 2/23/2014) occurring over a period of 17 months.


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Accordingly, the court’s imposition of consecutive terms of imprisonment

was reasonable.

      Moreover, as noted above, upon revocation of an SIP sentence, “the

sentencing alternatives available to the court shall be the same as the

alternatives available at the time of initial sentencing.”      42 Pa.C.S. §

9774(c).    The trial court initially gave Broody the opportunity to avoid

incarceration and obtain treatment for his drug addiction when it sentenced

him to the SIP program.        However, he failed to complete the program.

Broody has not demonstrated on appeal that the sentences imposed, either

individually or in the aggregate, were an abuse of discretion. Accordingly,

he is entitled to no relief on this claim.

      Because we conclude the trial court erred when it failed to give Broody

an additional 187 days’ credit for time-served, we reverse and remand to the

trial court. In all other respects, we affirm.

      Judgment of sentence affirmed in part, and vacated in part.        Case

remanded for correction of credit for time-served. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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