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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                  v.                        :
                                            :
JUDITH A. HOCKENBERRY,                      :
                                            :     No. 1121 MDA 2013
                          Appellant         :

               Appeal from the Judgment of Sentence May 7, 2013
              In the Court of Common Pleas of Cumberland County
                Criminal Division No(s).: CP-21-CR-0001038-2010

BEFORE: BOWES, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 21, 2014

        Appellant, Judith A. Hockenberry, appeals from the judgment of

sentence entered in the Cumberland County Court of Common Pleas

following the revocation of her intermediate punishment1 (“IP”) sentence for



*
    Former Justice specially assigned to the Superior Court.
1
    Our Supreme Court has explained:

           42 Pa.C.S. § 9763(c) authorizes a sentencing court to
           impose intermediate punishment as part of a sentence for
           DUI. Pursuant to that intermediate punishment, the court
           may attach any of a number of conditions upon the
           defendant as it deems necessary. These conditions include
           . . . participation in drug or alcohol screening and
           treatment programs . . . . 42 Pa.C.S. § 9763(b)(1)-(17)[.]

Commonwealth v. Kyle, 874 A.2d 12, 13 n.2 (Pa. 2005).

           The Legislature’s intent [behind the Pennsylvania County
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driving under the influence/high rate of alcohol2 (hereinafter “DUI”).

Appellant claims the trial court misapplied the law in not awarding her credit

for time spent in inpatient treatment as part of her IP sentence. We vacate

the sentence and remand for the court to award credit.

        The trial court summarized the procedural history of this case as

follows.    See Trial Ct. Op. 8/7/13, at 1-4.    On July 27, 2010, Appellant

pleaded guilty to DUI—third or subsequent offense and driving while

operating privilege is suspended or revoked.3 After evaluating Appellant, a

Cumberland-Perry      Drug    and    Alcohol    Commission     case     manager

recommended long-term inpatient treatment.         Id. at 1.   On October 5,

2013, the trial court imposed a sentence of five years in the IP program.

The following day, October 6th, Appellant “was sent to Bowling Green” at

Brandywine, an inpatient drug and alcohol rehabilitation center.            Id.

However, she was discharged on November 2nd because she was pregnant

           Intermediate Punishment Act, 42 Pa.C.S. §§ 9801-9813,]
           was: “to give judges another sentencing option which
           would lie between probation and incarceration with respect
           to sentencing severity; to provide a more appropriate form
           of punishment/treatment for certain types of non-violent
           offenders; to make the offender more accountable to the
           community; and to help reduce the county jail
           overcrowding problem while maintaining public safety.”

Commonwealth v. Williams, 868 A.2d 529, 534 (Pa. Super. 2005)
(citations omitted).
2
    75 Pa.C.S. § 3802(b).
3
    75 Pa.C.S. § 1543(a).



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and using substances. Appellant was then sent to Gaudenzia Vantage House

until April 1, 2011.

      On November 29, 2011, the probation department filed a petition to

revoke Appellant’s IP sentence, alleging Appellant (1) admitted using cocaine

and drinking alcohol, (2) tested positive for cocaine twice, and (3) was

“issued a citation for Public Drunkenness after being found to be under the

influence of alcohol at the Wal-Mart.”     Id. at 2.   The court subsequently

granted a continuance on the hearing on the petition to determine whether

Appellant “would be allowed to participate in the Cumberland County

Treatment Court Program.”      Id.   However, Appellant “did not enter the

Treatment Court Program.” Id.

      Nevertheless, the probation department later withdrew its revocation

petition “in an effort to afford [Appellant] another opportunity to lead a

sober life.”    Id.    Appellant, however, was required to: (1) undergo

monitoring on a SCRAM bracelet for a minimum period of six months, (2)

“complete the intensive outpatient program and the outpatient program

[sic]” at Roxbury Treatment Center, (3) complete daily logs to account for

her whereabouts, (4) comply with curfew requirements, (5) report to the

probation office every Monday and Wednesday until she obtained gainful

employment, and (6) obtain a General Educational Diploma. Id. “Initially,

[Appellant] complied with these conditions. However, on October 14, 2012,

[she] tested positive for using opiates and cannabinoids.” Id. at 3.



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      The probation department thus filed a second petition for revocation of

intermediate punishment on October 31, 2012. The court held a hearing on

November 20th. Appellant

            admitted that she had violated the conditions of her
            program and she was revoked from the Intermediate
            Punishment Program. . . . However, in a final effort to
            give [Appellant] a chance for a sober life, her Probation
            Officer requested that she be considered for the State
            Intermediate Punishment Program.

Id.   Subsequently, however, the Department of Corrections advised the

court that Appellant was not eligible for the state IP program “because she

was wanted for a Violation of Probation in Tennessee based upon an arrest

for Aggravated Assault on a Police Officer and Possession of Paraphernalia.” 4

Id.

      On May 7, 2013, the trial court, after obtaining an updated

presentence investigation report, imposed the underlying sentence for DUI:

a standard-range sentence of sixteen to forty-eight months’ imprisonment

with a Recidivism Risk Reduction Incentive sentence of twelve months. 5 The

court gave “credit for 260 days previously served in the county and state

prisons.”    Id. at 4.   Appellant filed a post-sentence motion, requesting an


4
 Tennessee authorities later indicated that it would not seek extradition of
Appellant. Trial Ct. Op. at 3.
5
  Appellant was also ordered to pay costs of prosecution, a $1,500 fine, and
$500 restitution. For driving while operating privilege is suspended or
revoked, the court imposed costs of prosecution and a $200 fine.




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additional credit of 177 days spent in inpatient treatment as a part of her IP

sentence. The court denied the motion, and this timely appeal followed. 6

      For her sole issue on appeal, Appellant claims the trial court erred by

not granting her credit for time served in inpatient drug and alcohol

treatment, totaling 177 days. Appellant’s Brief at 12. She alleges she was

entitled to credit because the treatment was a mandatory, court-ordered

condition of her original intermediate punishment sentence. Id. Appellant

claims her inpatient treatment constituted “time spent in custody” pursuant

to 42 Pa.C.S. § 9760(2) because it was not voluntary, she could not opt out

of treatment, and the inpatient facilities prevented her from leaving the

premises. Id. We hold that Appellant is entitled to relief.

      We first note:

            “[A] challenge to the trial court’s failure to award credit
         for time spent in custody prior to sentencing involves the
         legality of sentence[.]” It is now well-settled and

            essential that the [trial] court maintain the ability to
            incarcerate     persons    for   whom     intermediate
            punishment is no longer a viable means of
            rehabilitation.    Upon revocation, the sentencing
            alternatives available to the court shall be the same
            as the alternatives available at the time of initial
            sentencing. . . .

Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007) (citations

omitted).


6
  Appellant complied with the court’s order to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.



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      Section 9760 of the Sentencing Code governs credit for time served

and provides, in pertinent part:

         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. § 9760(1) (emphasis added); see also 42 Pa.C.S. § 9773(b)

(providing   that    upon    revocation    of    county    intermediate   punishment

sentence,    court   shall   consider     time    served   in   county    intermediate

punishment program).

      This Court has stated: “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.”           Fowler, 930 A.2d at 595 (citation

omitted).    While Section 9760, or any other provision of the Sentencing

Code, does not define the phrase “time spent in custody,” “[c]ourts 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 (citations omitted).

      With respect to IP, this Court has stated:

             “Intermediate punishment is an alternative to total
         confinement.” Our Supreme Court has concluded that the
         Legislature intended imprisonment and intermediate
         punishment to be mutually exclusive and to be treated
         differently, noting:



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            the Legislature provides that nothing in this chapter
            shall be construed as creating an enforceable right in
            any person to participate in an intermediate
            punishment program in lieu of incarceration. 42
            Pa.C.S.[A.] § 9812.      Thus, the Legislature now
            clearly distinguishes between incarceration, i.e.,
            imprisonment, and intermediate punishment.

        Generally, 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. at 596 (some citations omitted).

     Our review of Pennsylvania authority has not revealed a case with the

facts and question presented in this case—whether inpatient drug treatment

that is part of a county IP sentence, is “custody” for credit purposes.

However, we consider the following decisions.

     In the 1991 Pennsylvania Supreme Court decision of Commonwealth

v. Conahan, 589 A.2d 1107 (Pa. 1991), the defendant was arrested for

DUI, “voluntarily commenced inpatient treatment for DUI, which lasted for

ninety-five days,” and then subsequently pleaded guilty to DUI.               Id. at

1108. The trial court imposed a mandatory sentence7 of imprisonment and

gave credit for the ninety-five days of treatment. Id.

     Our Supreme Court first held that the term “custody” in section 9760

“includes   time   spent   in   institutionalized   rehabilitation   and   treatment

programs.” Id. at 1109. The Court then held that, in the case before it, the


7
  The defendant was convicted under the predecessor DUI statute, 75
Pa.C.S. § 3731. Conahan, 589 A.2d at 1108.



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trial court properly awarded the credit, noting:

         [The defendant] voluntarily and at his own expense
         entered a custodial hospital environment for well in excess
         of the applicable mandatory minimum sentence; [he] was
         restrained of his liberties during the entire time of his
         confinement in that if he had violated this custody by
         "walking away" he would not have received credit; and
         that he has taken responsibility for his alcoholism and
         maintained his sobriety through application of principles
         acquired during his rehabilitation and subsequent
         dedication to the ideology of Alcoholics Anonymous.

Id. However, the Court clarified that a DUI defendant was not entitled to

such credit as of right, and instead, the award of credit was at the trial

court’s discretion. Id. at 1110.

      Later that same year, the Superior Court decided Commonwealth v.

Cozzone, 593 A.2d 860 (Pa. Super. 1991). In that case, the defendant was

convicted of DUI. Id. at 861. While awaiting sentencing, he was arrested

and charged with DUI again. Id. As a condition for bail for the second DUI

charge, the defendant “entered an inpatient alcohol treatment center, where

he remained for thirty-two . . . days.” Id. He subsequently pleaded guilty

to the second DUI charge. The court imposed sentence in both cases at the

same hearing. Id. For the first DUI, it sentenced him to forty-eight hours

to twenty-three months.     Id.    For the second DUI, it sentenced him to a

consecutive term of thirty days to twenty-three months. Id.

      On appeal, the defendant claimed the court failed to give him credit

toward the second DUI conviction for time spent in treatment.      Id.   This

Court noted that he “was permitted by the District Justice to admit himself


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to an alcohol treatment facility in lieu of being committed to the county

prison,” and the “admission to a treatment facility was made a condition of .

. . bail.” Id. at 866. This Court reasoned the treatment was not voluntary

and held:

         [I]n contrast to Conahan, [the defendant] did not
         voluntarily admit himself to an alcohol treatment facility.
         Instead, he entered the rehabilitation facility as a condition
         of bail in order to avoid pre-trial imprisonment.          We
         conclude, therefore, that the time which [the defendant]
         spent as a patient in the alcohol treatment facility was
         “time spent in custody” within the contemplation of 42
         Pa.C.S. § 9760(1).     As such, he is entitled to credit
         therefor against the sentence of imprisonment imposed for
         his second offense.

Cozzone, 593 A.2d at 867-68.

      In the 2007 Superior Court decision of Fowler,8 the defendant

completed twenty-five months of inpatient drug treatment as a part of the

county Drug Treatment Court Program. Fowler, 930 A.2d at 588. The trial

court denied his request for credit for this time. Id. at 590. On appeal to

this Court, the defendant argued, inter alia, that he was entitled to the credit

because the court ordered his participation in the drug treatment.        Id. at

595. This Court disagreed, adopting the trial court’s reasoning:

         Importantly, it was [the defendant] who requested the
         opportunity to participate in the Erie County Drug Court.
         [The defendant’s] motivation, in part, was to avoid
         incarceration. . . .


8
 Fowler was an appeal from an order denying a Post Conviction Relief Act,
42 Pa.C.S. §§ 9541-9546, petition. Fowler, 930 A.2d at 588.



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           Equally as important was the fact [that the defendant’s]
           participation in the Drug Court Program was voluntary.
           This [p]rogram is not a mandated program. Instead, it was
           [the defendant] who requested to participate.        [The
           defendant] could opt out of the program at any time.

Id. at 597. This Court also found,

           [The defendant] had misused and abused the many
           opportunities for rehabilitation without incarceration that
           the court had provided to him. The [trial] court declined to
           reward [the defendant’s] actions with credit for time
           served.    The court’s decision was entirely within its
           purview.

Id. at 598.

         Finally, in Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super.

2010), the defendant was charged with DUI. Id. at 1243. “The magisterial

district judge provided in the . . . bail information . . . that [the defendant]

‘shall    enter   and   complete   [a]   comprehensive       in-patient   alcohol/drug

treatment program.’”         Id. at 1247.          Before entering treatment, the

defendant was arrested for public drunkenness and hospitalized for a

“dangerously high blood alcohol level.”           Id.   The defendant then “referred

himself for . . . inpatient treatment” in Oregon and transferred to a program

in Arizona for additional inpatient treatment. Id. at 1248. The total time

spent in these two programs was 354 days. Id.

         Thereafter, the trial court imposed a mandatory minimum sentence of

imprisonment.      Id. at 1243.     This Court specifically noted that the court

could not impose “any form of IP, such as placement in a residential

inpatient drug or alcohol treatment program, because [the defendant] was


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subject to a mandatory sentence of imprisonment[.]” Id. at 1252 n.11. The

defendant requested credit for the 354 days spent in inpatient rehabilitation.

Id. at 1243, 1247.     The trial court denied it, determining, “Despite the

language in the bail information,” the defendant “voluntarily checked himself

into treatment.” Id. at 1251.

      On appeal, this Court affirmed. Id. We first reviewed Conahan and

Cozzone and opined:

         [I]t 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 such commitment is a matter
         within the sound discretion of the court. Conahan. See
         also Commonwealth v. Mincone, . . . 592 A.2d 1375
         (Pa.Super. 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 1250-51.

      The Toland Court agreed that the defendant had “voluntarily

committed himself to residential rehabilitative treatment.” Id. at 1251. We

noted the defendant: (1) did not enter treatment until “one full month after

his release on bail, and after he had been re-arrested for public drunkenness

and hospitalized,” (2) conceded “that he did not enter inpatient treatment to



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avoid . . . jail for DUI, but did it ‘voluntarily’ to ‘save [his] life,’” (3) claimed

he began treatment as a condition of bail only after the trial court denied

him credit, and (4) “continued his preliminary hearing [eight] times in order

to remain in treatment, only to ultimately waive his preliminary hearing 15

months later, when, perhaps not coincidentally, he had spent nearly one full

year in residential inpatient treatment,” where the defendant “faced a

mandatory minimum sentence of one year of imprisonment.” Id.

      The Toland Court next considered whether the trial court abused its

discretion in denying credit.    Id.   The trial court had found the treatment

facilities “were not custodial and did not rise to the level of ‘imprisonment,’”

where the defendant “was not restrained and was free to leave treatment at

any time.” Id. Furthermore, the defendant “was permitted to do his own

grocery shopping[,] volunteer in the community,” and “had a part-time job

at Office Max.” Id. at 1252. This Court held that the defendant failed to

demonstrate an abuse of discretion. Id.

      Applying the dictates of Toland to the case sub judice, we review

whether Appellant’s participation in inpatient drug treatment was voluntary.

See id. at 1250-51.        In arguing that it was not voluntary, Appellant

emphasizes that inpatient drug treatment was a condition of her IP

sentence, she could not opt out of treatment at any time, and she could not

leave the treatment center, as police would have apprehended her.

Appellant’s Brief at 17.    In its opinion, the trial court did not discuss the



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voluntariness of Appellant’s drug treatment. Instead, its reasons for denying

credit are: (1) Appellant was clearly told that if she failed to comply with the

conditions of her IP sentence, she could be imprisoned up to 60 months; (2)

she was “given every chance” but repeatedly failed at her treatment; (3) she

was afforded 177 days of inpatient treatment, whereas “most other

participants in the Intermediate Punishment Program” receive 90 days; (4)

“the public spent well over $30,000.00 for [Appellant’s] rehabilitative

treatment” and she is not required to pay any of those costs; and (5) her

“inpatient treatment ultimately proved to be a failure [and] did nothing to

change her drug use habits,” and awarding credit “would reward failure.”

Trial Ct. Op. at 8-9.

      While it is clear the trial court carefully reviewed the history of

Appellant’s case, we hold the court erred in not considering whether she

voluntarily entered inpatient treatment. See Toland, 995 A.2d at 1250-51.

After review of the foregoing decisional authority and the certified record,

including the original sentencing order of October 5, 2010, and the trial court

opinion, we hold that Appellant’s participation in treatment was not

voluntary akin to that in Fowler and Toland. Although Appellant’s sentence

was not imposed through Drug Court, like the sentence in Fowler, she “was

sent to Bowling Green” the day after she was sentenced, unlike the

defendant in Towland, who did not enter treatment until one month after

release on bail and after another arrest for public drunkenness and



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hospitalization. See Towland, 995 A.2d at 1247, 1251; Fowler, 930 A.2d

at 588.   Appellant then “remained [at Bowling Green] until November 2,

2010, when she showed up at the Cumberland County Probation Office

having been discharged from Bowling Green.” Trial Ct. Op. at 1.

     Appellant avers on appeal that she is entitled to 177 days of credit,

which we calculate is the length of time between October 6, 2010, when she

started at Bowling Green, and April 1, 2011, when she left Gaudenzia

Vantage House. In light of our foregoing discussion, we agree that she is

entitled to this amount of credit.   Accordingly, we vacate the judgment of

sentence and remand for the trial court to award 177 days of credit.

     Judgment of sentence vacated.            Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2014




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