Com. v. Servey, T.

• Court: Superior Court of Pennsylvania
• Decided: March 11, 2019
• Docket: 773 WDA 2018
• Status: Unpublished

Opinion

J. S58041/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : THOMAS EDWARD SERVEY, : No. 773 WDA 2018 : Appellant :

Appeal from the Judgment of Sentence, February 7, 2018, in the Court of Common Pleas of Clarion County Criminal Division at No. CP-16-CR-0000509-2016

BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 11, 2019

Thomas Edward Servey appeals from the February 7, 2018 judgment

of sentence entered by the Court of Common Pleas of Clarion County

following his conviction of rape (forcible compulsion), statutory sexual

assault, aggravated indecent assault, corruption of a minor, and indecent

assault.1 After careful review, we affirm.

The Commonwealth charged appellant with, inter alia, the

above-referenced crimes on October 19, 2016. On June 13, 2017, appellant

filed a motion for nominal bail pursuant to Pa.R.Crim.P. 600. The trial court

granted appellant’s motion on June 19, 2017, subjecting appellant to house

arrest with electronic monitoring. The trial court also ordered appellant to

1 18 Pa.C.S.A. §§ 3121(a)(2), 3122.1(b), 3125(a)(8), 6301(a)(1)(ii), and 3126(a)(8), respectively. J. S58041/18

pay the costs of supervision. Following trial, the jury convicted appellant of

the above-referenced crimes on August 28, 2017.

The trial court sentenced appellant to an aggregate term of 11 to

33 years’ imprisonment on February 7, 2018. On February 12, 2018,

appellant filed a post-sentence motion. Appellant then filed a motion for

leave to file an amended post-sentence motion, accompanied by an

amended post-sentence motion on April 2, 2018. The trial court granted

appellant’s motion for leave to file an amended post-sentence motion on

April 3, 2018. On April 27, 2018, the trial court denied both appellant’s

post-sentence motion and amended post-sentence motion.

Appellant timely filed a notice of appeal to this court on May 23, 2018.

The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on May 25, 2018.

On June 13, 2018, appellant complied with the trial court’s order. The trial

court filed an opinion pursuant to Pa.R.A.P. 1925(a) on June 18, 2018.

Appellant raises the following issue for our review:

Did the trial court err in denying [appellant’s] request for credit for time served while on house arrest when [appellant] was required to pay the costs of house arrest in order to be released on “nominal bail” pursuant to Pa.R.Cr[im.]P. [] 600?

Appellant’s brief at 4.

A claim asserting that the trial court failed to award credit for time served implicates the legality of the sentence. Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa.Super. 2009). Issues relating to the

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legality of a sentence are questions of law. Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa.Super. 2016). Our standard of review over such questions is de novo and the scope of review is plenary. Id.

Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa.Super. 2018).

In Commonwealth v. Sloan, 907 A.2d 460, 468 (Pa. 2006), our

supreme court held that a court may impose nonmonetary conditions,

including house arrest and electronic monitoring, on a defendant released on

nominal bail pursuant to Pa.R.Crim.P. 600. A defendant is entitled to credit

for time served “for all time spent in custody as a result of the criminal

charge for which a prison sentence is imposed . . . . 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) (emphasis

added). In his brief, appellant concedes that time spent on house arrest

does not qualify for time-served credit. (See appellant’s brief at 9, citing

Commonwealth v. Kyle, 874 A.2d 12, 20 (Pa. 2005).)

Appellant, however, argues that equity requires that he be granted

credit for time served, citing Commonwealth v. Kriston, 588 A.2d 898

(Pa. 1991). (Appellant’s brief at 9.) Kriston is distinguishable from the

case presently before us. The defendant in Kriston was assured by prison

officials that his time spent on electronic home monitoring would be credited

to him as time served. Kriston, 588 A.2d at 901. Our supreme court held

that denying the defendant credit for his time spent on electronic home

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monitoring where prison officials assured him that he would receive credit

would “constitute a manifest injustice.” Id.

Appellant does not allege that any law enforcement official promised

him credit for time served on electronic home monitoring. Rather, appellant

argues that the trial court’s requirement that appellant pay costs associated

with his house arrest and electronic monitoring were tantamount to a

monetary condition being placed on his nominal bail and that he is,

therefore, entitled to either credit for time served while he was on house

arrest or, in the alternative, that he is entitled to a refund of his payments

for electronic monitoring. (Id. at 10-12.) Appellant’s argument misses the

mark.

In Commonwealth v. Nicely, 638 A.2d 213 (Pa. 1994), the

defendants were ordered to pay administrative costs associated with their

probation or enrollment in the Accelerated Rehabilitation Disposition

Program (“ARD”).2 Id. at 214. Both defendants petitioned the trial court

requesting relief from payment, averring that the imposition of

administrative costs, inter alia, “imposed greater punishment than was set

forth at the time the punishable act was committed; and violated their right

to due process.” Id. at 215. Our supreme court ultimately concluded that

administrative costs associated with probation are “not intended to be

2Nicely decided two consolidated cases involving a defendant being placed on probation following a guilty plea and another defendant enrolling into ARD. Id. at 214.

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punitive or otherwise interfere with the probation order of the court.” Id. at

217.

We find that the trial court’s imposition of the costs of pretrial

supervision on appellant is tantamount to the administrative costs

contemplated by the Nicely court. Therefore, we extend the conclusion

reached in Nicely to hold that administrative costs of pretrial electronic

home monitoring imposed by the trial court did not interfere with appellant’s

nominal bail and were not a monetary condition of bail. Accordingly,

appellant is not entitled to credit for time served, nor is he entitled to a

refund of his payments for pretrial electronic monitoring.

Judgment of sentence affirmed.

Murray, J. joins this Memorandum.

Olson, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/11/2019

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