Com. v. Gerow, Jr., G. ( 2014 )

J-S56029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY L. GEROW JR.
Appellant No. 193 MDA 2014
Appeal from the Judgment of Sentence of December 2, 2013
In the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000517-2013
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 23, 2014
1
judgment of
sentence. Because Gerow was entitled to credit for time served in an
inpatient treatment facility as a condition of his bail, we vacate the judgment
of sentence and remand with instructions.
On May 14, 2013, Gerow grabbed a purse from an eighty-six-year-old
woman who was walking home from church. Approximately twelve days
later, Gerow went to the police station because he was aware that he was
wanted for questioning. Gerow admitted to the police that he stole the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although the trial court states that Gerow was sentenced on December
5, 2013, the docket reflects December 2 as the date sentence was imposed.
J-S56029-14
receiving stolen property.2
On June 26, 2013, Gerow was released on pre-trial bail. Among the
6/26/2013, at 2 (unnumbered). Gerow entered a detoxification program on
July 24, 2013, entered inpatient treatment on July 29, 2013, and was
discharged on August 14, 2013. However, he did not successfully complete
the program.3
On September 30, 2013, Gerow pled guilty to robbery graded as a
third-degree felony. On December 2, 2013, Gerow was sentenced to six to
twenty-three months of incarceration and was made eligible for work
release. The remaining charges were dismissed.
File Post-Sentence Motion to Modify Nunc Pro Tunc
alleged that he declined to file a post-sentence motion for fear of
jeopardizing his eligibility for work release. When his work release
____________________________________________
2
18 Pa.C.S.A. §§ 3701(a)(1)(v), 3921(a), and 3925(a), respectively.
3
According to his discharge summary, Gerow attended daily meetings
and education sessions, including life skills, anger management, and relapse
prevention. Gerow also participated in individual sessions. Gerow did not
any progress on goals and objectives as well as gain any kind of
Petition for Leave to File Post Sentence Motion to Modify Nunc Pro Tunc.
-2-
J-S56029-14
application was denied, Gerow sought to pursue modification of his
sentence, raising the issues of excessiveness of his sentence and failure to
credit time served at the treatment facility.
On January 27, 2014, the trial court heard argument on the motion.
On the same day, the court issued an oral order, indicating that it would
permit the motion nunc pro tunc and would treat it as timely filed. N.T. at
10. After hearing the arguments on the merits of the motion, the court
denied the request to credit time served and to modify the sentence. Id. at
11.
On January 30, 2014, Gerow filed a notice of appeal. The trial court
ordered, and Gerow timely filed, a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed its Pa.R.A.P.
1925(a) opinion.
Gerow raises two issues for our consideration:
I. Whether the sentencing court erred in failing to grant
[Gerow] credit toward his sentence for time served in an
inpatient drug and alcohol rehabilitation facility when it
was a pre-trial bail condition?
II. Whether the sentence imposed by the trial court of six (6)
to twenty-three (23) months of incarceration for one (1)
count of robbery, a [felony] of the third degree, was
excessive?
-3-
J-S56029-14
he served in the inpatient rehabilitation facility. Credit for time served is
controlled by statute, which states in pertinent part:
After reviewing the information submitted under section 9737
(relating to report of outstanding charges and sentences) the
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.A. § 9760.
Our Supreme Court addressed a similar issue in Commonwealth v.
Conahan, 589 A.2d 1107 (Pa. 1991). In Conahan, the defendant
voluntarily entered into an inpatient treatment facility following an arrest for
driving under the influence. Id. at 1108. The defendant was in the program
for ninety-five days. After his treatment was completed, the trial court
sentenced him to thirty days to one year of incarceration, provided credit for
the ninety-five days that he spent in the treatment program, and
immediately paroled the defendant. On appeal, this Court reversed, holding
not include inpatient treatment. Id.The Supreme Court disagreed and held that a defendant must be given
credit for time served in custody, pursuant to section 9760. However, the
-4-
J-S56029-14
reh Id. at 1109. The Court also
enumerated the following factors that persuaded it that the time spent in
ed the applicable statutory
program and had he not completed the program, credit would not have been
due; and the defendant had taken responsibility for his actions and
maintained sobriety. Id. Finally, the Court determined that credit for time
served was not an entitlement, but was within the discretion of the
sentencing court. The Court concluded that the sentencing court had acted
within its discretion in granting the defendant credit for the ninety-five days
spent in the treatment program. Id. at 1110.
Later that year, this Court resolved a similar issue in which
participation in the treatment program was required by the trial court as a
condition of bail. In that case, the defendant was arrested for driving under
the influence. Commonwealth v. Cozzone, 593 A.2d 860, 861 (Pa. Super.
1991). After being convicted, but before he was sentenced, the defendant
was arrested again for driving under the influence. He was released on bail
with the condition that he enter an inpatient alcohol treatment center. He
did so and stayed in treatment for thirty-two days, but was not credited for
that time when the trial court sentenced him. One of his issues on appeal
failure to credit him with those thirty-two days. Id.-5-
J-S56029-14
Reviewing prior cases that gave credit for time served in a state
hospital for a mental health evaluation and a juvenile residential drug and
alcohol treatment program, we held that the defendant had been in custody
during the time that he spent in the inpatient treatment center. Id. at 866-
67. We noted that, in Conahan, the defendant entered treatment
voluntarily, but that in Cozzone, the treatment was required as a condition
of bail. Therefore, we
Id. at 867-68.
More recently, we held that a PCRA court did not abuse its discretion in
not giving credit for twenty-five months that the defendant spent in a drug
treatment court program or the time that the defendant spent in inpatient
treatment that was ordered by the court. Commonwealth v. Fowler, 930
A.2d 586, 599 (Pa. Super. 2007). In that case, the defendant was admitted
into a drug treatment court, but ultimately his participation was revoked
based upon violations of the conditions of his treatment. Id. at 589. In not
participation in the drug court was voluntary and that the inpatient facility
Id. at 597. Based upon
these findings, we determined that there was no abuse of discretion in the
failure to give credit. Id. at 599.
Finally, in Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super.
2010), we addressed the seeming contradiction between Conahan
of discretion standard and Cozzone Toland, the
-6-
J-S56029-14
defendant, who was convicted of driving under the influence, sought credit
for the time that he served in an inpatient alcohol rehabilitation center. Id.complete [a] comprehensive in-
Id. at 1247. While on bail, the defendant was arrested for public
drunkenness. Soon after, the defendant entered a treatment program in
Oregon, followed by a second program in Arizona, for a total of 354 days.
After completing these programs, the defendant was tried and found guilty
of driving under the influence. Prior to trial, the defendant averred that he
entered the treatment programs voluntarily. Id. at 1248. In reconciling the
holdings of Conahan and Cozzone, we stated:
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. 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.
Id. at 1250-51 (citations omitted). Despite the bail information, the trial
court found that inpatient treatment was not a bail condition. We concluded
that the record supported that finding. Id. at 1251. We then affirmed the
tr
part because the treatment program in which the defendant was admitted
did not restrict or restrain his freedom. Id. at 1251-52.
-7-
J-S56029-14
Gerow urges us to follow Cozzone. He argues that treatment was a
condition of his bail and that he did not enter voluntarily. Therefore, he
asserts that he is entitled to credit. Gerow argues that his success or failure
-14.
The trial court acknowledged that Gerow entered treatment as a
the court noted that no evidence was presented that the program restricted
ourt noted that Gerow did not return to
jail after his discharge, but remained free on bail. Id. The court recognized
Cozzone, but believed that the failure to complete the program sufficiently
distinguished that case. The trial court concluded that cooperation with the
treatment program was an implicit condition of bail and that, because Gerow
did not comply with that condition, he should not receive credit. Id. at 7.
at 3.
The Cozzone Court distinguished Conahan, in which a defendant
voluntarily entered a treatment program and the court was required to
consider the characteristics of the treatment facility to determine whether
the program constituted custody. Cozzone, 593 A.2d at 867. Instead, we
freedom or to his success (or failure) in the treatment program, both of
which were highlighted in Conahan. Id. at 867-68. Therefore, to reconcile
-8-
J-S56029-14
the cases, as in Toland, we conclude that when the entry into treatment is
success in the program should
awarding credit. However, when the treatment is mandated as a condition
of bail, the involuntariness of the decision to enter treatment is sufficient in
and of itself to entitle the defendant to credit pursuant to Cozzone. Here,
the trial court found that the treatment program was a condition of bail.
should have received credit. Therefore, we vacate the judgment of sentence
and remand the case to the trial court to provide Gerow with the credit to
which he is entitled for the time he served at an inpatient treatment facility
as a condition of his bail.
In his second issue, Gerow challenges the discretionary aspects of his
sentence. Because his judgment of sentence has been vacated, this issue is
mooted.4
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
____________________________________________
4
2119(f) statement does not raise a substantial question. The statement
Sentencing Code or the fundamental norms underlying the sentencing
Commonwealth v. Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).
At best, Gerow offers a bald assertion that the court abused its discretion. A
bald assertion will not raise a substantial question.
-9-
J-S56029-14
Panella, J. joins the memorandum.
Platt, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
- 10 -