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Commonwealth v. Lee

Superior Court of Pennsylvania

March 22, 2018

TIMOTHY F. LEE Appellant

          Appeal from the Judgment of Sentence April 27, 2017 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000473-2015, CP-45-CR-0000507-2015

          BEFORE: DUBOW, J., MURRAY, J., and STEVENS [*], P.J.E.


          STEVENS, P.J.E.

         Appellant 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 affirm.

         The 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 (SCI).
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 Three.
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 time frame.
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 4/27/2017).
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 at length.
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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