Commonwealth v. Dennis

J-A01001-17

2017 PA Super 155

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

ROBERT LOUIS DENNIS

Appellant No. 1935 WDA 2015

Appeal from the Judgment of Sentence November 10, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008413-2015

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

OPINION BY BOWES, J.: FILED MAY 22, 2017

Appellant appeals from the judgment of sentence of ninety days house

arrest and eighteen months probation following his guilty plea for driving

under the influence (“DUI”) and driving without a license. He raises

statutory and constitutional challenges to the trial court’s pre-sentencing

revocation of bond for purposes of completing an alcohol assessment. We

condemn the imprisonment of Appellant for his inability to pay for that

assessment upfront. We are, however, constrained to affirm judgment of

sentence, as Appellant received time credit for this period of incarceration.

On April 30, 2015, Appellant was arrested for operating a motor

vehicle while under the influence of alcohol. His breath test revealed a blood

alcohol content of .268%. Appellant, who had a prior DUI conviction, was

* Retired Senior Judge assigned to the Superior Court.
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charged with two counts of DUI and the summary offense of driving without

a license.

On September 23, 2015, Appellant pleaded guilty to one count of DUI,

graded as a misdemeanor of the first degree, and the summary offense.

Sentencing was scheduled for October 27, 2015. In the interim, Appellant

was ordered to undergo a Court Reporting Network (“CRN”) assessment plus

a separate drug and alcohol assessment.

Appellant appeared for sentencing in compliance with the CRN

requirement. However, he informed the court that he was unable to

complete the second assessment since he could not afford a $100 payment

required upfront by the assessor. Appellant repeated his willingness to

complete the requirement and suggested that the court either waive the

assessment or order the provider to complete the assessment without

payment of the fee, with repayment to follow as part of court costs.

The trial court refused to waive the requirement and stated that the

assessment could not be added to court costs. The judge then informed

Appellant that the fee must be collected upfront, due to “a pretty strict

policy, I think uniform throughout the criminal division.” N.T. 10/27/15, at

4. The judge then stated, “Why doesn’t [Appellant] come up with a hundred

bucks in a week or so, give him a break instead of sending him to jail. I

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mean that’s the alternative.” Id. at 4-5.1 Appellant stated, “I don’t have

[the money], sir, I just rather do my time and get it over with, sir.” Id. at

5. The trial court thereafter revoked Appellant’s bond and remanded him to

the Allegheny County Jail, with sentencing to follow “[a]s soon as that

assessment is completed[.]”. Id. at 6. The assessment was completed on

November 9, 2015. Appellant remained incarcerated from October 27,

2015, through November 10, 2015.

On November 9, 2015, Appellant filed a motion asking the trial court

to certify the order for interlocutory appeal. On November 10, 2015, the

trial court denied the motion and imposed the aforementioned sentence,

with time credit for the fifteen-day period of incarceration.

Appellant filed a timely notice of appeal, and complied with the order

to file a concise statement of matters complained of on appeal. The trial

court filed an opinion in response and the matter is ready for our review.

Appellant raises the following issue:

When [Appellant] entered a guilty plea to DUI but was financially
unable to pay the preliminary fee for taking the mandatory, pre-
sentence drug and alcohol assessment pursuant to 75 Pa.C.S. §
3814, whether the trial court’s decision to incarcerate him so
that the assessment could be performed in the Allegheny County
Jail violated 75 Pa.C.S. § 3815(f)(2), as well as [Appellant]’s

____________________________________________

1
The parties indicated that the assessments completed at the Allegheny
County Jail do not require upfront payment, and the fee is added to court
costs.

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federal and state constitutional rights to equal protection and
due process of law?

Appellant’s brief at 5.

Initially, we must address whether this appeal should be dismissed as

moot, as urged by the Commonwealth, since Appellant’s sole claim on

appeal challenges the fifteen days he remained incarcerated for purposes of

completing the assessment. Since Appellant was released long ago and

received credit for that time as applied to his house arrest sentence, the

Commonwealth maintains that there is no relief to give.

“As a general rule, an actual case or controversy must exist at all

stages of the judicial process, or a case will be dismissed as moot.” In re

D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (quoting In re Duran, 769 A.2d

497 (Pa.Super. 2001)). However, this Court will decide questions that have

otherwise been rendered moot when, inter alia, “the question presented is

capable of repetition and apt to elude appellate review.” Commonwealth

v. Nava, 966 A.2d 630, 633 (Pa.Super. 2009) (citation omitted). Since

Appellant maintains that Allegheny County requires the $100 fee in all cases,

an assertion that is corroborated by the trial court, we find that this issue is

likely to reoccur and apt to elude our review. Thus, we decline to dismiss

the appeal as moot.

We now turn to Appellant’s claim, that his fifteen-day incarceration

violated the statutory scheme and the United States Constitution. At issue is

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the propriety of the trial court’s application of statutory provisions governing

the administration of drug and alcohol assessments prior to imposing a DUI

sentence. Matters of statutory interpretation present questions of law, and

our standard of review is de novo. Commonwealth v. Johnson, 125 A.3d

822 (Pa.Super. 2015). We conclude that the trial court lacked statutory

authority to commit Appellant to jail for nonpayment and therefore do not

reach Appellant’s constitutional claims. See Commonwealth v. Ludwig,

874 A.2d 623, 628 (Pa. 2005) (“[C]ourts have the duty to avoid

constitutional difficulties, if possible, by construing statutes in a

constitutional manner.”).

Since this claim concerns the interplay of several statutes, we briefly

review the role of an alcohol and/or drug assessment as a component of a

DUI sentence. Sections 3814 and 3816 of the Vehicle Code mandate

assessments in the following circumstances. First, § 3816, the

aforementioned CRN provision, requires an assessment for every individual

convicted of a DUI:

(a) Evaluation using Court Reporting Network.--In addition
to any other requirements of the court, every person convicted
of a violation of section 3802 (relating to driving under influence
of alcohol or controlled substance) . . . shall, prior to sentencing
. . . be evaluated using Court Reporting Network instruments
issued by the department and any other additional evaluation
techniques deemed appropriate by the court to determine the
extent of the person's involvement with alcohol or controlled
substances and to assist the court in determining what
sentenc[e] . . . would benefit the person or the public.

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75 Pa.C.S. § 3816. Wholly apart from this CRN evaluation, § 3814

mandates a full assessment in the following circumstances:

(2) The defendant shall be subject to a full assessment for
alcohol and drug addiction if any of the following subparagraphs
apply:

(i) The defendant, within ten years prior to the
offense for which sentence is being imposed, has
been sentenced for an offense under:

(A) section 3802;
(B) former section 3731; or
(C) an equivalent offense in another
jurisdiction.

(ii) Either:

(A) the evaluation under [CRN] indicates
there is a need for counseling or
treatment; or

(B) the defendant's blood alcohol content
at the time of the offense was at least
.16%.
....

75 Pa.C.S. § 3814. Appellant was subject to a full assessment due to his

blood alcohol content exceeding .16% as well as his prior conviction. In

Commonwealth v. Taylor, 104 A.3d 479 (Pa. 2014), our Supreme Court

held that these assessments are not discretionary and the county is

obligated to ensure the availability of such assessments.

The trial court is required to utilize these assessments in fashioning a

sentence. First, the penalties provisions set forth at 75 Pa.C.S. § 3804

specify that any individual convicted of a DUI offense must “comply with all

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drug and alcohol treatment requirements imposed under sections 3814 and

3815.” See 75 Pa.C.S. § 3804(a)-(c). Additionally, a separate provision,

entitled “Mandatory Sentencing” specifically states that, where a term of

imprisonment is imposed, the offender must conform to the assessment

recommendations. 75 Pa.C.S. § 3815. Sentencing cannot occur until the

assessments are completed. See Commonwealth v. Taylor, 104 A.3d

479, 491 (Pa. 2014) (describing the assessment procedure as demonstrating

legislative intent that the sentencing court utilize the assessment as a

sentencing aid in creating a sentence for the benefit of the offender and the

public.).

The sole issue on appeal is whether the trial court violated this scheme

when it revoked Appellant’s bond and remanded him to county jail due to

the failure to pay the $100 charge, which Appellant attributed to his

indigency.

Preliminarily, we address the trial court’s position, adopted by the

Commonwealth herein, that Appellant waived any claim respecting this

action as he requested to be incarcerated. We quote the pertinent portion of

the October 27, 2015 transcript:

[APPELLANT’S COUNSEL]: Your Honor, my concern is this. Mr.
Dennis is willing to do the assessment. It’s a financial matter.
He doesn’t have the one hundred dollars that’s required that
day. I understand the alternative to get the assessment would
be to go to jail but I also don’t think that it’s fair or his fault he
needs to sit in jail just to have the assessment. I would ask the
court to consider either waiving the assessment –

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THE COURT: I can’t waive it.

[APPELLANT’S COUNSEL]: I understand that. But the purpose
of the statute and case law that supports it was so that the
assessment can be done so that the sentencing judge would
have an understanding of what the background is that caused
that incident. This is already a negotiated plea, we don’t need –
we are not using the assessment to sentence him. So he is
already going to accept the offer that was recommended by the
Commonwealth, or alternatively if he can do the assessment
and have a court order to have the fee for it to be
assessed – to put to his court costs so he doesn’t have to
pay up front.

The reason he is unable to pay right now is he is just not
working. He plans on getting employment and at that time he
will be able to pay.

....

THE COURT: I don’t think the assessment can be added
into the court costs.

[APPELLANT’S COUNSEL]: If it’s done in jail then that fee is
tacked on at the end of the court costs and he doesn’t have to
pay up front.

THE COURT: We are not going to get into that policy because
the flood gates would open, nobody would have money to pay
the assessment fee or people would take it – see it that way
because it’s very hard often times to collect court costs.

But the assessment has to be done up front and has to be paid
up front. That’s been a pretty strict policy, I think uniform
throughout the criminal division.

....

Why doesn’t he come up with a hundred bucks in a week or so,
give him a break instead of sending him to jail. I mean that’s
the alternative.

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[APPELLANT]: I would rather go ahead and do my time.

[APPELLANT’S COUNSEL]: I mean he’s not going to be able to
come up with the money. Instead of wasting the court’s time he
will go to jail and have them do the assessment there.

....

THE COURT: You want to go to jail for a week over a hundred
bucks?

[APPELLANT]: I don’t have it, sir, I just rather do my time and
get it over with, sir.

N.T., 10/27/15, at 2-5 (emphases added). The trial court characterizes

Appellant’s interjection as waiving any claim respecting the period of

imprisonment. We disagree. The emphasized portions show that the trial

court rejected any alternative other than Appellant paying the fee upfront

within one week.

We now address Appellant’s statutory argument. He highlights that 75

Pa.C.S. § 3815, the aforementioned Mandatory Sentencing provision,

required the trial court to impose assessment fees consistent with an

offender’s ability to pay. The statute states, in pertinent part:

(c) Treatment.--
(1) Treatment must conform to assessment
recommendations made under section 3814.
....

(e) Follow-up.--After an offender has completed the treatment
program under subsection (c), the parole officer shall take
reasonable steps to ensure that the offender does not abuse
alcohol, use illegal controlled substances or abuse prescription
drugs, over-the-counter drugs or any other such substances.

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These reasonable steps include requiring chemical testing and
periodic reassessment of the offender by the treatment program.

(f) Fees.—

(1) Except as set forth in paragraph (2), the parole
authority shall impose upon an offender subject to
this section reasonable fees to cover the cost of any
of the following:

(i) Chemical testing of the offender
required under this section.

(ii) An assessment of the offender
required under this section.

(iii) Drug or alcohol treatment provided
in accordance with the assessment.

(2) If the parole authority finds the offender to be
unable to pay the full amount of the fees required by
paragraph (1) and section 1541(d) (relating to
period of disqualification, revocation or suspension of
operating privilege), it shall require the offender to
pay as much of the fee as is consistent with the
offender's ability to pay and shall direct the assigned
parole officer to establish a reasonable payment
schedule for the offender to pay as much of the
remaining fees as is consistent with the offender's
ability to pay.
....

75 Pa.C.S. § 3815.

We find that this statute is not directly on point, insofar as it speaks to

the trial court acting in its parole capacity and therefore applies post-

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sentencing.2 Moreover, § 3815(f) immediately follows subsection (e), which

discusses follow-up treatment conducted after the offender has completed

the required treatment program. Additionally, § 3815(f)(1) references

payment for chemical testing and assessments required under this section,

meaning § 3815, which includes fees imposed as part of any follow-up

treatments. The pre-trial assessment at issue herein is not required under

this section, but rather § 3814. Thus, in context, the repayment of fees

under § 3815(f) is directed only towards costs that are incurred after

sentencing. Accordingly, the statute is inapplicable with respect to payment

of fees incurred prior to sentencing.

Nevertheless, we find that Appellant’s argument is forceful in this

regard: the statute clearly contemplates that the payment of assessment

fees, while borne by the defendant, must be imposed in a manner consistent

with the offender’s ability to pay. There is little logical reason not to extend

the same protections to a defendant who has yet to be sentenced, especially

when, as Appellant highlights, serious constitutional problems arise when a

criminal defendant is incarcerated due to indigency.3

____________________________________________

2
The Commonwealth similarly observes that this statute “seemingly does
not contemplate offenders paying pre-sentencing fees upfront, like that at
issue herein.” Commonwealth’s brief at 12.
3
Cases discussing indigency often arise in the context of access to some
feature of the criminal justice system. Thus, in Roberts v. LaVallee, 389
(Footnote Continued Next Page)

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Instantly, neither of the parties raises the issue of whether a court

may, prior to sentencing, require the upfront payment of costs as effectively

occurred in this case.4 Hence, we accept the authority of the court to do so.

That said, incarceration for the nonpayment of costs is explicitly permitted

only upon a finding that the defendant is financially able to pay. Rule of

Criminal Procedure 706 specifically speaks to this question:

(A) A court shall not commit the defendant to prison for
failure to pay a fine or costs unless it appears after
hearing that the defendant is financially able to pay the
fine or costs.

(B) When the court determines, after hearing, that the
defendant is without the financial means to pay the fine or costs
immediately or in a single remittance, the court may provide for
payment of the fines or costs in such installments and over such
period of time as it deems to be just and practicable, taking into
account the financial resources of the defendant and the nature
_______________________
(Footnote Continued)

U.S. 40 (1967), the United States Supreme Court held that an indigent is
entitled to a free transcript of his preliminary hearing for use at trial. “Our
decisions for more than a decade now have made clear that differences in
access to the instruments needed to vindicate legal rights, when based upon
the financial situation of the defendant, are repugnant to the Constitution.”
Id. at 42.

Herein, Appellant was denied access to a fundamental aspect of the criminal
justice system, his right to be sentenced. Assuming that a defendant may
lawfully be forced to pay costs in advance, we cannot fathom why an
indigent should be imprisoned for the “privilege” of receiving a criminal
sentence.
4
Presumably, the General Assembly included the provisions set forth in §
3815(f) to signal its intent that an offender must pay for ongoing treatment
costs that continue to accrue post-sentencing, in addition to normal costs of
prosecution.

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of the burden its payments will impose, as set forth in paragraph
(D) below.

(C) The court, in determining the amount and method of
payment of a fine or costs shall, insofar as is just and
practicable, consider the burden upon the defendant by reason
of the defendant's financial means, including the defendant's
ability to make restitution or reparations.

(D) In cases in which the court has ordered payment of a fine or
costs in installments, the defendant may request a rehearing on
the payment schedule when the defendant is in default of a
payment or when the defendant advises the court that such
default is imminent. At such hearing, the burden shall be on the
defendant to prove that his or her financial condition has
deteriorated to the extent that the defendant is without the
means to meet the payment schedule. Thereupon the court may
extend or accelerate the payment schedule or leave it unaltered,
as the court finds to be just and practicable under the
circumstances of record. When there has been default and the
court finds the defendant is not indigent, the court may impose
imprisonment as provided by law for nonpayment.

Pa.R.Crim.P. 706 (emphasis added). We note that this Rule is organized

under the subdivision “Sentencing Procedures.” Thus, it too does not

directly control the question before us, as it applies only in the sentencing

context.

However, we reiterate that it would be highly illogical to hold that a

court’s authority to imprison a defendant for nonpayment after sentencing

is conditioned upon a specific inquiry into the defendant’s ability to pay, yet

simultaneously hold that a court may force a defendant to pay costs before

sentencing without affording the same protections. Indeed, it would appear

that the Rule speaks only to actions occurring after sentencing due to the

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fact that costs associated with prosecution are traditionally imposed at or

after sentencing. The general sentencing statute, codified at 42 Pa.C.S. §

9721, provides that “the court shall order the defendant to pay costs.” 42

Pa.C.S. § 9721(c.1). See also 16 P.S. § 1403 (“In any case where a

defendant is convicted and sentenced to pay the costs of prosecution and

trial, the expenses of the district attorney in connection with such

prosecution shall be considered a part of the costs of the case and be paid

by the defendant.”). Therefore, we agree that the trial court committed an

error of law in incarcerating Appellant for his inability to pay the assessment

costs.5

The remaining question is what relief should be granted due to this

error of law. Appellant asks this Court to “afford whatever relief law, justice,

and fundamental fairness required under this unique set of circumstances.”

Appellant’s brief at 30. We would be inclined to grant some type of remedy

had this issue been presented to this Court while he remained in jail. Since

____________________________________________

5
The trial court’s opinion states that it did not find Appellant’s assertion of
his inability to pay the $100 credible. However, we cannot accept that
conclusion on this record. The trial court’s only concession to the asserted
inability to pay was the option “come up with a hundred bucks in a week or
so, give him a break instead of sending him to jail.” N.T. 10/27/15, at 4.
Therefore, the court did not follow the procedures set forth by Pa.R.Crim.P.
706.

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Appellant received credit for time served, we are constrained to agree with

the Commonwealth that no relief can be granted.

We disagree with the Commonwealth, however, that we should not

address the issue because courts are not to offer purely advisory opinions.

Herein, the trial court stated in its opinion that “Allegheny County has

contracts with three private providers to complete the drug and alcohol

assessment . . . all of the providers require payment in advance[.]” Trial

Court Opinion, 7/11/16, at 2. We cannot ignore the fact that this issue may

reoccur.

Since we find that the court committed clear legal error, we wish to

make plain that which is implicit in our analysis: To the extent that a trial

court may require payment of costs following a guilty plea but prior to

sentencing, the court shall henceforth comply with Pa.R.Crim.P. 706 before

incarcerating a defendant due to an asserted inability to pay. While Rule

706 by its language applies only in the sentencing context, it is repugnant to

the administration of criminal justice to hold that its protections would not

extend to the defendant who has pleaded guilty but has yet to be sentenced.

“This Court has long been sensitive to the treatment of indigents in our

criminal justice system. Over a quarter-century ago, Justice Black declared

that ‘there can be no equal justice where the kind of trial a man gets

depends on the amount of money he has.’” Bearden v. Georgia, 461 U.S.

660, 664 (1983) (quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956)). So

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too can there can be no equal justice when a defendant’s right to be

sentenced turns on the amount of money he has.

Finally, we address whether Appellant’s sentence is illegal. The trial

court claims that 75 Pa.C.S. § 3804(d) required the court to impose a

maximum sentence of five years, since the assessments indicated Appellant

required additional treatment. The Commonwealth agrees that this sentence

is illegal.

“The matter of whether the trial court possesses the authority to

impose a particular sentence is a matter of legality.” Commonwealth v.

Pinko, 811 A.2d 576, 577 (Pa.Super. 2002) (citation omitted).

Furthermore, “It is well settled that this Court may address the legality of a

sentence sua sponte.” Commonwealth v. McCamey, 154 A.3d 352, 357

(Pa.Super. 2017) (citing Commonwealth v. Infante, 63 A.3d 358, 363

(Pa. Super. 2013)). We therefore address the claim.

(d) Extended supervision of court.--If a person is sentenced
pursuant to this chapter and, after the initial assessment
required by section 3814(1), the person is determined to be
in need of additional treatment pursuant to section 3814(2),
the judge shall impose a minimum sentence as provided
by law and a maximum sentence equal to the statutorily
available maximum. A sentence to the statutorily available
maximum imposed pursuant to this subsection may, in the
discretion of the sentencing court, be ordered to be served in a
county prison, notwithstanding the provisions of 42 Pa.C.S. §
9762 (relating to sentencing proceeding; place of confinement).

75 Pa.C.S. § 3804 (emphases added).

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We do not find that this statute applies; accordingly, the trial court

was not obligated to impose the statutory maximum. Read in context, §

3804(d) applies only when the trial court elects to impose a sentence of total

confinement. In such cases, the trial court is required to impose a minimum

sentence and maximum sentence.

(a) General rule.--In imposing a sentence of total confinement
the court shall at the time of sentencing specify any maximum
period up to the limit authorized by law and whether the
sentence shall commence in a correctional or other appropriate
institution.

(b) Minimum sentence.—

(1) The court shall impose a minimum sentence of
confinement which shall not exceed one-half of the
maximum sentence imposed.
...

42 Pa.C.S. 9756. See Commonwealth v. Popielarcheck, 151 A.3d 1088,

1093 (Pa.Super. 2016) (the mandatory maximum sentence in § 3804(d)

applies only where a defendant is sentenced pursuant to that chapter;

sentencing court therefore not required to impose statutory maximum period

of house arrest).

Thus, § 3804(d) operates to remove a court’s discretion in selecting a

maximum sentence when total confinement is imposed. Therefore, the

statute applies only in cases where the offender is sentenced to total

confinement. As our Supreme Court stated in Taylor, supra: “The purpose

of imposing the statutorily available maximum sentence against such

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offenders is to extend the sentencing court's parole authority pursuant

to Section 3815 to require the offender to complete needed treatment.” Id.

at 492 (emphasis added).

In contrast, a term of county intermediate punishment does not

involve parole, nor does it include a minimum and maximum sentence.

When imposing county intermediate punishment, the trial court must impose

a sentence of definite length.

(a) General rule.--In imposing a sentence of county intermediate
punishment, the court shall specify at the time of sentencing the
length of the term for which the defendant is to be in a county
intermediate punishment program established under Chapter 98
(relating to county intermediate punishment) or a combination of
county intermediate punishment programs. The term may not exceed
the maximum term for which the defendant could be confined and the
program to which the defendant is sentenced. The court may order a
defendant to serve a portion of the sentence under section 9755
(relating to sentence of partial confinement) or 9756 (relating to
sentence of total confinement) and to serve a portion in a county
intermediate punishment program or a combination of county
intermediate punishment programs.

42 Pa.C.S. § 9763. In Pinko, supra, the appellant received a flat sentence

of sixty months intermediate punishment. Id. at 577. He claimed that the

sentence was illegal, since the court failed to impose a minimum. We

disagreed, applying § 9763:

Unlike the provisions governing partial confinement, the
imposition of a minimum and maximum term is not directed with
regard to an intermediate punishment sentence. . . .

The court in this case, which directed Appellant to serve 60
months of intermediate punishment, complied with the

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provisions governing the imposition of an intermediate
punishment sentence.

Id. at 578.

Thus, a sentence of intermediate punishment neither permits nor

requires a court to impose an indefinite range. Indeed, the trial court

recognizes that it could not have imposed an indeterminate sentence of

house arrest, requesting that we vacate sentence because “[Appellant]

should have been sentenced to a period of incarceration of ninety (90)

days to five (5) years[.]” Trial Court Opinion, 6/27/16, at 3 (emphasis

added). Having opted to sentence Appellant to a term of house arrest, the

trial court cannot now impose a period of incarceration. Therefore, we find

that the instant sentence was legal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/22/2017

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