J-A02043-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRYSTAL MARIE ANTHONY :
:
Appellant : No. 457 WDA 2022
Appeal from the Judgment of Sentence Entered March 24, 2022
In the Court of Common Pleas of Clarion County Criminal Division at No:
CP-16-CR-0000518-2015
BEFORE: BOWES, J., OLSON, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: APRIL 14, 2023
Appellant, Crystal Marie Anthony, appeals from the judgment of
sentence entered on March 24, 2022, following the revocation of her parole.
We vacate and remand.
We briefly set forth the facts and procedural history of this case as
follows. Appellant pled guilty to forgery1 and, on February 17, 2016, the trial
court sentenced her to six months of probation at docket number
CP-16-CR-518-2015. On the same date, but at docket number
CP-16-CR-519-2015, the trial court also sentenced Appellant to a consecutive
term of six months of probation for possession of a controlled substance by
misrepresentation, fraud, forgery or subterfuge pursuant to 35 P.S.
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1 18 Pa.C.S.A. § 4104(a)(3).
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§ 780-113(a)(12).2 While on probation for forgery at docket number
CP-16-CR-518-2015, Appellant admitted she was in technical violation of the
terms of her probation. By order entered on March 24, 2016, the trial court
resentenced Appellant to 30 days to two years of imprisonment, followed by
a consecutive term of three years of probation. The trial court gave Appellant
30 days’ credit for time served. Since then, in three separate proceedings
held in April 2016, June 2018, and March 2022, Appellant was found to be in
technical violation of her parole while serving her sentence for forgery at
docket number CP-16-CR-518-2015. Each time, she was resentenced to a
term of imprisonment with consecutive probation.
At issue currently, on March 24, 2022, while serving her sentence at
docket number CP-16-CR-518-2015, Appellant again admitted to technical
violations of her parole. N.T., 3/24/2022, at 2-3. The trial court revoked
parole, recommitted Appellant to serve the balance of her sentence in prison,
revoked her street time, and gave her 71 days’ credit for time served. Id. at
7. The trial court also found Appellant met the criteria for inpatient drug and
alcohol treatment and ordered her to “be released from incarceration on March
25, 2022, [] to begin inpatient treatment.” Id. The trial court further ordered
that Appellant’s probation at docket number CP-16-CR-519-2015 “shall
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2 Appellant has not completed her sentence at docket number
CP-16-CR-518-2015 and, therefore, she has not started her consecutive,
six-month probationary sentence at docket number CP-15-CR-519-2015. The
sentence at docket number CP-15-CR-519-2015 has remained unchanged,
and Appellant is not challenging that sentence on appeal.
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continue to run consecutive” to the new sentence imposed at docket number
CP-16-CR-518-2015. Id. This timely appeal resulted.3
On appeal, Appellant presents the following issues for our review:
1. [Whether] the sentence imposed by the [t]rial [c]ourt was
excessive in that [Appellant’s] parole and street time were
revoked on a docket that began as a six-month probationary
sentence in 2015, during which time she has never been
charged with a new criminal offense[?]
2. [Whether] the [t]rial [c]ourt erred in not crediting [Appellant]
with time served for the time previously spent in court-ordered
inpatient drug and alcohol treatment[?]
Appellant’s Brief at 6.
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3 The sentence at issue, while listing both trial court docket numbers, was only
entered at CP-16-CR-518-2015. Appellant’s sentence at CP-16-CR-519-2015
was not altered because Appellant had not begun to serve that sentence. On
April 21, 2022, Appellant filed a counseled, single notice of appeal challenging
resentencing at both dockets. On April 25, 2022, the trial court issued an
order directing Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on May
13, 2022. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
June 16, 2022. On July 25, 2022, this Court entered an order to show cause
why the appeal should not be quashed because (1) Appellant filed a single
notice of appeal challenging an order which supposedly impacted two separate
dockets in contravention of Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018) (requiring separate notices of appeal for each challenged trial court
docket) and (2) the resentencing order was only entered at docket number
CP-15-CR-518-2015. See Pa.R.A.P. 301(a)(1) (providing that an order is not
appealable until it has been entered upon the appropriate trial court docket).
On August 4, 2022, Appellant filed a response, indicating that she only
intended to challenge the resentencing order entered at docket number
CP-15-CR-518-2015, as set forth in her Rule 1925(b) concise statement of
errors complained of on appeal. Accordingly, this Court granted Appellant’s
request to amend the caption to reflect only the challenged trial court docket,
docket number CP-15-CR-518-2015. On August 25, 2022, Appellant filed an
amended notice of appeal listing only CP-15-CR-518-2015. We have changed
the caption to reflect that amendment and this appeal is now ready for review.
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First, Appellant contends that her sentence is excessive, arguing in sum:
Appellant has not committed a new crime since being placed on
supervision in February 2016, and [the trial c]ourt
acknowledge[d] the nearly four (4) year period without violations
prior to resentencing her. To date, Appellant has been
incarcerated for various lengths of time on numerous occasions,
sent to court ordered inpatient drug rehab[ilation] on numerous
occasions, and had her supervision and street time revoked on
numerous occasions over these technical violations.
Under these circumstances, Appellant avers that the [trial c]ourt’s
decision to again revoke her parole and her street time, thus
keeping her on supervision for what will amount to nearly a
decade for what started as a six (6) month probation [sentence],
is an abuse of discretion. Appellant has a right to expect that her
supervision will not be continued indefinitely over periodic
technical violations of [supervision]. Appellant avers that she has
paid back her debt to society at this docket and she should be
permitted to begin her [probation] at docket [number CP-16-CR-]
519-2015.
Appellant’s Brief at 14-15. This claim fails.
This Court has previously determined that, following the revocation of
parole,
a defendant appealing recommitment cannot contend, for
example, that the sentence is harsh and excessive. Such a claim
might implicate discretionary sentencing but it is improper in a
parole-revocation appeal. Similarly, it is inappropriate for a
parole-revocation appellant to challenge the sentence by arguing
that the court failed to consider mitigating factors or failed to place
reasons for sentence on the record.
Challenges of those types [] implicate the discretionary aspects of
the underlying sentence[.]
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (citations
omitted). Discretionary sentencing challenges cannot be raised on appeal
from parole revocation proceedings because,
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a parole revocation does not involve the imposition of a new
sentence. Indeed, there is no authority for a parole-revocation
court to impose a new penalty. Rather, the only 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 again be paroled.
Id. at 290.
As Kalichak makes clear, following the revocation of parole, the trial
court may not impose a new sentence. “[T]he only option for a court that
decides to revoke parole is to recommit the defendant to serve the
already-imposed, original sentence.” Id. As such, “[f]ollowing parole
revocation and recommitment, the proper issue on appeal is whether the
revocation court erred, as a matter of law, in deciding to revoke parole and,
therefore, to recommit the defendant to confinement.” Id. at 291. Here,
Appellant admitted to violating the terms of her parole and, on appeal, she
does not contest the trial court’s revocation decision. Instead, Appellant
argues that “the [t]rial [c]ourt’s decision to continuously revoke Appellant’s
street time and extend her supervision indefinitely for technical violations
amounts to an excessive sentence in that she has been on supervision for
nearly seven (7) years for what started as a six (6) month probationary
sentence for a charge that carries a maximum penalty of five (5) years.”
Appellant’s Brief at 10. We do not review resentencing, following the
revocation of parole, for alleged excessiveness or discretionary aspects of
sentencing. See Kalichak; compare Commonwealth v. Early, 279 A.3d
1269 (Pa. Super. 2022) (this Court vacated and remanded following parole
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revocation and resentencing where the trial court erroneously imposed a new
sentence and that sentence was illegal). Appellant has a legitimate
expectation that her supervision would conclude simply due to the passage of
time. To complete her supervision, Appellant needed to pass the prescribed
period in compliance with all applicable rules and conditions. She admits,
however, that she failed to do so. Because we discern no error of law, we
conclude that Appellant is not entitled to relief on her first appellate claim.
Next, Appellant asserts that she should be given credit for time spent in
prior drug and alcohol rehabilitation pursuant to 42 Pa.C.S.A. § 9760(2).4
More specifically, Appellant posits:
[S]he was required to complete inpatient drug and alcohol
[rehabilitation] in order to leave or remain free from confinement
in the Clarion County Jail on multiple occasions as a condition of
her supervision with Clarion County. Specifically, Appellant had
most recently completed a short-term program at ARC Manor.
Appellant asked at her [revocation of parole] hearing for the time
spent in inpatient rehab to be credited against her sentence, but
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4 That statute provides, in pertinent part:
(2) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody under a prior sentence if he is later reprosecuted
and resentenced for the same offense or for another offense
based on the same act or acts. This shall include credit in
accordance with paragraph (1) of this section for all time
spent in custody as a result of both the original charge and
any subsequent charge for the same offense or for another
offense based on the same act or acts.
42 Pa.C.S.A. § 9760(2).
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this request was denied.[5] At the conclusion of her [revocation of
parole] hearing, Appellant was again court-ordered to complete
inpatient treatment to facilitate her release from jail.
Appellant contends that in the context of having to choose
between completing an inpatient rehab program and going to or
remaining in jail, that the time spent in rehab must be credited as
time served against her sentence. At minimum, Appellant
contends that additional[] testimony is needed to determine the
amount of time she spent in court-ordered rehabilitation programs
at this docket, and if necessary, to determine the custodial
conditions of said programs. However, Appellant suggests that
when her only choice is to participate and complete inpatient
rehab or to go sit in jail, that in that context the time spent in
rehab must always be credited.
Appellant’s Brief at 16-17 (record citations omitted).
“A claim asserting that the trial court failed to award credit for time
served implicates the legality of the sentence.” Commonwealth v. Gibbs,
181 A.3d 1165, 1166 (Pa. Super. 2018) (citation omitted). “Issues relating
to the legality of a sentence are questions of law. Our standard of review over
such questions is de novo and the scope of review is plenary.” Gibbs, 181
A.3d at 1166 (citation omitted). However, “[g]enerally, 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.’”
Commonwealth v. Fowler, 930 A.2d 586, 596 (Pa. Super. 2007), citing
Commonwealth v. Conahan, 589 A.2d 1107 (Pa. 1991). “[I]npatient
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5 To the extent that Appellant now seeks credit for the time allegedly served
for all of her drug and alcohol rehabilitation over the life of this case, we limit
our analysis to Appellant’s most-recent stint at Arc Manor. Challenges to the
terms and conditions of Appellant’s other prior sentences are simply untimely
and beyond our review.
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institutional rehabilitation in no way entitles one ... to a credit for such
rehabilitative commitment as of right.” Id., citing Conahan, 89 A.2d at 1110
(emphasis in original). “Rather, it is only an express approval of credits for
such commitment that the sentencing court in its discretion deems to be
sufficient.” Id. Under the Sentencing Code, a defendant is entitled to credit
for time served “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).6 “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[/drug] treatment facility.”
Commonwealth v. Toland, 995 A.2d 1242, 1249 (Pa. Super. 2010) (citation
omitted). As we have previously explained:
[…W]hether 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 [s]he is entitled to credit for that time against [her]
sentence. By contrast, if a defendant chooses to voluntarily
commit [herself] to inpatient rehabilitation, then whether to
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6 Appellant cites 42 Pa.C.S.A. § 9760(2), instead of Section 9760(1). Section
9760(2), as stated above, provides for credit for time served “for all time
spent in custody under a prior sentence if [] later reprosecuted and
resentenced for the same offense or for another offense based on the same
act or acts.” 42 Pa.C.S.A. § 9760(2) (emphasis added). Here, Appellant was
not reprosecuted. Instead, her parole was revoked. As such, any reliance on
Section 9760(2) is misplaced and inapplicable.
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approve credit for such commitment is a matter within the sound
discretion of the court.
Id. at 1250–1251. “Our overall task is to examine the rules and regulations
of each program on a case-by-case basis by considering the extent of control
exercised by those in authority and the restraints and limitations on the
freedom of the individual seeking credit for time served.” Commonwealth
v. Druce, 868 A.2d 1232, 1237 (Pa. Super. 2005) (internal quotation marks
and citation omitted).
Here, the trial court opined that “[t]here was no evidence offered
indicating that [Appellant’s] drug and alcohol program had exacted the
necessary ‘control, restraints and limitations’ on her freedom for finding her
‘in custody.’” Trial Court Opinion, 6/16/2022, at *2, citing Druce, 868 A.2d
at 1237. As such, the trial court concluded it did not err in refusing to credit
Appellant with time served for her previous time spent in inpatient drug
rehabilitation. Id. Upon review of applicable law and the record, we disagree.
In this case, at the revocation of parole hearing, counsel for Appellant “ask[ed]
the [trial c]ourt to consider crediting [Appellant’s] time spent in inpatient
treatment towards the credit for time served calculation.” N.T., 3/24/2022,
at 4-5. Defense counsel asked that “the 28 or so days” that Appellant spent
in “a short-term program at ARC Manor” be applied as credit for time served.
Id. at 5. The trial court merely responded that “[r]egarding the credit for
inpatient [rehabilitation] as expressed in the past, [the trial court was] not
willing to do that.” Id. at 6. There is, as the trial court suggests, no evidence
of record as to whether the inpatient treatment facility restricted or restrained
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Appellant’s freedom or if Appellant voluntarily entered the program at issue.7
However, the trial court did not allow Appellant to present any evidence and,
instead, summarily dismissed Appellant’s claim for credit for time served
without entertaining argument regarding the custodial nature of the program
and whether it was voluntary. As such, we discern error in failing to analyze
Appellant’s credit for time served claim without meaningful inquiry.
Accordingly, we vacate Appellant’s judgment of sentence and remand for
additional proceedings, wherein Appellant is permitted to present evidence
pertaining to her inpatient rehabilitation at Arc Manor and whether her time
spent there constitutes custody as defined by Section 9760(1).8
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
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7 Upon further review of the record, on February 18, 2022, the Clarion County
Adult Parole and Probation Department issued Appellant notice of her alleged
violations of parole prior to the revocation hearing. Relevant to the issue
presented herein, the Parole Department charged Appellant with a violation of
“Rule #11: Special Conditions” as she was supposed to participate in “[p]ost
inpatient treatment” and “successfully complete all recommended treatment
and [] not permitted to decline any level of care.” Violation Notice, 2/18/2022,
at *2. The violation notice also stated that Appellant was “inconsistent with
[] treatment [] at ARC Manor, placing [her] in danger of an unsuccessful
discharge (several missed appointments).” Id. Such information suggests
that Appellant was already on parole at the time that she entered inpatient
rehabilitation.
8 To the extent that Appellant argues that she should anticipatorily be credited
for future time spent in inpatient rehabilitation, there is no legal justification
for such credit. Finally, we note that Appellant received 71 days of credit for
time served while previously incarcerated. Id. at 7. She does not dispute
that determination.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2023
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