Submitted August 4, 2014
Appeal from the Judgment of Sentence of the Court of Common Pleas, Cambria County, Criminal Division, No. CP-11-CR-0000321-2011. Before KRUMENACKER, J.
Ryan D. Gleason, Public Defender, Ebensburg, for appellant.
Scott M. Lilly, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.
BEFORE: DONOHUE, OLSON and PLATT[*], JJ. OPINION BY DONOHUE, J. Joseph D. Seletyn, Esq., Prothonotary.
Appellant, Darrin James Melius (" Melius" ), appeals from the August 19, 2013 judgment of sentence entered by the Court of Common Pleas of Cambria County following the revocation of his furlough for drug treatment. For the reasons that follow, we vacate Melius' judgment of sentence.
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. The trial court sentenced Melius to 12 months of probation. On March 6, 2012, the trial court revoked Melius' probation for drug use and 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 West in York, Pennsylvania (" the Madison House" ) accepted Melius' application for inpatient drug treatment. Melius requested permission from the trial court to attend the drug rehabilitation program at the Madison House. On April 17, 2013, the trial court granted Melius' request for a 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 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 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.
Melius' Brief at 4.
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; Commonwealth's Brief at 3 n.1. This is a question of law, for which " [o]ur standard of review ... is de novo and our scope of review is plenary. Commonwealth v. Diamond, 2008 PA Super. 45, 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 ...