J-S19028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :    IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
                  v.                             :
                                                 :
                                                 :
    CARL A. HAGERTY                              :
                                                 :
                       Appellant                 :    No. 3455 EDA 2017

           Appeal from the Judgment of Sentence September 5, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                       No(s): CP-45-CR-0000004-2015,
              CP-45-CR-0001276-2015, CP-45-CR-0001626-2015,
                           CP-45-CR-0002508-2014


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                      FILED MAY 21, 2018

        Appellant Carl A. Hagerty appeals from the judgment of sentence of

forty-two    to    eighty-four   months’       incarceration   imposed   following   his

revocation from the state intermediate punishment (“SIP”) program.

Appellant first claims that this Court lacks jurisdiction over the appeal and

must remand the matter for resentencing; he further argues that the court

erred in denying his claim for additional time credit. We affirm.

        On August 24, 2015, Appellant entered a negotiated guilty plea for

numerous charges on the above-captioned docket numbers.1 On January 29,


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. § 3929(a)(1); 18 Pa.C.S. § 3921(a), 75 Pa.C.S. § 3802(d)(1)(i);
75 Pa.C.S. § 3802(d)(1); and 18 Pa.C.S. § 3925(a).
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2016, the trial court sentenced Appellant to twenty-four months of SIP, with

608 days of credit for time served.

      On August 16, 2017, the court was notified that Appellant was expelled

from SIP due to “his lack of meaningful participation in the program.” N.T.,

9/5/17, at 12. Specifically, Appellant continued to use illegal substances,

resulting in several positive drug screens.       Id. at 11.     As a result, on

September 5, 2017, the trial court revoked Appellant’s SIP sentence and

resentenced him to an aggregate sentence of forty-two to eighty-four months’

incarceration. Id. At that time, he was awarded time credit for 608 days spent

in prison, as well as time spent at an inpatient rehabilitation facility. Id. at 9,

11. At the conclusion of the hearing, the court gave Appellant his appellate

rights, stating, “[a]nd if you don’t file that post-sentence motion, then you

have 30 days from today’s date to file any appeal to the Superior Court. Do

you understand that, sir?” Id. at 20.

      On September 15, 2017, Appellant filed a motion for reconsideration

seeking additional time credit, which the trial court denied after a hearing on

October 23, 2017. N.T., 10/23/17, at 26. At the conclusion of the hearing on

Appellant’s motion, the court advised Appellant that he had thirty days to file

an appeal, and issued an order reflecting the same. Id. at 29; Trial Ct. Order,

10/23/17, at 1. Appellant filed a notice of appeal on October 30, 2017, and

subsequently complied with the trial court’s 1925(b) order.

      Appellant raises the following issues on appeal:




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      1. Whether this Court should vacate the sentence and remand for
         resentencing because this Court does not have jurisdiction to
         address an appeal filed more than thirty (30) days after
         resentencing on expulsion from SIP, and where a [s]entencing
         [c]ourt incorrectly informed Appellant during a colloquy that a
         [p]ost-[s]entence motion would toll the appeal period[]

      2. Whether the [s]entencing [c]ourt committed an error of law
         when it failed to award time credit for time spent in a court-
         ordered halfway house through the SIP [p]rogram, and where
         [Appellant] presented un-contradicted evidence about the
         circumstances of his tenure in that halfway house, which were
         substantially identical to confinement in a prison[]

Appellant’s Brief at 5.

      As a prefatory matter, we must address the timeliness of this appeal.

See Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en

banc). An appeal from a sentence following the revocation of intermediate

punishment must be filed within 30 days of the imposition of the new

sentence.    Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super.

2016) (citing Pa.R.A.P. 903(a)). In contrast to other sentencing situations,

the filing of a post-sentence motion does not extend the time to appeal a

sentence imposed after the revocation of intermediate punishment. Id.

      Here, the trial court revoked Appellant’s SIP sentence and resentenced

Appellant on September 5, 2017. He filed a motion for reconsideration on

September 15, 2017, which the court denied on October 23, 2017. Appellant

filed a notice of appeal on October 24, 2017, which was within thirty days of

the order denying his motion for reconsideration, but more than thirty days

from the court’s order imposing Appellant’s sentence. Thus, the instant appeal

is facially untimely.

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       While both Appellant and the Commonwealth acknowledge that the

appeal is untimely, they also agree that the late filing was a result of a

breakdown in the operations of the trial court.2        Appellant’s Brief at 11;

Commonwealth’s Brief at 6. Based on our review of the record, we agree. At

the resentencing hearing, the trial court did not properly instruct Appellant on

the appeal deadline. See N.T., 9/5/17 at 20; see also N.T., 10/23/17, at 29.

Additionally, in the order denying Appellant’s motion for reconsideration, the

court indicated that pursuant to Criminal Rule 720, Appellant had “the right to

appeal to the Superior Court of Pennsylvania within thirty (30) days of the

date of this order.” Trial Ct. Order, 10/24/17, at 1.

       Therefore, because Appellant’s error resulted from the trial court’s

misstatement of the appeal period, it operated as a “breakdown in the court’s

operation.” Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super.

2001) (holding that when appellant was led to believe that he had thirty days

to appeal from the denial of a reconsideration motion following revocation of

probation, our court declined to quash the appeal, recognizing that the

problem arose as a result of the trial court’s misstatement of the appeal

period, which operated as a breakdown in the court’s operation). Thus, we

decline to quash the appeal and proceed to address the merits.


____________________________________________


2 Appellant further contends that because the appeal is untimely, we lack
jurisdiction over the matter and are required to remand it for resentencing.
However, this conclusion is in direct conflict with our case law and is without
merit.

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      In his remaining issue, Appellant contends that he is entitled to 179 days

of additional time credit, arguing that he was “in custody” while he was at

Scranton Community Corrections Center (CCC). Appellant’s Brief at 12. In

support, Appellant claims that he was “physically restrained from coming or

going from [CCC] without permission to do some [sic] from an administrator

and a security officer” and “any time he was permitted to leave the facility

was circumscribed and monitored as to time and activity.” Id. at 13. He also

states that he was subjected to “searches, drug testing, and mandatory

participation in drug treatment programming.” Id. at 14.

      A claim based upon a trial court’s failure to give full credit for time

served implicates the legality of sentence. Commonwealth v. Dixon, 161

A.3d 949, 951 (Pa. Super. 2017). “Issues relating to the legality of a sentence

are questions of law.” Commonwealth v. Furness, 153 A.3d 397, 405 (Pa.

Super. 2016) (citation omitted). Thus, our standard of review is de novo, and

our scope of review is plenary. Id.

      The Sentencing Code provides, in pertinent part, that 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). With regard

to “custody,” this Court has explained:

         The easiest application of 42 Pa.C.S. § 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

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         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.

Commonwealth v. Fowler, 930 A.2d 586, 596-97 (Pa. Super. 2007)

(internal citations, brackets, and quotation marks omitted, and last alteration

supplied).

      The    Fowler   Court   also   noted   that   “the   Legislature   intended

imprisonment and intermediate punishment to be mutually exclusive and to

be treated differently.” Id. at 596. Further, “[g]enerally, it is within the trial

court’s discretion whether to credit time spent in an institutionalized

rehabilitation and treatment program as time served ‘in custody.’” Id.

      In considering other forms of custody, this Court recently summarized

our relevant case law, stating that generally,

      a defendant is entitled to credit for time he or she served in a
      court-ordered inpatient rehabilitation program but not for time
      spent   in   voluntary    inpatient   alcohol  treatment.   See
      Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010).
      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 two weeks’ credit against his
      intermediate punishment sentence for time served in an “Outmate
      Program,” in which the defendant completed community service

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      projects while under 24–hour supervision. Therein, the appellant
      included in his reproduced record a copy of a document detailing
      the numerous requirements of the Outmate Program, and the
      Commonwealth did not dispute the terms of the Program. Id. at
      190

      In contrast, when a defendant voluntarily admits himself into an
      inpatient rehabilitation center, the decision whether to credit him
      for time-served is within the discretion of the trial court. See
      Toland, supra; see also Commonwealth v. Conahan, 527 Pa.
      199, 589 A.2d 1107 (1991) (finding sentencing court did not
      abuse its discretion in giving defendant credit for time-served in
      an inpatient, institutional rehabilitation center). Also, in
      Commonwealth v. Maxwell, 932 A.2d 941 (Pa. Super. 2007),
      this Court precluded credit for electronic monitoring imposed as
      part of an intermediate punishment sentence.

Commonwealth v. Lee, ___ A.3d ___, 2018 PA Super 66, 2018 WL 1416904

(Pa. Super. filed Mar. 22, 2018).

      The facts in Lee are nearly identical to Appellant’s case. Like Appellant,

Lee was expelled from SIP and subsequently resentenced to a term of

imprisonment.    Id. at *1.    In both cases, the trial court declined to give

defendant credit for time he served in phase three of the program, finding

that CCC was not sufficiently custodial, and therefore, did not warrant

additional time credit. Id. at *5-*6. Ultimately, the Lee Court held that the

defendant was not entitled to credit for time served in CCC. Id.

      In affirming the trial court’s decision, the Lee Court stated:

      While all of [the a]ppellant’s time spent in [CCC] was court-
      ordered, i.e., part of his SIP sentence, upon our review of the
      foregoing decisional authority, the limited certified record, and the
      trial court’s opinion, we find the trial court did not commit an error
      of law in determining that [the a]ppellant is not entitled to credit
      for the days he spent in [CCC]. Although he testified he was
      required to report to the facility by nine o’clock each evening, he
      also admitted he was permitted to “gladly walk out,”

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      unaccompanied, to go to work each morning. See N.T., 6/16/17,
      at 16–17. Accordingly, we find [the appellant]’s time spent at that
      facility to be more akin to the time served on electronic monitoring
      in Maxwell, supra, as opposed to the twenty-four hour supervised
      “Outmate Program” analyzed in Tout–Puiss[an]t, supra.
      Therefore, the trial court correctly determined [the appellant] is
      not entitled to credit for the days he spent at [CCC].

Id. at *6.

      We find the reasoning in Lee to be directly on point in the instant case.

Here, at the hearing on Appellant’s motion for reconsideration, the trial court

heard argument from the Commonwealth and defense counsel, after which

Appellant testified concerning the details of his time at CCC. N.T., 10/25/17,

at 9-24.

      Specifically, Appellant explained that although he was required to be at

the facility between 9 p.m. and 7 a.m. each day, he was otherwise permitted

to “go to work, or go to the store, or we could get a pass to go to the bank to

get our check.” Id. at 10. He also testified that although the facility had a

curfew, exceptions could be made for those who had “overnight jobs.” Id. at

24. He further stated that he was subject to random drug screens and was

searched each time he entered the facility, although he was not always subject

to searches when he left. Id.

      In denying Appellant’s motion for reconsideration, the trial court stated:

      [T]he [c]ourt believes that the [c]ourt has discretion whether to
      award this time or not. And under these circumstances, and in
      light of the fact that he was in a Level 3 community house, [CCC],
      the [c]ourt is not convinced that that’s the equivalent of
      incarceration. Although, there have been some cases where I’ve
      awarded credits for that type of incarceration. But in light of the
      fact that [Appellant] was expelled from the program for continued

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      drug use during the time when he was in the Level 3 housing, I
      don’t think it’s appropriate at this point to award him that
      discretionary time.

Id. at 27.

      In its opinion, the trial court further explained that

      [a]t the time of the hearing on [Appellant’s] [m]otion to
      [r]econsider [s]entence, we set forth our reasons for not giving
      the requested time credit to [Appellant]. Specifically, we noted
      that there were no bars on the windows and [Appellant] left each
      day to work. In adjusting to the Level 3 and transitioning to be
      furloughed home, [Appellant] began using drugs again.

      Initially, we considered all of the facts and circumstances
      surrounding [Appellant’s] participation in the Level 3 facility and
      we determined that [Appellant] should not receive time credit. We
      did not recognize that facility to be equivalent to incarceration and
      we noted that [Appellant] tested positive for drugs on several
      occasions.

Trial Ct. Op., 12/1/17, at 4.

      Upon review, we conclude that there was no error in the trial court’s

denial of credit for time served at CCC while in the SIP program. In light of

this Court’s recent decision in Lee, and based upon the instant record, we

agree with the trial court that Appellant’s time at CCC was not sufficiently

custodial as to require credit for time served under 42 Pa.C.S. § 9760(1).

Therefore, the trial court acted within its discretion in denying Appellant’s

request for additional time credit. See Lee, 2018 WL 1416904, at *5.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




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