J-S01005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SEAN ALEXANDER FAIRWEATHER,                :
                                               :
                      Appellant                :       No. 754 MDA 2017

                        Appeal from April 3, 2017 Order,
             in the Court of Common Pleas of Lackawanna County,
              Criminal Division at No(s): CP-35-CR-0000505-2013

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 21, 2018

        Sean Alexander Fairweather (“Fairweather”) appeals from the Order

denying his Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1, 2 We affirm.

        On December 11, 2013, Fairweather pled guilty to one count each of

possession with intent to deliver a controlled substance (“PWID”) and




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1   See 42 Pa.C.S.A. §§ 9541-9546.

2 Fairweather’s modified judgment of sentence became final on May 25,
2016, 30 days after its entry. A collateral challenge to the legality of
sentence, for failure to give credit for time served, must be brought
pursuant to the PCRA. Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.
Super. 2004). Regardless of what a defendant titles his petition, “the PCRA
is the exclusive vehicle for obtaining post-conviction collateral relief.”
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001).
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criminal use of a communication facility.3 On July 29, 2014, the trial court

sentenced Fairweather to two years in the State Intermediate Punishment

(“SIP”) Program, followed by two years of special probation for his conviction

of PWID, and three years of special probation for criminal use of a

communications facility.

        Subsequently, Fairweather violated his SIP sentence.                On March 28,

2016, the trial court revoked Fairweather’s SIP sentence, and resentenced

Fairweather to 18-36 months in prison, plus two years of special probation

for his conviction of PWID.            For his conviction of criminal use of a

communications facility, the trial court resentenced Fairweather to three

years of special probation, to be served consecutive to his sentence for

PWID. On April 25, 2016, the trial court modified and clarified its sentence,

vacating its award of credit for time served by Fairweather in the SIP

Program.

        On June 9, 2016, Fairweather filed a pro se Petition for credit for time

served.4     On July 15, 2016, Fairweather filed a counseled Motion for

Clarification and for Credit for All Time Served.            On April 3, 2017, after a

hearing,    the   PCRA     court    denied     Fairweather    relief   on    his   Motion.


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3   See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 7512(a).

4 See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011)
(explaining that a pro se prisoner’s document is deemed filed on the date he
delivers it to prison authorities for mailing).



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Fairweather thereafter filed a timely Notice of Appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

      Fairweather presents the following claims for our review:

      I.     Whether the [s]entencing [c]ourt erroneously classified
            [Fairweather’s]      time    spent  at   [SIP]   mandated
            rehabilitation facilities not as imprisonment, but as time
            free on liberty?

      II.   Whether[] the [s]entencing [c]ourt violated [Fairweather’s]
            right to due process by vacating time served without a
            hearing on the matter?

Brief for Appellant at 8.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

      Fairweather first challenges the trial court’s failure to award credit for

the time he served in SIP.     Brief for Appellant at 18.   Fairweather argues

that, as part of his sentence, he was required to be committed to drug and

alcohol rehabilitation facilities run by the Department of Corrections

(“DOC”).    Id. at 19.      Fairweather contends that the time he spent at

Gaudenzia Rehabilitation Centers (“Gaudenzia”) in Philadelphia and West

Chester should be credited towards his sentence. Id. at 19. According to

Fairweather, the Gaudenzia facilities were surrounded by a fence with



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barbed wire; the doors had electronic locks; he would have been considered

an escapee if he had left the facility; he was confined to the interior of the

facility unless scheduled for a recreational period in a fenced-in yard; and his

days were rigorously scheduled.          Id.    Fairweather further argues that he

was a “pre-release inmate” during his time at the Gaudenzia facilities. Id.

at 20. Fairweather directs our attention to the decision in Meehan v. Board

of Probation and Parole, 808 A.2d 313 (Pa. Cmwlth. 2002), in which the

Commonwealth Court concluded that time spent at a similar facility was

considered “custodial.”        Brief for Appellant at 20-21.      Fairweather further

argues that time he spent at the Scranton Community Corrections Center

(“CCC”) should be credited towards his sentence.             Id. at 21.    Fairweather

asserts that his status as a “pre-release inmate” did not change upon his

furlough to the CCC. Id.

        A challenge to the trial court’s failure to award credit for time served

prior   to   sentencing   is    a   challenge   to   the   legality   of   a   sentence.

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). The

question of whether a trial court imposed an illegal sentence is a question of

law and, therefore, our review is de novo. Commonwealth v. Infante, 63

A.3d 358, 363 (Pa. Super. 2013).

        As this Court has explained,

        SIP is a two-year program designed to benefit certain criminal
        offenders with drug and alcohol problems. Treatment in the
        program “is a privilege granted at the discretion of the
        sentencing court.” [Commonwealth v.] Kuykendall, 2 A.3d

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      [559,] 565 [(Pa. Super. 2010)]. During the two-year program,
      the sentenced individual progresses from incarceration to in-
      patient drug treatment, outpatient treatment and supervision,
      and, finally, reintegration into the community. 61 Pa.C.S.[A.]
      § 4105(b); see Kuykendall, 2 A.3d at 560. The program gives
      the [DOC] “maximum flexibility” to “transfer a participant back
      and forth between less restrictive and more restrictive settings.”
      61 Pa.C.S.[A.] § 4105(c)(2).

      Under Section 4105(f)(3), “[a] participant may be expelled from
      the drug offender treatment program at any time in accordance
      with guidelines established by the department, including failure
      to comply with administrative or disciplinary procedures or
      requirements set forth by the department.” 61 Pa.C.S.[A.]
      § 4105(f)(3). Section 9774 of the Sentencing Code provides
      that if a SIP participant is expelled, the trial court may revoke a
      participant’s SIP sentence after a hearing. At that point, “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.[A.] § 9774(c).

Commonwealth v. Flowers, 149 A.3d 867, 873 (Pa. Super. 2016).

      In   Kuykendall,     this   Court    explained   that,   “[i]n   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.” Kuykendall, 2 A.3d at 565. “The

SIP statute specifically states that a defendant will not receive credit for time

served while incarcerated in a county correctional facility.” Id. at 563 (citing

61 Pa.C.S.A. § 4105(b)).

      By accepting SIP, Fairweather surrendered his statutory right to credit

for time served while housed at Gaudenzia and CCC.             See Kuykendall, 2




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A.3d at 565.     Accordingly, he is not entitled to relief on his first claim. 5,   6



See id.

       In his second claim, Fairweather argues that his constitutional right to

due process was violated when the sentencing court vacated the portion of

the sentence awarding credit for time served, at the request of the DOC.

Brief for Appellant at 22.       Fairweather asserts that the modification of his

sentence constituted the imposition of a new sentence.                Id. at 23.

Fairweather asserts that he was not notified, nor present, for the issuance of

the new sentence, entered on April 2, 2016. Id. Fairweather argues that

“[t]his was, in effect, a sentence handed out by the DOC, which it had no

standing to do ….” Id. at 24.

       The Pennsylvania Commonwealth Court has addressed a similar issue,

and concluded that a prisoner’s due process rights were safeguarded, where

the DOC has inquired about the trial court’s credit for time served:

       Where a trial court’s sentencing order is illegal on its face, due
       process opportunity to be heard is afforded to the prisoner
       seeking credit in the form of a nunc pro tunc petition to the
       sentencing court, and if denied, through further appeal
____________________________________________


5 Fairweather’s reliance upon Meehan is misplaced, as in that case, the
defendant was sentenced to a rehabilitation clinic as a condition of his
parole, and not as part of the SIP Program. See Meehan, 808 A.2d at 315.

6 However, even if Fairweather had not been sentenced to Gaudenzia and
CCC as part of SIP, we would conclude that he is not entitled to relief, for
the reasons stated in the PCRA Court’s Opinion. See PCRA Court Opinion,
7/11/17, at 4-6.




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       therefrom. Where a trial court’s sentencing order is legal on its
       face, due process opportunity to be heard is afforded since a
       prisoner may petition [the Commonwealth] Court[,] in [its]
       original jurisdiction[,] seeking a writ of mandamus to compel
       DOC to properly compute a prisoner’s prison sentence.

Barndt v. Pa. Dep’t of Corr., 902 A.2d 589, 598 (Pa. Cmwlth. 2006)

(citations omitted).        We agree with and adopt the reasoning of the

Commonwealth Court.7 See id.

       In his PCRA Petition, Fairweather challenged the trial court’s failure to

award credit for the time he spent in the SIP Program. As set forth above,

the PCRA court properly concluded that the statute precludes the award of

credit for time spent in the SIP Program. Accordingly, we discern no abuse

of discretion or error by the PCRA court in denying Fairweather relief on this

claim.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018
____________________________________________


7 We additionally point out that the trial court modified Fairweather’s
sentence within 30 days of its initial entry. “Section 5505 of the Judicial
Code provides the trial court 30 days to modify or rescind a final order,
provided no appeal has been taken or allowed.”         Commonwealth v.
Borrin, 80 A.3d 1219, 1224 n.9 (Pa. 2013).



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