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Commonwealth v. Lee
Superior Court of Pennsylvania
March 22, 2018
COMMONWEALTH OF PENNSYLVANIA
TIMOTHY F. LEE Appellant
from the Judgment of Sentence April 27, 2017 In the Court of
Common Pleas of Monroe County Criminal Division at No(s):
BEFORE: DUBOW, J., MURRAY, J., and STEVENS [*], P.J.E.
Timothy F. Lee appeals from the judgment of sentence entered
in the Court of Common Pleas of Monroe County on April 27,
2017, following his expulsion from the State Intermediate
Punishment (SIP) program. Following a careful review, we
trial court aptly set forth the facts and procedural history
herein as follows:
2. Appellant's Acceptance Into, Movement Through, and
Expulsion from SIP
On March 25, 2015, [Appellant] pled guilty in both of the
captioned cases and was referred for an SIP evaluation. After
acceptance, he was formally sentenced to SIP. Unfortunately,
after spending substantial time in SIP, [Appellant] was
expelled from the program. His movements through and
expulsion from SIP may be summarized as follows:
[Appellant] successfully completed Phase One of the SIP
program. During the evaluation period and while in Phase One,
[Appellant] was housed in a State Correctional Institution
On completion of Phase One, [Appellant] was transferred
directly to Luzerne County Rehabilitation Center
("LCRC"), a privately operated inpatient drug and
alcohol rehabilitation facility, for Phase Two of the
program. [Appellant] spent 62 consecutive days in LCRC.
(N.T., 6/16/2017, pp. 8-9).
[Appellant] was then transferred to Scranton Community
Corrections Center (SCCC) for Phase Three. While there,
[Appellant] relapsed. As a result, he was sent back to Phase
Two on August 29, 2016.
In his second stint, [Appellant] completed 32 consecutive
days in Phase Two. After completion, he was returned to Phase
Unfortunately, on January 1, 2017, while still in Phase
Three, [Appellant] relapsed again and overdosed on heroin.
Subsequently, [Appellant] consumed narcotics and admitted his
intent to adulterate a drug screen to hide the fact. As a
result of the time it took to address the relapses, overdose,
and [Appellant's] treatment needs, [Appellant] ran out of
time in the SIP program. Specifically, it became impossible
for [Appellant] to complete the program within the statutory
On February 7, 2017, the Department of Corrections (DOC)
expelled [Appellant] from SIP for violation of program rules,
lack of meaningful participation, and insufficient time to
complete the program. (March 16, DOC Letter). On expulsion,
[Appellant] was transported to a SCI. He remained there
through issuance of the re-sentencing orders from which these
appeals have been taken.
3. Re-Sentencing and the Time Credit Issue
Upon being notified of the expulsion, we scheduled a
revocation and re-sentencing hearing in accordance with the
SIP statute and applicable law. At the hearing, [Appellant]
did not contest his expulsion. As a result, we entered orders
revoking the SIP sentences. However, because issues were
raised regarding time credit, a separate re-sentencing
hearing was scheduled and the DOC was directed to provide a
report of [Appellant's] progress through the program and
the amount of time spent he spent in each phase. (Order dated
On April 27, 2017, the re-sentencing hearing was held, as
scheduled. At the conclusion of the hearing, we re-sentenced
[Appellant] to an aggregate period of incarceration of 42 to
84 months. (Orders dated April 27, 2017). We granted
[Appellant] a time credit of 565 days representing all time
he spent in prison on these cases, plus the time he spent in
inpatient rehabilitation in Phase Two of the SIP program. We
did not give Defendant credit for the additional 267 days he
spent in the community in Phase Three, the stage of the
program he was in when expelled. (N.T., 6/16/2017, pp. 8-14;
Probation Re-Sentencing Recommendation Memo; Orders dated
April 27, 2017).
Subsequently, [Appellant] sought and was granted leave to
file post-sentence motions nunc pro tunc. In his
motions, [Appellant] sought additional time credit.
On June 16, 2017, a hearing on [Appellant's] motions was
held. During the hearing, the time credit issue was discussed
The Commonwealth took the position that [Appellant] should be
given credit for only time actually spent in prison
- the Monroe County Correctional Facility before being sent
for his SIP evaluation and all time spent in SCIs thereafter
- and not for any time spent in Phases Two and
Three, the stages of the program that occurred in the
community. The Commonwealth asked us to reduce the time
credit we had previously given by subtracting the number of
days [Appellant] spent in Phase Two.
[Appellant] did not present the testimony of a DOC
representative. However, [Appellant] testified about his time
in Phase Three. [Appellant's] attorney argued that
[Appellant] should retain the credit we had already given
him, but asked us to increase the total time credit by adding
the number of days [Appellant] spent in Phase Three.
According to counsel, [Appellant] is entitled to credit for
time spent in Phase Three because LCRC and the other
Community Corrections Centers in which [Appellant] was housed
were sufficiently restrictive, [Appellant] was at all times
subject to escape charges if he walked away, and sound policy
considerations dictate that full credit be awarded.
At the conclusion of the hearing, we entered orders denying
[Appellant's] motions. We summarized on the record the
reasons why we declined the requests of both parties and
denied [Appellant's] motions. As indicated, in
articulating our rationale, we referenced and incorporated
the Frantzke/McDevitt opinion. (N.T., 6/16/2017, pp.
8-15, 22-27; Orders dated June 16, 2017). We incorporate our
on-record reasoning into this opinion by reference.
Subsequently, [Appellant] filed the instant ...
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