Com. v. Harrigan, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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* Former Justice specially assigned to the Superior Court.
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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.
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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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