Com. v. Servey, T. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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