J-S03029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ETHAN STEWART KENNEY :
:
Appellant : No. 640 WDA 2020
Appeal from the Judgment of Sentence Entered January 23, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001323-2014
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED: MARCH 18, 2021
Ethan Stewart Kenney (Appellant) appeals from the judgment of
sentence imposed following remand for resentencing. We affirm.
In Appellant’s prior appeal, we explained:
This case arises out of a single-vehicle accident in the early
morning hours of June 9, 2013, in which [Appellant] drove a truck
into a guardrail, a bridge abutment, a second guardrail, and a
tree, killing the passenger who was riding in his vehicle.
[Appellant] was charged with homicide by vehicle while driving
under the influence, driving under the influence (DUI), leaving the
scene of an accident involving death, homicide by vehicle, and 10
summary offenses, including disregarding traffic lane, driving at
unsafe speed, careless driving, failure to notify police of an
accident, and failure to use safety belt.[1] On March 19, 2018, the
trial court ordered that the results of a blood alcohol test be
suppressed under Birchfield v. North Dakota, --- U.S. ----, 136
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3735(a), 3802(e), 3742(a), 3732(a), 3309(1), 3361,
3714(a), 3746(a)(1), and 4581(a)(2)(ii).
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S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Commonwealth v.
Ennels, 167 A.3d 716 (Pa. Super. 2017). On May 21, 2018,
[Appellant] pled guilty to leaving the scene of an accident
involving death, homicide by vehicle, and the summary offenses
of disregarding traffic lane, driving at unsafe speed, careless
driving, failure to notify police of an accident, and failure to use
safety belt. In conjunction with [Appellant’s] guilty pleas, the
Commonwealth nol prossed the homicide by vehicle while driving
under the influence, DUI, and remaining summary offense
charges.
In 2013, when this crime occurred, Section 3742(b)(3) of
the Vehicle Code required a minimum sentence of one year of
imprisonment for leaving the scene of an accident involving death,
provided that the Commonwealth gave notice of intent to seek the
imposition of that mandatory minimum. 75 Pa.C.S. §§
3742(b)(3)(i), (ii). Prior to sentencing, the Commonwealth filed
a notice of intent to seek the mandatory minimum sentence under
Section 3742(b)(3) of the Vehicle Code, and [Appellant] and the
Commonwealth submitted sentencing memoranda. [Appellant]
argued that the sentencing court should impose a [county
intermediate punishment (CIP)] sentence. The Commonwealth
opposed this request and contended that Section 3742 of the
Vehicle Code does not permit a CIP sentence for leaving the scene
of an accident involving death.
On October 30, 2018, the sentencing court imposed a CIP
sentence for the leaving the scene of an accident involving death
conviction, consisting of five years intermediate punishment, of
which one year was to be served on house arrest with electronic
monitoring. The court imposed a concurrent CIP sentence of five
years intermediate punishment, of which 540 days were to be
served on house arrest with electronic monitoring, for homicide
by vehicle and no further penalty for the summary offenses. The
CIP sentences did not include any term of imprisonment and also
provided that the sentencing court could reduce the length of
supervision after two years. The Commonwealth timely appealed
from this judgment of sentence on November 8, 2018.
Commonwealth v. Kenney, 210 A.3d 1077, 1078-79 (Pa. Super. 2019)
(some citations and footnotes omitted; footnote added).
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In the prior appeal, the Commonwealth claimed the trial court erred by
failing to impose the mandatory one-year minimum term of imprisonment
required by the version of 75 Pa.C.S.A. § 3742(b)(3) in effect at the time of
Appellant’s crimes.2 Kenney, 210 A.3d at 1079. We agreed, and found that
the trial court imposed an illegal sentence because it was “required to impose
the mandatory minimum sentence of imprisonment for one year for leaving
the scene of an accident involving death in accordance with Section
3742(b)(3) of the Vehicle Code, and lacked discretion to impose a CIP
sentence without imprisonment for that offense.” Id. at 1082. Accordingly,
we vacated Appellant’s judgment of sentence and remanded for resentencing
“in accordance with Section 3742(b)(3) of the Vehicle Code.” Id.
Appellant filed a petition for allowance of appeal with the Pennsylvania
Supreme Court. On November 20, 2019, the Supreme Court denied
Appellant’s petition.
The case was remanded to the trial court. On January 23, 2020, the
court resentenced Appellant to 1 to 2 years of incarceration; the court did not
give Appellant credit for time he spent on house arrest prior to resentencing.
See Order, 1/23/20. Appellant filed a timely post-sentence motion, which the
trial court denied on May 29, 2020. Appellant filed this appeal on June 19,
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2 The current version of 75 Pa.C.S.A. § 3742(b)(3) requires a trial court to
impose a mandatory minimum sentence of 3 years of incarceration for a
conviction of leaving the scene of an accident involving death.
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2020. Both the trial court and Appellant have complied with Pennsylvania
Rule of Appellate Procedure 1925.
Appellant presents a single issue for review:
WHETHER THE SENTENCING COURT ERRED IN DENYING CREDIT
TIME FOR FOUR HUNDRED AND FORTY-ONE (441) DAYS
APPELLANT SERVED ON ELECTRONIC MONITORING FROM THE
DATE OF HIS INITIAL SENTENCING PROCEEDING TO THE DATE
OF HIS RESENTENCING, WHEN THE SENTENCING COURT HELD
THAT IT WAS FUNDAMENTALLY UNFAIR FOR APPELLANT NOT TO
RECEIVE SAID CREDIT TIME; THE SENTENCING COURT WOULD
HAVE GIVEN SAID CREDIT TIME TO APPELLANT IF IT WAS WITHIN
THE COURT’S DISCRETION TO DO SO; AND THE PENNSYLVANIA
SUPREME COURT’S DECISION IN COMMONWEALTH V.
KRISTON, 588 A.2d 898 (Pa. 1991) ENTITLED APPELLANT TO
SAID CREDIT TIME BASED ON THE SENTENCING COURT’S
DETERMINATION THAT CREDIT WAS APPROPRIATE UNDER THE
CIRCUMSTANCES.
Appellant’s Brief at 4.
Appellant claims the trial court erred in denying his request for credit
for the 441 days he spent on house arrest prior to his January 23, 2020
resentencing. Appellant’s Brief at 8-13. “[A] claim based upon a trial court’s
failure to give full credit for time served is a challenge implicating the legality
of one’s sentence.” Commonwealth v. Lee, 182 A.3d 481, 483-84 (Pa.
Super. 2018) (citations omitted).
If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated. In evaluating a trial court’s application of a
statute, our standard of review is plenary and is limited to
determining whether the trial court committed an error of law.
Id. at 484 (citations omitted).
42 Pa.C.S.A. § 9760(1) provides:
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After reviewing the information submitted under section 9737
(relating to report of outstanding charges and sentences) the
court shall give credit as follows:
(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.
Id. (bold emphasis added).
We have explained:
Section 9760 of the Sentencing Code provides that a defendant is
entitled to credit for “time spent in custody.” As this Court has
recently summarized:
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
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 prison. [] The
plain and ordinary meaning of imprisonment is
confinement in a correctional or similar rehabilitative
institution.
Commonwealth v. Fowler, [] 930 A.2d 586, 595-96 ([Pa.
Super.] 2007) []. Indeed, Pennsylvania appellate courts
consistently have interpreted [S]ection 9760’s reference to
“custody” as confinement in prison or another institution. . . . Most
recently, in [Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005)],
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the Supreme Court reiterated that electronic home
monitoring constituted neither imprisonment nor custody
such that credit against a sentence of incarceration was
warranted.
Commonwealth v. Maxwell, 932 A.2d 941, 943-44 (Pa. Super. 2007) (some
citations and footnote omitted, bold emphasis added).
Appellant argues that under Commonwealth v. Kriston, 588 A.2d 898
(Pa. 1991), the trial court was required to credit him for time spent on house
arrest prior to resentencing due to “considerations of fundamental fairness.”
Appellant’s Brief at 11-13. We disagree.
More than 20 years ago, we rejected this same argument in
Commonwealth v. Wilson, 744 A.2d 290, 291 (Pa. Super. 1999). In
addressing an appellant’s claim that he was entitled to credit for time on house
arrest, Judge Beck addressed Kriston:
The defendant in Kriston was sentenced to serve a 30-day
mandatory prison term for his second DUI conviction. Contrary to
law, prison authorities erroneously released him to a home-
monitoring program. In doing so, they assured the defendant that
this time would be credited toward his sentence. When the error
was discovered, the defendant sought to have the time credited.
Our supreme court held that credit was appropriate since
assurances had been made to the defendant that he would be
given credit. Id. at [901]. The court reached this conclusion while
recognizing that a defendant is required to serve his sentence in
a prison, not a home, and that a defendant on home monitoring
is not entitled to credit for time served. Id.
Commonwealth v. Wilson, 744 A.2d 290, 291 (Pa. Super. 1999) (footnote
omitted).
Judge Beck clarified:
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After careful consideration of the facts in this case and the
applicable law, we conclude that appellant is not entitled to credit
for time served while on house arrest. The statute limits time
served to time in custody. Custody has been strictly defined
and does not include house arrest. Kriston, supra; Shartle,
supra. The only precedent is found in the exception carved out
in Kriston. That exception, however, was narrowly drawn and
applied where the defendant was given assurances that he would
be entitled to credit against his sentence for the period of home
monitoring. In this case, appellant was given no such assurances.
Id. at 292 (bold emphasis added).
More recently, the Supreme Court stated:
This Court has emphasized that, because home release on
electronic monitoring does not constitute custody, credit should
not be awarded for it toward a prison sentence. Exceptions to this
rule have been recognized only where equity was deemed to
require it, such as when a defendant was assured that his time
spent on electronic monitoring would count toward his sentence.
Kyle, 874 A.2d 18 (citing Kriston, supra).3
Here, Appellant is not entitled to credit for time served on house arrest.
Unlike the “narrowly drawn” exception for the defendant in Kriston, Appellant
has never asserted that he received assurances of credit, and the record does
not indicate that any assurances were given. See, e.g., Appellant’s Brief at
7-13. See also Commonwealth Brief at 8 (“Appellant was never incarcerated
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3 The Supreme Court further observed:
While at home, an offender enjoys unrestricted freedom of
activity, movement, and association. He can eat, sleep, make
phone calls, watch television, and entertain guests at his leisure.
Furthermore, an offender confined to his home does not suffer the
same surveillance and lack of privacy that he would if he were
actually incarcerated.
Kyle, 874 A.2d at 21 (citations omitted).
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in a correctional facility, nor was he promised that his electronic monitoring
time would be credited to him.”).
As Judge Beck stated, “Custody has been strictly defined and does not
include house arrest.” Wilson, 744 A.2d at 292. See also Commonwealth
v. Stevenson, 850 A.2d 1268, 1272 (Pa. Super. 2004) (“Our Supreme Court
has held that credit for time served in a home electronic monitoring program
may not be granted against a mandatory minimum sentence of imprisonment,
absent equitable considerations which are not present in this case.”). Thus,
Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judge Dubow joins the memorandum.
Judge Strassburger did not participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2021
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