Com. v. Harrigan, E.

• Court: Superior Court of Pennsylvania
• Decided: May 26, 2021
• Docket: 980 MDA 2020
• Status: Unpublished

Opinion

J-S08002-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ERIN ELIZABETH HARRIGAN

Appellant No. 980 MDA 2020

Appeal from the Judgment of Sentence entered July 9, 2020 In the Court of Common Pleas of Bradford County Criminal Division at No: CP-08-CR-0000150-2020

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:0 FILED MAY 26, 2021

Appellant, Erin Elizabeth Harrigan, appeals from the judgment of

sentence imposed in the Court of Common Pleas of Bradford County on July

9, 2020. Counsel has filed a brief and petition to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), challenging the discretionary aspects of

Appellant’s sentence. We grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

The factual and procedural background is not at issue. Briefly, “[o]n

July 9, 2020[,] Appellant was sentenced to imprisonment the minimum of

which is 90 days and the maximum of which is 36 months on the offense of ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S08002-21

possession of drug paraphernalia, 35 P.S. § 780-113(a)(16), an ungraded

misdemeanor. [On July 13, 2020, a] post sentence motion was filed and

denied.” Trial Court Opinion, 10/14/20, at 1 (unnecessary capitalization

omitted). This appeal followed.

The Anders brief challenges the discretionary aspects of Appellant’s

sentence.1 Before we address the merits of the challenge, however, we

must consider the adequacy of counsel’s compliance with Anders and

Santiago. Our Supreme Court requires counsel to do the following.

____________________________________________

1 Specifically, Appellant argues that the trial court erred in not granting 28 days of inpatient rehabilitation toward time served. Generally, issues involving credit for time spent in custody involve the legality of the sentence. Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007). However, as explained infra,

whether 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, . . . then he is entitled to credit for that time against his sentence. By contrast, if a defendant chooses to voluntarily commit himself to inpatient rehabilitation, then whether to approve credit for such commitment is a matter within the sound discretion of the court.

Commonwealth v. Toland, 995 A.2d 1242, 1250-51 (Pa. Super. 2010). Here, it is uncontested that Appellant voluntarily entered the rehabilitation facility. Accordingly, it was “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. Conahan, 589 A.2d 1107, 1110 (Pa. 1991). See also Commonwealth v. Shull, 148 A.3d 820, 847 (Pa. Super. 2016), and Commonwealth v. Mincone, 592 A.2d 1375, 1376- 77 (Pa. Super. 1991) (en banc).

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Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief must:

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

Counsel’s brief substantially complies with these requirements by (1)

providing a summary of the procedural history and facts; (2) referring to

matters of record relevant to this appeal; and (3) explaining why the appeal

is frivolous. Counsel also sent his brief to Appellant with a letter advising

her of the rights listed in Orellana. Accordingly, all Anders’ requirements

are satisfied.

As noted, Appellant argues that the trial court abused its discretion by

refusing to grant credit for time she spent in an inpatient rehabilitation

institution. We disagree.

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Because “there is no absolute right to appeal when challenging the

discretionary aspect of a sentence,” Commonwealth v. Dodge, 77 A.3d

1263, 1268 (Pa. Super. 2013), an appellant challenging the discretionary

aspects of a sentence must invoke this Court’s jurisdiction by satisfying a

four-part test. We must determine: 1) whether the appellant has filed a

timely notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence; (3) whether

the appellant’s brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.

Super. 2010).

Upon review, we find that Appellant has timely appealed, the issue

presented was properly preserved, and Appellant’s brief contains no fatal

defect. We now address whether Appellant has presented a substantial

question for review. As previously indicated, a challenge that a trial court

failed to award credit for time served in custody prior to sentencing involves

the legality of a sentence. Fowler, supra. Claims that allege sentencing

illegality cannot be waived and may be raised for the first time on appeal,

even sua sponte by this Court. See, e.g., Commonwealth v. Kitchen,

814 A.2d 209, 214-15 (Pa. Super. 2002). As such, illegality claims do not

fall within those discretionary claims that must satisfy Rule 2119(f) before

they may be heard on appeal by this Court. We do not have before us

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however, an illegality claim, since as stated, the decision whether to grant

credit for time voluntarily spent in a rehabilitative facility is left to the

discretion of a trial court. Toland, supra; Conahan, supra; Shull, supra;

Mincone, supra. For our present purposes, we will accept that Appellant

has presented a substantial question for our review, as we have addressed

these claims in the past. See Shull, 148 A.2d at 847 (Pa. Super. 2016)

(discussing the merits of Shull’s claim that the trial court erred in failing to

award him credit for time spent in a rehabilitation center); Toland, supra.

When reviewing a challenge to the trial court’s discretion, our

standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill- will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.

2002)).

The Sentencing Code provides that a defendant shall receive credit for

all time spent in custody prior to trial:

§ 9760. Credit for time served

(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

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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). “The principle underlying [Section 9760] is that a

defendant should be given credit for time spent in custody prior to

sentencing for a particular offense.” Fowler, 930 A.2d at 595.

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 a prison.

Id. at 595–96 (quotation omitted).

In Toland we discussed how precedent distinguishes voluntary from

court-ordered pretrial, inpatient admissions when inquiring into whether

credit for time served should be granted or denied, explaining:

Looking at these cases together, therefore, it seems that whether 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 he is entitled to credit for that time against his sentence. [Commonwealth v. Cozzone, 593 A.2d 860 (Pa. Super. 1991)]. By contrast, if a defendant chooses to voluntarily commit himself to inpatient rehabilitation, then whether to approve credit for such commitment is a matter within the sound discretion of the court. [Conahan, supra]. See also [Mincone, supra] (trial court may exercise its discretion in

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determining whether to grant defendant credit towards his mandatory minimum sentence of imprisonment for time voluntarily spent at . . . an institutionalized rehabilitation facility) (discussing Conahan, supra).

Toland, 995 A.2d at 1250–51.

Here, the trial court determined, and Appellant does not contest, that

Appellant voluntarily admitted herself into rehabilitation. See Trial Court

Opinion, 10/14/20, at 1-2; Anders Brief at 6. Given this finding, and in

light of the authorities cited above, we decline to find the trial court abused

its discretion in refusing to credit time served for time she spent in voluntary

rehabilitation. Toland, supra; Shull, supra.

Appellant next argues the trial court abused its discretion in not

allowing Appellant to serve the remainder of her sentence in a rehabilitation

facility.

The trial court, which had the benefit of the presentence investigation

report, and sentenced her within the standard range of the sentencing

guidelines, addressed this matter at the time of sentencing. In essence, the

trial court declined Appellant’s request to serve the remainder of her

sentence in a rehabilitation facility because she was not “taking [her

predicament] seriously, . . . because she continues to com[m]it crimes . . .,

[and because] she performed poorly on supervised bail.” N.T. Sentencing,

7/9/20, at 6-8. Given that the sentencing court imposed a standard-range

sentence with the benefit of a presentence report, and that the trial court

provided ample reasons for not granting Appellant’s request to serve the

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remainder of her sentence in a rehabilitation facility, we will not disturb the

trial court’s exercise of discretion. Bowen, supra.

We have conducted an independent review of the record and have

addressed Appellant’s arguments on appeal. Based on our conclusions

above, we agree with Appellant’s counsel that the issues Appellant seeks to

litigate in this appeal are without merit, and our independent review of the

record has not revealed any other meritorious issues. We affirm the

judgment of sentence and grant counsel’s application to withdraw.

Counsel’s petition to withdraw granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/26/2021

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