Com. v. Maxwell

• Decision Date: 28 August 2007
• Docket Number: No. 386 WDA 2006.,386 WDA 2006.
• Citation: 932 A.2d 941
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Edward Ripley MAXWELL, Appellant.
• Court: Pennsylvania Superior Court

932 A.2d 941

COMMONWEALTH of Pennsylvania, Appellee v. Edward Ripley MAXWELL, Appellant.

No. 386 WDA 2006.

Superior Court of Pennsylvania.

Filed August 28, 2007.

Appeal from the Judgment of Sentence entered January 23, 2006, in the Court of Common Pleas of Allegheny County, Criminal, at CC No. 200204837.

Kirk J. Henderson, Pittsburgh, for appellant.

Amy E. Constantine, Asst. Dist. Atty. and Michael W. Streily, Deputy Dist. Atty., Pittsburgh, for the Com., appellee.

BEFORE: HUDOCK, TODD and TAMILIA, JJ.

OPINION BY HUDOCK, J.:

¶ 1 This is an appeal from the judgment of sentence imposed upon Appellant after his probation was revoked. We affirm.

¶ 2 Appellant originally entered a guilty plea to one count of indecent assault and one count of corruption of minors as a result of his inappropriate contact with the ten-year-old female victim.¹ At the time of sentencing, defense counsel informed the court that, given Appellant's history of voyeurism, it was important to continue mental health treatment. Thus, at the indecent assault count, the trial court sentenced Appellant to eighteen months of intermediate punishment, with electronic monitoring, during which time he was to be supervised and he was to maintain any course of treatment that he was undergoing. The court further specified that Appellant was to continue taking medication and participate in any evaluations to assess his voyeurism and pedophilia. He was also ordered to comply with any plan of recommended counseling. The effective date of the eighteen-month intermediate punishment (IP) sentence was June 6, 2003. After expiration of the IP sentence, Appellant was to begin a consecutive sentence of three and one-half years of probation. The court advised Appellant that if he violated the terms of his sentence, he could be incarcerated for ten years. He was to have no contact with the victims and/or their families except for arrangements the parties made regarding custody and supervision.²

¶ 3 On November 25, 2005, Appellant appeared before the trial court after violating his probation. He had been twice discharged from the sex offender rehabilitation program for failing to acknowledge his mental health issues and was thus guilty of technical probation violations. At the hearing, the trial court detained Appellant in the Allegheny County Jail. Appellant appeared for his probation violation hearing on January 23, 2006. The Commonwealth recommended that Appellant's probation be revoked and that he be given a state sentence. It was also noted that Appellant was entitled to twenty-six days of credit for the time he spent in the county jail.

¶ 4 The trial court stated that it considered the guideline ranges for Appellant's sentence, as well as the statements of counsel, the probation violation report, the letters from Appellant's treating mental health professionals, the fact that Appellant was unwilling to make an effort at rehabilitation, and the seriousness of the offense. The court then revoked Appellant's probation and sentenced him to two and one-half to five years of incarceration for the indecent assault conviction.³ The court acknowledged its reasons for departing from the standard range of the guidelines and advised Appellant of his post-sentence rights. The court noted that Appellant was entitled to credit for any time he already served. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

¶ 5 Appellant raises the following issue on appeal: "Is a defendant entitled to credit for time served for successfully completing a sentence of electronic monitoring?" Appellant's Brief at 4. Appellant asserts that, if he is not given credit for the time served for the intermediate punishment, his sentence to two and one-half to five years of imprisonment for indecent assault would be illegal because, in effect, he could serve up to six and one-half years for a first-degree misdemeanor, when the statutory maximum is five years. The parties acknowledge that, although Appellant did not raise this claim in the trial court, it is properly before us because the claim involves the legality of the sentence imposed and, therefore, is non-waivable. Commonwealth v. Tout-Puissant, 823 A.2d 186, 188 (Pa.Super.2003). As this Court recently has reiterated: "The issue of whether a sentence is illegal is a question of law; therefore our task is to determine whether the trial court erred as a matter of law and, in doing so, our scope of review is plenary." Commonwealth v. Evans, 901 A.2d 528, 536 (Pa.Super.2006) (citations omitted).

¶ 6 In support of his claim that he should receive credit for time served on electronic monitoring, Appellant distinguishes our Supreme Court's recent decision in Commonwealth v. Kyle, 582 Pa. 624, 874 A.2d 12 (2005), which held that a defendant may not earn credit for time served on electronic monitoring during release on bail. Appellant asserts that his period on electronic monitoring was part of his sentence for indecent assault, not a conditional release on bail or parole. Thus, Appellant contends that the concern expressed by the high court in Kyle, i.e., if credit was granted for pre-trial electronic monitoring, trial courts would be hesitant to grant it, is not present in his case because the trial court already determined that total confinement was unnecessary and that the appropriate sentence was electronic monitoring followed by a probationary term.

¶ 7 Appellant further asserts that the crucial fact in his case is that he successfully completed the intermediate punishment portion of his sentence for indecent assault. According to Appellant, had he violated the terms of the electronic monitoring portion of his sentence, it could have been revoked and he could have been sentenced "to anything up to and including the statutory maximum. Completing the sentence, however, removed the conditional nature of the sentence and made it final. Once it was final, credit has to be awarded for it." Appellant's Brief at 10. We cannot agree.

¶ 8 In his brief, Appellant quotes 16B West's Pa.Prac., Criminal Practice section 31:30 (2006) for the proposition that: "Whether in-home electronic monitoring imposed pursuant to a sentence of intermediate punishment qualifies a defendant for sentence credit remains an open question." Appellant's Brief at 12. We agree that this precise issue has yet to be addressed directly by the appellate courts in Pennsylvania. However, our Supreme Court has determined that time spent in electronic monitoring does not constitute "time spent in custody" for purposes of giving credit for time served against an actual term of incarceration. We do not find that conclusion changes, because the monitoring occurred at a different stage of the criminal process. If elective monitoring is not "time spent in custody," it matters not whether it was imposed by a sentence or a condition of bail.

¶ 9 Section 9760 of the Sentencing Code provides that a defendant is entitled to credit for "time spent in custody." As this Court has recently summarized:

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 prison.

* * *

The plain and ordinary meaning of imprisonment is confinement in a correctional or similar rehabilitative institution[.]

Commonwealth v. Fowler, 2007 PA Super 219, 930 A.2d 586, 595-96 (2007) (quoting Kyle, 874 A.2d at 17). Indeed, Pennsylvania appellate courts consistently have interpreted section 9760's reference to "custody" as confinement in prison or another institution. See e.g., Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991);⁴ Commonwealth v. Shartle, 438 Pa.Super. 403, 652 A.2d 874 (1995), appeal denied, 541 Pa. 637, 663 A.2d 690 (1995); compare Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107, 1109 (1991) (distinguishing, for purposes of sentencing credit, between time served in an institutional setting from time spent in a home monitoring program).

¶ 10 Most recently, in Kyle, supra, the Supreme Court reiterated that electronic home monitoring constituted neither imprisonment nor custody such that credit against a sentence of incarceration was warranted. In Kyle, a jury found the defendant guilty of driving under the influence. He was permitted to remain on bail pending sentencing with the condition that he maintain alcohol counseling and refrain from consuming alcoholic beverages. On September 6, 2000, the trial court imposed a structured sentence of two years in a county intermediate punishment program. Pursuant to this sentence, the defendant was to serve the first two months in prison at a prerelease program, with eligibility for in-home electronic monitoring for the last fifteen days at the pre-release center. He was also ordered to undergo treatment and to continue counseling. The defendant was granted bail pending his appeal to this Court, with the condition that he refrain from drinking alcoholic beverage. Subsequently, the Commonwealth filed a petition to revoke the defendant's bail because he had violated this condition. After a hearing, the Commonwealth and the defendant agreed to the defendant's placement within the county's intensive supervised bail program that incorporated home confinement with electronic monitoring.

¶ 11 On August 6, 2001, this Court affirmed the defendant's drunken...