J-S53008-14

                              2014 PA Super 206

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
DARRIN JAMES MELIUS,                     :
                                         :
                  Appellant              : No. 1624 WDA 2013

           Appeal from the Judgment of Sentence August 19, 2013,
                  Court of Common Pleas, Cambria County,
              Criminal Division at No. CP-11-CR-0000321-2011

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

OPINION BY DONOHUE, J.:                       FILED SEPTEMBER 19, 2014

       Appellant, Darrin James Melius

2013 judgment of sentence entered by the Court of Common Pleas of

Cambria County following the revocation of his furlough for drug treatment.



       Because Melius raises a challenge to his sentence on procedural

grounds, a recitation of the facts underlying his criminal convictions is

unnecessary. The relevant procedural history of this case is as follows. On

April 26, 2011, Melius pled guilty to one count of conspiracy to commit retail

theft.1   The trial court sentenced Melius to 12 months of probation.      On




1
    18 Pa.C.S.A. §§ 3929(a)(1), 903(a)(1).


*Retired Senior Judge assigned to the Superior Court.
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sentenced him to three to 23 months of incarceration. Melius served three

months of his sentence before his release.

      In June 2012, while on parole for his three to 23 month sentence,

Melius was charged in Indiana County with retail theft. As a result, on July

24, 2012, the trial court found Melius to be in violation of his parole, but

stayed the matter pending the outcome of the charges in Indiana County.

On September 7 2012, Melius pled guilty to retail theft in Indiana County.

On November 21, 2012, the Court of Common Pleas of Indiana County

sentenced Melius to six months to two years less a day of imprisonment. On

January 3, 2013, after receiving his release from prison in Indiana County,

the trial court sentenced Melius to six months of incarceration at the

Cambria County Prison for violating his parole with no credit for time served.

      While incarcerated at the Cambria County Prison, the Madison House



application for inpatient drug treatment. Melius requested permission from

the trial court to attend the drug rehabilitation program at the Madison



furlough from the Cambria County Prison to attend the drug rehabilitation

program    with the condition that if Melius failed to complete the program,

he was to return to the Cambria County Prison. On April 26, 2013, Melius

received transportation from his sister to the Madison House. On June 19,

2013, Melius failed a drug screen for marijuana and the Madison House



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expelled him from its drug rehabilitation program. Melius did not return to

the Cambria County Prison and as a result, the trial court issued a bench

warrant for his arrest. On August 3, 2013, police apprehended Melius. On

August 19, 2013, the trial court resentenced Melius to 12 months of

incarceration on the basis that his furlough was a county intermediate

punishment sentence and that by violating the terms of his furlough, the

trial court was entitled to revoke his county intermediate punishment

sentence and resentence him.

     On August 30, 2013, Melius filed a motion for post-sentence relief

nunc pro tunc arguing that his furlough was not a county intermediate

punishment sentence and that the trial court should have recommitted him

to serve the remaining balance of his six-month sentence. On September

12, 2013, the trial court held a hearing on the motion and following that

hearing, denied the motion. On September 27, 2013, Melius filed a notice of

appeal. On October 1, 2013, the trial court ordered Melius to file a concise

statement of matters complained of on appeal pursuant to Rule 1925(b) of

the Pennsylvania Rules of Appellate Procedure. On October 3, 2013, Melius

filed a timely Rule 1925(b) statement. On December 18, 2013, Melius filed

with this Court an application for leave to appeal nunc pro tunc because his

post-sentence motion to modify sentence did not toll the 30-day appeal

period pursuant to Rule 708(E) of the Pennsylvania Rules of Criminal




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Procedure, rendering his notice of appeal untimely. On March 20, 2014, this

Court granted Melius application for leave to appeal nunc pro tunc.

      On appeal, Melius raises the following issues for our review:

             I.    The lower court erred in resentencing a parolee
                   who was furloughed and failed to successfully
                   complete inpatient drug treatment.

             II.   A parolee cannot be denied credit for periods
                   of incarceration previously served simply
                   because the parolee absconds from a furlough.



      Both Melius and the Commonwealth agree that the first issue that he

raises on appeal concerns the legality of his sentence.            See id. at 3;



                               de novo and our scope of review is plenary.

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super. 2008)

(citation   omitted).   This    issue   also   raises   a   question   of   statutory

interpretation, which is likewise a question of law, triggering the same scope

and standard of review.    Commonwealth v. Van Aulen, 952 A.2d 1183,

1184 (Pa. Super. 2008).

      The trial court identified section 9813 of the County Intermediate

Punishment Act as the statutory provision authorizing furloughs for drug

rehabilitation. Trial Court Opinion, 11/21/13, at 4. In its 1925(a) opinion,

the trial court held that where a defendant receives a furlough to attend




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                                                                            Id.

at 4-5 (citation omitted). As a result, the trial court found that it would be



intermediate punishment sentence.       Id. at 5-10.    Finding the statutory

language addressing the revocation of a county intermediate punishment

sentence to be similar to the statutory language addressing the revocation of

probation, the trial court resentenced Melius as if it were revoking his

probation. Id.

     Conversely, Melius argues that the trial court erred in treating his

furlough as a county intermediate punishment and the violation of his

furlough as the revocation of a county intermediate punishment sentence.

                  -14. Melius claims that prior to his furlough, the trial court

sentenced him as a parole violator and then granted his request for a

furlough to attend drug rehabilitation. Id. Melius asserts that the furlough

was not a new sentence of county intermediate punishment and as a result,

the trial court should not have treated his violation of furlough as the

revocation of a county intermediate punishment sentence, and thus the

revocation of probation. Id.

     In regards to the legality of a sentence, our Court has held:


           essentially a claim that the trial court did not have
           jurisdiction to impose the sentence that it handed
           down. ... A trial court ordinarily has jurisdiction to
           impose any sentence which is within the range of



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           punishments which the legislature has authorized for


Commonwealth v. Cappellini, 690 A.2d 1220, 1226 (Pa. Super. 1997)

(quoting Commonwealth v. Catanch, 581 A.2d 226, 228 (Pa. Super.

1990)). Section 9721(a) of the Sentencing Code provides trial courts with

seven alternative forms of criminal sentences:

           (a) General rule.--In determining the sentence to
           be imposed the court shall, except as provided in
           subsection (a.1), consider and select one or more of
           the following alternatives, and may impose them
           consecutively or concurrently:

                 (1) An order of probation.

                 (2) A determination of guilt without further
                 penalty.

                 (3) Partial confinement.

                 (4) Total confinement.

                 (5) A fine.

                 (6) County intermediate punishment.

                 (7) State intermediate punishment.

42 Pa.C.S.A. § 9721(a).

     This Court has stated that the intent of the legislature in adopting

county intermediate punishment programs was to give trial courts another



respect to sentencing severity; to provide a more appropriate form of

punishment/treatment for certain types of nonviolent offenders; to make the



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offender more accountable to the community; and to help reduce the county

                            Commonwealth v. Poncala, 915 A.2d 97, 101

(Pa. Super. 2006) (citation omitted). Our Court has held that the revocation

of a county intermediate punishment sentence is equivalent to the

revocation of probation:

           An intermediate punishment sentence imposed
           pursuant to 42 Pa.C.S. § 9763, Sentence of
           Intermediate Punishment, may be revoked where
           the specific conditions of the sentence have been

           alternatives available to the court shall be the same
           as the alternatives available at the time of initial
                          2 Pa.C.S. § 9773, Modification or
           revocation      of     intermediate      punishment
           sentence, (b) Revocation. This rule of re-
           sentencing is analogous to that set forth for re-

           revocation of probation a sentencing court possesses
           the same sentencing alternatives that it had at the
                                      Commonwealth v. Byrd,
           663 A.2d 229, 231 (Pa. Super. 1995), citing 42
           Pa.C.S. § 9771, Modification or revocation of
           order of probation, (b) Revocation. Moreover,
           revocation of probation occurs, as does revocation of
           an intermediate punishment sentence, where it has
           been found the defendant has violated the terms of
           his sentence.

Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super. 1998) (footnote

omitted; emphasis supplied).



                                  Commonwealth v. Kalichak, 943 A.2d

285, 290 (Pa. Super. 2008) (citing Commonwealth v. Mitchell, 632 A.2d




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                                                   nly option for a court that

decides to revoke parole is to recommit the defendant to serve the already-

imposed, original sentence.    At some point thereafter, the defendant may

                     Id. (internal citations and footnote omitted); see also

Commonwealth v. Galletta, 864 A.2d 532, 538 (Pa. Super. 2004) (finding

that in a violation of parole, the court is not free to impose a new sentence);

Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999) (holding

                                                 sentencing option available is



      Furthermore, section 9813(a) of the County Intermediate Punishment



furlough, states in pertinent part as follows:

            (a) Generally.--Notwithstanding any provision of
            law, if any offender has been sentenced to undergo
            imprisonment in a county jail for a term of less than
            five years, the court, at the time of sentence or at
            any time thereafter upon application made in
            accordance with this section, may enter an order
            making the offender eligible to leave the jail during
            necessary and reasonable hours for the purpose of
            working at his employment, conducting his own
            business    or   other   self-employed   occupation,
            including housekeeping and attending to the needs
            of family, seeking employment, attending an
            educational institution, securing medical treatment
            or for other lawful purposes as the court shall
            consider necessary and appropriate.

                                 *     *     *




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             (c) Revocation or modification of previously
             entered order.--The county jail officials may detain
             and recommit the offender or preclude the offender
             from leaving the county jail if the offender violates
             the conditions set by the jail officials or the court, or
             if allowing the offender to leave the county jail poses
             a risk to community safety or the orderly and safe
             management of the jail. The jail officials shall notify
             the court of such action. In addition, the order of
             court may be revoked or modified at any time with
             notice to the prisoner.

42 Pa.C.S.A. § 9813(a), (c). Our Court has recognized that the legislative

intent of the predecessor statute2

categorical authority to order the temporary furlough of county prisoners

                                                       See Commonwealth v.

Kehoe, 863 A.2d 1202, 1203, 1205 (Pa. Super. 2004) (en banc).

2
    The predecessor statute to section 9813 states:

             Whenever any person has been sentenced to
             undergo imprisonment in a county jail or workhouse,
             hereafter referred to as a jail, for a term of less than
             five years the court, at the time of sentence or at
             any time thereafter upon application made therefore,
             may by order direct the sheriff, prison keeper, jail
             keeper, warden or other administrative head of a jail
             to permit the prisoner to leave the jail during
             necessary and reasonable hours for the purpose of
             working at his employment, conducting his own
             business    or   other    self-employed     occupation,
             including housekeeping and attending to the needs
             of family, seeking employment, attendance at an
             educational institution, securing medical treatment
             or such other lawful purposes as the court shall
             consider necessary and appropriate. The order of the
             court may be rescinded or modified at any time with
             or without notice to the prisoner.

61 P.S. § 2141 (repealed Nov. 24, 2008).


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      Based on the foregoing statutory authority and case law, we conclude

that the trial court erred in determining that when

for drug rehabilitation, it imposed a sentence of county intermediate

punishment.    As a result, we also conclude that the trial court erred by



punishment sentence, and consequently, the revocation of probation.

      We first note that the six-month sentence imposed by the trial court

on January 3, 2013 was not a county intermediate punishment sentence.

This sentence was not a new sentence because it stemm

conviction for committing retail theft in Indiana County shortly following his

parole after serving three months of his three- to 23-month probation

violation sentence in Cambria County. Because this six-month sentence was

the result of th

resentence him. See Kalichak, 943 A.2d at 290. The only option available

to the trial court was to recommit him to serve the already-imposed original

sentence.     See id.     Thus, by sentencing Melius to six months of

incarceration for violating his parole, the trial court was recommitting him to

serve six months of the 20 months remaining from his original three- to 23-

month sentence.

                                                                          that

six-month period was also not a county intermediate punishment. The trial




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J-S53008-14


treatment[,] he has effectively been given a sentence of intermediate



an incorrect interpretation of section 9813(a).     See Trial Court Opinion,

11/21/13, at 4. In regards to statutory interpretation, our Court has long

recognized the following:

            Our interpretation is guided by the polestar principles
            set forth in the Statutory Construction Act, 1
            Pa.C.S.A. § 1501 et seq.[,] which has as its

            interpretation and construction of statutes is to
            ascertain and effectuate the intention of the General



            unambiguous, they will be given effect consistent
                                                             nly
            in instances where the words of a statute are not
            explicit, or they are ambiguous, is there need to
            resort to consideration of the factors in aid of
            construction enumerated in 1 Pa.C.S.A. § 1921(c).

Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011) (internal citations



enactment, but it is in no sense conclusive, particularly when there is no

                                                             Commonwealth

v. Reefer, 816 A.2d 1136, 1143 n.10 (Pa. Super. 2003) (citation omitted).

      The fact that section 9813 appears in the chapter addressing County

Intermediate Punishment is immaterial.        No language in section 9813

suggests that the grant of a furlough from time currently being served by a

defendant after a trial court has recommitted that defendant for violating his



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or her parole constitutes a county intermediate punishment sentence. See

generally 42 Pa.C.S.A. § 9813.        Likewise, no language in section 9813

suggests that a trial court may treat the violation of a condition of that

furlough as a violation of probation permitting the imposition of a new

sentence.    See id.   To the contrary, section 9813(a) provides that upon

proper application, a trial court may permit a prisoner serving a sentence in

a county jail a release from jail for any purposes the trial court considers

necessary and appropriate.     42 Pa.C.S.A. § 9813(a).     Additionally, section

9813(c) states that if a prisoner violates a condition of the furlough, the trial

court may recommit the prisoner to the county jail and revoke or modify the

furlough order. 42 Pa.C.S.A. § 9813(c).



violation as the revocation of a county intermediate punishment sentence,

and thus the revocation of probation.         Melius was serving a six-month

sentence for violating his parole when the trial court granted Melius a

furlough to attend drug rehabilitation.       Melius violated the terms of his

furlough by not returning to the Cambria County Prison upon his expulsion

from the Madison House. Per section 9813(c), the appropriate remedy for

violating a condition of a furlough is to recommit the offender to the county

jail.   See 42 Pa.C.S.A. § 9813(c).    Therefore, the trial court should have

recommitted Melius to serve the remaining portion of his six-month parole

violation sentence. See id.



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      Based on the foregoing, we conclude that the 12-month sentence that

the trial court imposed on Melius on August 19, 2013 for violating his

furlough was an illegal sentence. The six-month sentence that the trial court

imposed on January 3, 2013 was not a new sentence; rather, it was the

result of the trial court recommitting Melius to serve a portion of his original

three- to 23-month sentence.      Because Melius was serving a county jail

sentence, the trial court was permitted to grant him a furlough to attend



however, the trial court did not impose a county intermediate punishment



violation as the revocation of a county intermediate punishment sentence,

and consequently, the revocation of probation.       The appropriate recourse

under these circumstances was for the trial court to revoke the furlough and

to recommit Melius to serve the remaining time on his sentence.

      Because we find that the trial court imposed an illegal sentence,



s

August 19, 2013.

      Judgment of sentence vacated. Jurisdiction relinquished.



Judgment Entered.




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J-S53008-14


Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2014




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