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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTHONY GERALD MAGRETTO, : No. 1780 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 6, 2016,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0004485-2014
BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 05, 2018
Anthony Gerald Magretto appeals from the judgment of sentence of
May 6, 2016, following his conviction of driving under the influence --
controlled substance. On appeal, appellant claims that he was entitled to
19 days’ credit against his sentence for time he spent in inpatient drug
treatment. After careful review, we determine that the trial court did not
abuse its discretion in denying appellant credit time; however, we are
compelled to vacate the judgment of sentence and remand for resentencing
in light of Birchfield v. North Dakota, U.S. , 136 S.Ct. 2160
(2016).
On April 9, 2015, Appellant knowingly,
intelligently and voluntarily pled guilty to driving
under the influence (“DUI”) of a controlled substance
of a refusal nature and driving under suspended
license (“DUS”). This Court granted Appellant’s
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request to delay sentencing so that he could
complete court-ordered assessment evaluations to
assist the court at sentencing. Ten months passed
without a word from the Appellant. Appellant failed
to provide any evidence indicating that the
court-ordered assessments were completed. At the
sentencing hearing on February 10, 2016, this Court
granted another continuance, allowing Appellant the
opportunity to register with the Adult Probation
Department for a House Arrest Suitability
Assessment. Three months passed and again,
Appellant failed to comply with that court-ordered
directive.
At his sentencing on May 6, 2016, Appellant
was sentenced to undergo imprisonment for not less
than five months nor more than five years in the
Montgomery County Correctional Facility and to pay
a [fine of] $1,500, as well as court costs.
Furthermore, Appellant received credit for jail time
already served from July 9, 2014 to August 1, 2014
for the DUI sentence. Finally, Appellant was
sentenced to pay a $200 fine and court costs for the
DUS conviction. This court, in its discretion,
sentenced Appellant below the sentencing guidelines
of six to sixteen months due to the supportive
testimony of Appellant’s grandfather.
Appellant presented minimal evidence
regarding any steps taken to maintain a clean
lifestyle. While Appellant admitted being a heroin
addict for over ten years, he did not present any
evidence regarding rehabilitation efforts such as
Narcotics Anonymous, a sponsor, or completion of
any outpatient treatment. Although Appellant
mentioned spending 19 days at the Keystone Medical
Center Treatment Program, he failed to provide
documentation that he actually completed the
program nor did he request credit for his
participation at the time of sentencing.
On May 13th, 2016, Appellant filed a
post-sentence motion for relief requesting credit for
time spent in the Keystone Medical Center Treatment
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Program, from April 24, 2015 to May 13, 2015. This
Court, in its discretion, having already provided the
appellant numerous opportunities, denied the post
sentence motion on May 19, 2016. This appeal
follows.
Trial court opinion, 7/1/16 at 1-2.
Appellant filed a timely notice of appeal on June 1, 2016. Appellant
has complied with Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a)
opinion. On appeal, appellant argues that the trial court abused its
discretion in refusing to grant him 19 days’ credit time from April 24, 2015
to May 13, 2015, during which he was residing at Keystone Medical Center
(“Keystone”), an inpatient drug treatment facility.
Our standard of review in appeals of
sentencing is well settled:
Sentencing is a matter vested in the
sound discretion of the sentencing judge,
and a sentence will not be disturbed on
appeal absent a manifest abuse of
discretion. In this context, an abuse of
discretion is not shown merely by an
error in judgment. Rather, the appellant
must establish, by reference to the
record, that the sentencing court ignored
or misapplied the law, exercised its
judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.
Commonwealth v. Mann, 957 A.2d 746, 749
(Pa.Super. 2008), quoting Commonwealth v. Ford,
947 A.2d 1251, 1252 (Pa.Super. 2008) (citation
omitted).
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Commonwealth v. Toland, 995 A.2d 1242, 1248 (Pa.Super. 2010),
appeal denied, 29 A.3d 797 (Pa. 2011).
The Sentencing Code provides that a defendant
shall receive credit for all time spent in custody prior
to trial:
§ 9760. Credit for time served
(1) 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.A. § 9760(1). “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.” Commonwealth v.
Fowler, 930 A.2d 586, 595 (Pa.Super. 2007),
appeal denied, 596 Pa. 715, 944 A.2d 756 (2008),
quoting Commonwealth v. Hollawell, 413
Pa.Super. 42, 604 A.2d 723, 725 (1992) (citation
omitted) (emphasis deleted).
The easiest application of [42 Pa.C.S.A.
§ 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 neither
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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.
Id. at 595-596, quoting Commonwealth v. Kyle,
582 Pa. 624, 632-633, 874 A.2d 12, 17 (2005)
(citation omitted). “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.”
Id. at 596, quoting Kyle, 582 Pa. at 634, 874 A.2d
at 18.
Toland, 995 A.2d at 1248-1249. Compare Commonwealth v. Cozzone,
593 A.2d 860 (Pa.Super. 1991) (defendant was entitled to credit for time
spent in residential treatment where he entered the rehabilitation facility as
a condition of bail in order to avoid pre-trial imprisonment), with
Commonwealth v. Conahan, 589 A.2d 1107 (Pa. 1991) (a defendant who
voluntarily commits him/herself to inpatient treatment is not automatically
entitled to time credit as a matter of law; whether to grant the defendant
credit was within the trial court’s discretion).
Looking at these cases together, therefore, it 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
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such commitment is a matter within the sound
discretion of the court. Conahan. See also
Commonwealth v. Mincone, 405 Pa.Super. 599,
592 A.2d 1375 (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 1250-1251.
Thus, in Toland, this court held that the trial court did not abuse its
discretion in denying the defendant time credit, where he voluntarily
checked himself into residential rehabilitative treatment, he was not
restrained and was free to leave treatment at any time, and the trial court
found that these facilities were not custodial and did not rise to the level of
“imprisonment.” In the case sub judice, the trial court found that appellant
voluntarily participated in inpatient treatment at Keystone. (Trial court
opinion, 7/1/16 at 3.) Appellant was not required to participate in a drug
treatment program as a condition of his bail. Furthermore, there was no
evidence presented to the trial court establishing that the restrictions
imposed upon appellant at Keystone rose to the level of “imprisonment.”
(Id.) In fact, appellant did not request credit for the 19 days he spent at
Keystone until after sentencing. (Id. at 2.) At sentencing, counsel for
appellant simply observed, “From that assessment, it was recommended
that he continue with some type of inpatient treatment. He completed
inpatient treatment at Keystone Center’s treatment program from April 24,
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2015, to May 13, 2015. So he understood that he had a problem.” (Notes
of testimony, 5/6/16 at 6-7.) The trial court also observed that appellant
had failed to take advantage of other opportunities including house arrest.
(Id. at 14-15; trial court opinion, 7/1/16 at 4.)
Appellant argues that he did not voluntarily enter treatment because
at the guilty plea hearing, the trial court directed him to undergo a urine
screen on the morning of his sentencing date and warned him that “You
have got your work cut out for you.” (Appellant’s brief at 15-16, quoting
notes of testimony, 4/9/15 at 13-14.) According to appellant, this
constituted an “implied threat” that there would be adverse penal
consequences if appellant did not work on his addiction problem.
(Appellant’s brief at 16-17.) However, unlike the defendant in Cozzone,
who was allowed to admit himself to an alcohol treatment facility in lieu of
being committed to the county jail, appellant was never told he had to
complete an inpatient treatment program as a condition of his bail. The trial
court simply warned him that he would undergo a urinalysis prior to
sentencing and that, as a heroin addict, he had his work cut out for him.
The record supports the trial court’s finding that appellant’s decision to enroll
at Keystone was completely voluntary.
Furthermore, appellant claims that Keystone was a “custodial hospital”
and that he was “restrained of his liberties during the entire time of his
confinement.” (Appellant’s brief at 26.) However, appellant provided no
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evidence in support of this claim. (Trial court opinion, 7/1/16 at 3.) In his
post-sentence motion, appellant merely averred that he sought inpatient
treatment at Keystone from April 24, 2015 to May 13, 2015, and requested
credit for that time against his prison sentence. (Docket #15.) For these
reasons, we determine that the trial court did not abuse its discretion in
denying appellant credit for the 19 days he spent in residential treatment at
Keystone.
We now turn to the legality of appellant’s sentence and Birchfield.
Initially, we note that we can address the legality of appellant’s sentence
sua sponte. Commonwealth v. Giron, 155 A.3d 635, 638 (Pa.Super.
2017) (citation omitted). Appellant pled guilty to DUI as a first-degree
misdemeanor punishable by up to 5 years’ imprisonment. This was
appellant’s second DUI, and he refused chemical testing; therefore,
75 Pa.C.S.A. § 3804(c)(2)(i) provides for a mandatory minimum sentence of
90 days’ imprisonment and a $1,500 fine. With an offense gravity score of 5
and a prior record score of 3, the guidelines provided for a standard range
sentence of 6 to 16 months. (Notes of testimony, 5/6/16 at 3; docket #14.)
Without evidence of appellant’s refusal, the offense would have been graded
as a third-degree misdemeanor punishable by a maximum of 6 months’
imprisonment, and a mandatory minimum of only 5 days’ imprisonment.
75 Pa.C.S.A. §§ 3803(a)(1), 3804(a)(2)(i).
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In Giron, addressing Birchfield and Commonwealth v. Evans, 153
A.3d 323 (Pa.Super. 2016), this court held that, “in the absence of a warrant
or exigent circumstances justifying a search, a defendant who refuses to
provide a blood sample when requested by police is not subject to the
enhanced penalties provided in 75 Pa.C.S.A. §§ 3803-3804.” Giron, 155
A.3d at 640 (footnote omitted). As described above, without a finding that
he refused chemical testing, appellant faced a mandatory minimum of
5 days’ imprisonment and a maximum penalty of 6 months. With the finding
that he refused chemical testing, as a second time repeat DUI offender,
appellant faced a mandatory minimum of 90 days’ imprisonment and a
maximum penalty of 5 years’ imprisonment. As such, appellant’s sentence
of 5 months to 5 years’ imprisonment for his conviction of second-offense
DUI -- general impairment with refusal, graded as a first-degree
misdemeanor, was illegal and it is necessary to remand for resentencing.
Giron.
Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/18
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