Com. v. Healy, K.

• Court: Superior Court of Pennsylvania
• Decided: June 6, 2024
• Docket: 1260 EDA 2023
• Status: Unpublished

Opinion

J-S42020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KEVIN THOMAS HEALY : No. 1260 EDA 2023

Appeal from the Judgment of Sentence Entered April 12, 2023 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002720-2022

BEFORE: BOWES, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.: FILED JUNE 06, 2024

The Commonwealth of Pennsylvania appeals from the judgment of

sentence of fifty-nine days to twenty-three months of incarceration, followed

by two years of probation, imposed upon Kevin Thomas Healy (“Appellee”)

after he pled guilty to one count each of terroristic threats and recklessly

endangering another person (“REAP”). We affirm.

This case stems from Appellee’s drunken beratement of Sabrina

DeOrdaz, an auto-repair employee, because Appellee’s car was not ready

when he arrived to pick it up. When another employee, Eric Carey, came to

defend Ms. DeOrdaz and asked Appellee to leave, Appellee pointed his firearm

at Mr. Carey’s head and indicated that he was going to shoot Mr. Carey.

Appellee was arrested on scene. The responding officers detected the odor of

alcohol on Appellee’s breath and charged him with aggravated assault, J-S42020-23

terroristic threats, possession of an instrument of crime, simple assault, REAP,

public drunkenness, and three counts of disorderly conduct.

Following Appellee’s release on bail, he voluntarily entered inpatient

treatment for alcoholism at Malibu Wellness Ranch (“the Wellness Ranch”).

He subsequently entered a negotiated guilty plea to terroristic threats and

REAP. Sentencing was deferred for the completion of a presentence

investigation (“PSI”) report. Ultimately, the court imposed the above-

referenced terms of incarceration and probation concurrently at each count.

At Appellee’s request, the court awarded fifty-nine days of credit for time

spent in inpatient treatment at the Wellness Ranch. The Commonwealth,

represented by a substitute attorney at the sentencing hearing, did not argue

against the request. Thereafter, the Commonwealth filed a post-sentence

motion seeking to introduce victim impact statements and challenging the

inpatient credit award. The court held a reconsideration hearing, where it

heard from the victims but upheld the original sentence and award of credit.

This timely appeal followed. The Commonwealth filed a Pa.R.A.P.

1925(b) statement of errors complained of on appeal in compliance with the

trial court’s order, and the trial court issued a responsive Rule 1925(a)

opinion. In this Court, the Commonwealth presents two issues:

I. Whether the court abused its discretion when imposing a sentence that failed to protect the public by ignoring aggravating factors, the violent nature of the crime and its impact on the victims, the societal interest in deterring gun violence, while offering flawed reasons for deviating from the standard guideline range and imposing a lenient

-2- J-S42020-23

sentence of probation with time credit at [the] Wellness Ranch, for pointing a loaded handgun at multiple victims while threatening to shoot them in the face?

II. Whether the sentencing court abused its discretion in fa[i]ling to consider relevant evidence regarding the issue of time credit or allow for a continuance to secure additional witnesses?

Commonwealth’s brief at 6 (capitalization altered).1

The Commonwealth challenges the discretionary aspects of Appellee’s

sentence, an issue for which there is no automatic right of appellate review.

Upon review of the pertinent filings, we conclude that the Commonwealth has

invoked our jurisdiction by (1) timely filing a notice of appeal, (2) preserving

the issues through a post-sentence motion, (3) including a Pa.R.A.P. 2119(f)

statement in its brief, and (4) presenting a substantial question. See

Commonwealth v. Perzel, 291 A.3d 38, 46 (Pa.Super. 2023) (setting forth

the four-part test for this Court to review discretionary sentencing claims);

Commonwealth v. Baker, 311 A.3d 12, 18 (Pa.Super. 2024) (noting that a

claim of unreasonable lenience raises a substantial question).

Turning to the merits of the Commonwealth’s issues, our review is

guided by the following principles:

[S]entencing is vested in the sound discretion of the sentencing court, and we shall not disturb a sentence absent a manifest abuse of discretion. ____________________________________________

1 In the cursory argument sections of its brief, the Commonwealth fails to cite

to the record, provide the relevant sentencing guideline ranges, or set forth a detailed analysis. However, while the brief is certainly not a model of adherence to our Rules of Appellate Procedure, we do not find its failings so severe as to hamper our ability to review the Commonwealth’s claims.

-3- J-S42020-23

In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Schroat, 272 A.3d 523, 527–28 (Pa.Super. 2022)

(cleaned up). Further, we are limited to the requirements set forth in 42

Pa.C.S. § 9781(c) and (d), which provide as follows:

(c) Determination on appeal.--The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

(d) Review of record.--In reviewing the record the appellate court shall have regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

-4- J-S42020-23

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781.

According to the Commonwealth, the sentence imposed was too lenient

in light of “the need to deter gun violence,” Appellee’s “statement in the PSI

[report] blaming the victims and minimizing his conduct[,]” and Appellee’s

misconduct that resulted in a temporary protection from abuse order being

obtained against him while on bail. See Commonwealth’s brief at 12.

Additionally, it points to the testimony offered at the reconsideration hearing

regarding how Appellee’s actions negatively affected the victims. Id. The

Commonwealth maintains that in imposing the sentence it did, the court

ignored these aggravating factors. Id.

Upon review, we do not agree. At the original sentencing hearing, the

trial court had the benefit of a PSI report, which it took into full consideration.

The court also detailed that Appellee had led a relatively long crime-free life,

that the underlying criminal conduct was the result of a relapse in his

alcoholism, and that he promptly sought treatment. See N.T. Sentencing,

4/12/23, at 5-6, 8-9. At the reconsideration-of-sentence hearing, the court

clearly considered, and grappled with, the seriousness of Appellee’s conduct

in brandishing a firearm and the significant impact that action had on the

victims. See N.T. Reconsideration, 5/5/23, at 13 (noting that the fact

Appellee pointed a gun “did not sit well with” the court and it “was one of the

most serious considerations that th[e c]ourt had. . . . I can’t imagine the fear

that that conduct by the defendant, how that impacted the victims. . . , and

-5- J-S42020-23

so I have thoroughly considered that”); id. at 17 (“I do recall that I struggled,

because I did not want to unnecessarily give him a mitigated range sentence,

because . . . in the [c]ourt’s estimation the use of a firearm takes things to

the next level[.]”).

Thus, the certified record indicates that the trial court considered all

necessary factors and fashioned a sentence it deemed appropriate.

Accordingly, we discern no abuse of discretion on the trial court’s part. See

Commonwealth v. Torres, 303 A.3d 1058, 1065 (Pa.Super. 2023) (“Where

the trial court is informed by a PSI, it is presumed that the court is aware of

all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed.” (cleaned

up)).

Next, the Commonwealth argues that the trial “court abused its

discretion in refusing to consider relevant evidence on whether or not the

Wellness Ranch . . . Appellee attended was sufficiently ‘custod[ial]’” for

purposes of time credit. Commonwealth’s brief at 13-14 (capitalization

altered). It contends that the trial court simultaneously rejected the evidence

it attempted to offer at the reconsideration hearing and denied its request for

a continuance to obtain more evidence in that regard. Id. at 13. While

seemingly an evidentiary issue, the crux of the Commonwealth’s argument

concerns the trial court’s decision to grant credit while “refusing to consider

relevant evidence on whether or not the [Wellness Ranch] was sufficiently

‘custod[ial]’ under the Sentencing Code.” Id. at 14.

-6- J-S42020-23

Credit for time served is governed by 42 Pa.C.S. § 9760, which provides

in pertinent part as follows:

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 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. § 9760(1). If the conditions of § 9760(1) “are met, then the

defendant is entitled to credit as of right.” Commonwealth v. Nobles, 198

A.3d 1101, 1106 (Pa.Super. 2018) (cleaned up). Even if those conditions are

not met, a court may still award credit in its discretion. Id. at 1110-11.

Specifically regarding credit for inpatient treatment, we have 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 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)

(cleaned up).

Here, Appellee sought fifty-nine days of credit for his voluntary

admission into two rehabilitation programs at the Wellness Ranch. In support

of this request, he submitted two letters from the facility confirming the dates

of his enrollment. As to the restrictiveness, the letters stated that the

Wellness Ranch is a “long-term residential care facility for men and women

-7- J-S42020-23

with chemical dependency. It is a structured environment with 24-hour

monitoring and urine screening as well as daily groups, individual therapy,

and daily AA meetings.” Sentencing Memorandum, 4/6/23, at Exhibit B

(Malibu Wellness Ranch letter, 3/24/23).

At Appellee’s original sentencing hearing, there was no testimony

regarding the restrictiveness of the facility’s program and the court provided

no explanation of its reasoning for granting the request for credit. The

Commonwealth was represented by a substitute attorney who attempted to

convey the assigned attorney’s notes to the court. In doing so, she stated

that she was “not clear on the – I’m assuming you’re looking to give him, or

argue for time credit for in-patient, but I’m not clear on what that number is.”

N.T. Sentencing, 4/12/23, at 6. After the number was calculated, she

provided the court with a recommendation of “an aggregate of [three] to

[twenty-three] plus [two] years [of] probation, with the time credit for the in-

patient and the incarceration.”2 Id. at 8.

____________________________________________

2 It appears that the Commonwealth was recommending Appellee receive credit for his inpatient treatment. If so, it was inappropriate to thereafter complain that the court did as it asked. However, we will assume for the sake of argument that the Commonwealth was not suggesting that Appellee be credited for his inpatient treatment at the sentencing hearing, but instead was stating what it believed the court would do with the requested time credit. See N.T. Reconsideration, 5/5/23, at 18 (Commonwealth arguing that during the sentencing hearing the substitute attorney “didn’t agree” with awarding time credit, but “left it to the [c]ourt’s discretion”).

-8- J-S42020-23

In a post-sentence motion, the Commonwealth’s regularly-assigned

attorney for this case challenged the court’s decision to award time credit

because Appellee had not sufficiently established the restrictiveness of the

Wellness Ranch. At the reconsideration hearing, the trial court placed the

burden upon the Commonwealth to establish that the facility’s purported

laxness should deprive Appellee of credit for time spent receiving treatment

there. See N.T. Reconsideration, 5/5/23, at 11-12 (asking the

Commonwealth if it had any information about the program and what was

required of Appellee); id. at 13 (“[I]f you want me to not give him credit give

me something more than a webpage[.]”). The Commonwealth attempted

unsuccessfully to introduce portions of the facility’s webpage in support but

did not otherwise admit evidence or testimony regarding the treatment

Appellee received. Likewise, Appellee proffered no testimony regarding his

program of care.

The trial court noted that the Commonwealth did not oppose the award

at sentencing and that, despite other defendants having been awarded credit

for inpatient treatment at the Wellness Ranch in the past, this was the first

time the Commonwealth was challenging the court’s discretion in that regard.

Id. at 18-19. The court respected the Commonwealth’s unique position in

this case given Appellee’s use of a firearm in the underlying offense but held

that if the Commonwealth was “going to file a motion where you’re contesting

[credit], then you better have the facts to back that up and you don’t.” Id.

-9- J-S42020-23

at 19. Therefore, the court upheld its award of credit for time spent at the

Wellness Ranch. Id. at 23-24 (“I have not heard anything that tells me that

the treatment, the inpatient treatment, that he should not receive credit.”).

The certified record reveals that the court was satisfied, based upon its

familiarity with the Wellness Ranch and the letters from the facility on

Appellee’s behalf, that he deserved credit for the treatment he received. While

we agree with the Commonwealth that Appellee did not demonstrate that he

was entitled to time credit as of right, the Commonwealth has nonetheless

failed to establish that the court abused its discretion in granting credit under

these circumstances. See Toland, 995 A.2d at 1250-51.

Insofar as the Commonwealth contends that the trial court erred in

failing to grant it a continuance at the reconsideration hearing to obtain

evidence to support its argument regarding credit, we note that the

Commonwealth did not attempt to contact anyone from the Wellness Ranch

before or after filing the post-sentence motion. Therefore, we find that the

court did not abuse its discretion in denying the Commonwealth’s continuance

request. See Commonwealth v. Bozic, 997 A.2d 1211, 1225 (Pa.Super.

2010) (“Appellate review of the trial court’s decisions on continuance motions

rests on an abuse of discretion standard.” (cleaned up)).

Based on the foregoing, we conclude that the Commonwealth has

provided no basis for us to disturb Appellee’s judgment of sentence.

Judgment of sentence affirmed.

- 10 - J-S42020-23

Judge Stabile joins.

Judge Dubow files a Concurring Memorandum.

Date: 6/6/2024

- 11 -