Commonwealth v. Frye , 853 A.2d 1062 ( 2004 )

KLEIN, J.

¶ 1 Brenda Frye appeals from the November 1, 2002 order denying her credit for time served on parole while on house arrest with electronic monitoring. Because Frye was effectively incarcerated during this period, entitling her to credit for time served therein, we reverse.

¶2 The trial court set forth the following factual and procedural history in its opinion pursuant to Pa.R.A.P.1925(a):

Appellant pleaded guilty to Driving Under the Influence of Alcohol and was sentenced on June 30, 2000, to a term of imprisonment for a minimum of fifteen (15) days and a maximum of twenty-three (23) months and twenty-nine (29) days. By court order dated July 11, 2000, she was paroled effective July 15, 2000. Parole was revoked on December 15, 2000, but on February 15, 2001, she was reparoled. Appellant again violated parole and was remanded to prison on June 19, 2001. A third order of parole was entered January 16, 2002, effective January 21, 2002. One of the conditions of the third parole was that Appellant would be under house arrest and subject to electronic monitoring.

The very day Appellant was released on parole, the Bradford County Probation Department learned that Appellant had secured parole by providing false information regarding her intended residence. Consequently, a revocation petition was filed that afternoon and parole was revoked on February 21, 2002.

On March 22, 2002, a fourth order of parole was entered by the undersigned judge, a decision which can only be attributed to what was, one hopes, merely temporary insanity. The fourth order of parole, like the third, provided that Appellant would be subject to house arrest and electronic monitoring. Appellant accepted the conditions. The order of parole was made effective March 22, 2002.

The Bradford County Probation Department filed another revocation petition on August 27, 2002, setting forth an extensive list of alleged parole violations. Appellant admitted her violations, and her parole was revoked on September 18, 2002. On October 29, 2002, the court heard testimony on Appellant’s request for credit for the time she was subject to house arrest and electronic monitoring. Appellant claimed that the credit she requested is mandated by Section 9760(1) of the Sentencing Code. The court’s order of November 1, 2002, denied the request.

Trial Court Opinion, 5/23/03, at 1-3 (footnote omitted). Frye filed the instant appeal from the trial court’s November 1, 2002 order.¹

¶ 3 Frye raises the following sole issue in this appeal: whether appellant should receive credit toward her maximum sentence for time spent on house arrest under electronic monitoring as a condition of parole?

¶ 4 We believe that Frye is entitled to credit on her “back time”² for all the time she spent in custody on this charge because the terms of her house arrest were sufficiently restrictive to count as custody time.

¶ 5 Section 9760 of the Sentencing Code reads, in pertinent part:

[T]he court shall give credit as follows: (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 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).

¶ 6 The Pennsylvania Supreme Court, dealing with state parole, considered the effect of time spent in a drug program at Eagleville Hospital, which is akin to an intermediate sentence of house arrest. Cox v. Commonwealth Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985). Initially, the parole board found that the time in Eagleville was “time at liberty on parole” rather than being in custody. Drawing an analogy to Section 9760, the Supreme Court said that if the time in Eagleville was the “equivalent of incarceration entitling him to credit for the time spent in the program,” he was entitled to credit. Id. at 682 n. 5. The case was remanded for a factual determination. Id. at 683.

¶ 7 Thus, the Supreme Court' made no distinction between time served after sentencing and time served awaiting trial, pending sentence, or during appeals. There seems to be no logical reason for making such a distinction. If a person is in a program that is the “equivalent of incarceration,” he or she should get the same credit one would get if in state prison or a county jail.

¶ 8 Likewise, in Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979), this Court determined that the conditions in Abraxas Foundation, a residential treatment facility for young offenders, were sufficiently restrictive so that time spent there while on probation should have been credited to Usher when later sentenced as a probation violator. The Abraxas facility was completely surrounded by the Allegheny National Forest, was accessible from the nearest town only by six miles of dirt roads, and attendance was ensured by hourly headcounts and enforced by local police. On these bases, we found Abraxas to be the equivalent of “custody” because the defendant’s stay there was not voluntary and he could not freely leave. Id. at 1130.

¶ 9 Similarly, in Commonwealth v. Mallon, 267 Pa.Super, 163, 406 A.2d 569 (1979), this Court held that time spent in Abraxas as a condition of probation must be credited when sentenced later as a probation violator. These circumstances are the same as those in this case, where electronically-monitored house arrest was given as an intermediate punishment. Cf. Stallsmith v. Pennsylvania Dept. of Corrections, 846 A.2d 191 (Pa.Cmwlth.2004) (holding that where defendant was given split sentence of county incarceration followed by county probation, and defendant is recommitted as probation violator, defendant must be given credit for time served in county against recommitment sentence; otherwise defendant would serve illegal sentence).

¶ 10 Once it is determined that time spent in a program can be the equivalent of time spent in the county jail for purposes of credit against back time, then the tests recently set forth in Commonwealth v. Chiappini, 566 Pa. 507, 782 A.2d 490, 497 (2001) (plurality), and Commonwealth v. Vanskiver, 819 A.2d 69 (Pa.Super.2003) apply. We conclude that the time Frye spent on house arrest was clearly “time spent in custody” for purposes of the statute. Frye could not even have gone into the yard of her residence without setting off an alarm. She needed permission to leave the house or attend Alcoholics Anonymous meetings, counseling, work or other programs. Probation officers were free to enter her house and search her at any time. As such, we believe that Frye, in effect, was incarcerated albeit at her home address. We conclude that the trial court erroneously denied Frye credit for the time she served on house arrest. Order reversed.

¶ 11 BENDER, J., files a Dissenting Opinion.

1 . In Pennsylvania, those sentenced to two or more years’ incarceration fall under the jurisdiction of the Pennsylvania Board of Probation and Parole when on parole. Those sentenced to fewer than two years’ incarceration remain under the jurisdiction of the trial court when on parole. See Commonwealth v. Reese, 774 A.2d 1255, 1259-1260 (Pa.Super.2001). Accordingly, Frye's appeal from the trial court’s order denying credit for time served is properly before us.

2 . Frye was sentenced to county time. She was found to have violated her parole, not probation. Therefore, upon recommitment as a parole violator she could only be sentenced to "back time,” that is, the balance of the sentence that she had not yet served in custody. Thus, the maximum sentence that could be imposed is the balance of the original sentence minus any credit for time served.