Com. v. Crews, R. ( 2022 )

J-S13022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RONALD LINWOOD CREWS :
:
Appellant : No. 1014 MDA 2021
Appeal from the Order Entered April 23, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005295-2016
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED AUGUST 22, 2022
Appellant, Ronald Linwood Crews, appeals from the order entered in the
York County Court of Common Pleas, which denied his motion to apply credit
for time spent on supervised bail to the underlying sentence for driving under
the influence—general impairment (“DUI”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
A jury trial was held in the instant matter on May 17, 2017.
At trial, [Appellant’s] arresting officers testified that on April
18, 2016, at 9:24 p.m., they observed [Appellant’s] light
blue Cadillac sedan double-parked in the middle of the
northbound travel lane of Pershing Avenue in York. The
vehicle’s engine was off, but its hazard lights were activated.
The officers, who were on-duty in a marked police cruiser,
testified that [Appellant’s] vehicle was positioned in the road
in a way that no traffic could travel by him without first
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(a)(1).
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having to cross a double-yellow line. As soon as the officers
pulled up behind [Appellant’s] vehicle, he started the
Cadillac’s engine and pulled away. The officers yelled for
[Appellant] to stop and he obeyed. When they approached
the driver’s side door of [Appellant’s] car, the officers
noticed that a female juvenile was in the front passenger
seat and a male juvenile was in the rear passenger-side
seat. The passengers, aged 8 and 10, were [Appellant’s]
children.
One of the officers removed [Appellant] from his vehicle and
noticed that he could not maintain his balance, had slurred
speech, could not follow directions, looked disheveled, had
bloodshot/glassy eyes, and that his breath smelled strongly
of alcohol. The officers found unopened beer inside the
vehicle. After performing very poorly on field sobriety tests,
[Appellant] admitted to the officers that he had been
drinking. At that point, the officers concluded that
[Appellant] was under the influence of alcohol and that it
was unsafe for him to drive; they placed him under arrest
for suspected DUI.
Commonwealth v. Crews, No. 1171 MDA 2017, unpublished memorandum
at 1-2 (Pa.Super. filed January 24, 2018) (internal footnote and record
citations omitted).
On June 27, 2017, the court sentenced Appellant to five years of county
intermediate punishment. (See N.T. Sentencing Hearing, 6/27/17, at 12).
The court also imposed the following conditions for the term of intermediate
punishment:
The sentence is [six] months’ incarceration in York County
Prison with no objection from the court if [Appellant] wishes
to participate in the work release program and follows all
the rules and regulations of the prison regarding that
program.
That is followed by 90 days of electronically monitored
house arrest and alcohol monitoring. This is followed by 90
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days of Avertest. The fine is a total of $2,800.00.
[Appellant] is ordered to pay all costs. All standard terms
and conditions [of] IP supervision here in York County
pertaining to DUI apply.
I'm going to add this: [Appellant] should be subject to
random drug testing throughout the period of supervision,
plus [Appellant] shall perform 100 hours of community
service.
(Id. at 14-15).
Appellant timely filed a notice of appeal and motion for bail. The court
granted Appellant’s request and placed him on supervised bail during the
pendency of the appeal. The court also stayed Appellant’s sentence. On
January 24, 2018, this Court affirmed the judgment of sentence and permitted
counsel to withdraw. We remitted the record on March 5, 2018. At that point,
Appellant should have begun to serve the incarceration portion of his
sentence. Appellant, however, did not report to the county prison.
After some delay, the court learned about Appellant’s status and ordered
him to report to York County Prison on August 21, 2020. (See Order, filed
8/12/20). Appellant failed to report, and the court issued a bench warrant on
August 26, 2020. Appellant was brought before the court to address the
warrant on January 26, 2021, and the court ordered him to remain in the
custody of York County Prison pursuant to the underlying DUI sentence.
On March 31, 2021, Appellant filed a counseled motion to modify
sentence. In it, Appellant asked the court to reduce his remaining
probationary sentence by two years, five months, and six days, which
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Appellant calculated as the amount of time spent on supervised bail between
the end of his direct appeal and the entry of the order directing him to report
to prison.2 The court denied Appellant’s motion on April 23, 2021.
Despite having counsel of record, Appellant timely filed a pro se notice
of appeal on May 20, 2021.3 On August 6, 2021, this Court remanded the
matter for a hearing to determine the status of Appellant’s representation.
See Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). Ultimately,
the trial court conducted a hearing and appointed the public defender’s office
to represent Appellant. On October 25, 2021, the court ordered Appellant to
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2 Although Appellant styled the filing as a motion for clarification of sentence,
the court noted that the requested relief “was to change/modify [Appellant’s]
sentence as opposed to clarifying his sentence.” (Trial Court Opinion, dated
12/1/21, at 2 n.1). Therefore, the court treated the filing as a motion to
modify sentence. (See id.) Regarding the timeliness of the filing, we
emphasize that a court “has inherent power to at any time terminate
continued supervision [or] lessen the conditions upon which an order of
probation has been imposed….” 42 Pa.C.S.A. § 9771(a) (emphasis added).
Because a court possesses the power to lessen the conditions of probation “at
any time,” we conclude that Appellant properly filed his motion seeking to
invoke the court’s power. See id. See also Commonwealth v. Nicely, 536
Pa. 144, 152, 638 A.2d 213, 217 (1994) (stating trial court possessed
jurisdiction to modify defendants’ probation conditions; probation order is
conditional by its very nature; as such, court may lessen or increase conditions
of probation at any time).
3 Appellant remained incarcerated at York County Prison when he attempted
to file the pro se notice of appeal, which was postmarked May 20, 2021.
Consequently, we consider the appeal timely filed. See Commonwealth v.
Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46
A.3d 715 (2012) (explaining prisoner mailbox rule provides that pro se
prisoner’s document is deemed filed on date he delivers it to prison authorities
for mailing).
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file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant timely filed his Rule 1925(b) statement on November 15, 2021.
Appellant now raises one issue for our review:
Whether the trial court abused its discretion in denying
[Appellant’s] motion to modify sentence where [Appellant]
remained on supervised bail with alcohol monitoring for over
two years after his direct appeal concluded, and the
interests of justice and fundamental fairness require
crediting this period against [Appellant’s] remaining terms
of house arrest and probation?
(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. Issues relating to the legality
of a sentence are questions of law.” Commonwealth v. Gibbs, 181 A.3d
1165, 1166 (Pa.Super. 2018) (internal citations omitted). “Our standard of
review over such questions is de novo and the scope of review is plenary.”
Id.Appellant argues the trial court should have reduced his remaining
probationary sentence due to the time he spent on supervised bail between
the end of his direct appeal and the entry of the order directing him to report
to prison. Appellant maintains that his liberty was “significantly restricted
during this lengthy period of supervised bail,” and “the interests of justice and
fundamental fairness” require that he receive credit against the remaining
term of his sentence. (Appellant’s Brief at 12). Appellant concedes that he
did not discover “any decisions on whether a sentence should be reduced
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under the exact circumstances present here,” but he insists that “Pennsylvania
courts have awarded credit against sentences in similarly unusual
situations….” (Id. at 15). Appellant concludes the court erred in denying his
motion to modify sentence. We disagree.
Generally, the Pennsylvania Sentencing Code governs credit for time
served as follows:
§ 9760. Credit for time served
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(1) (emphasis added).
In Commonwealth v. Blair, 699 A.2d 738 (Pa.Super. 1997), this Court
addressed a defendant’s entitlement to credit for time spent on bond pending
appeal. There, the trial court sentenced the defendant to 24 to 60 months’
imprisonment, followed by 10 years of probation. The defendant appealed,
and he was free on bond pending appeal. This Court affirmed the judgment
of sentence, and we remanded the record on May 31, 1994. At that time, the
trial court believed the defendant had already begun to serve his prison
sentence. Nevertheless, the defendant “remained free on bond because his
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bond papers … were missing from the record.” Id. at 739. The court did not
discover the defendant’s status until September 1996, and it promptly ordered
the defendant to begin serving his sentence.
The defendant appealed, arguing that he was “entitled to credit for the
period of time that he erroneously remained free….” Id. This Court disagreed
and found “no Pennsylvania authority allowing for either credit towards
sentence or discharge under these circumstances, i.e., where a defendant has
erroneously remained at liberty for an extended period of time before being
ordered to commence sentence.” Id. at 740. Additionally, this Court noted:
We will not allow the court system’s inadvertent error to
cancel any part of Blair’s punishment for the crimes for
which he was justly convicted and sentenced. Society has
an interest in knowing that its criminals are serving the
punishment to which they have been sentenced, regardless
of an unintended delay or negligent error attributable to the
government. The fact remains that, regardless of the delay,
Blair has not served the time he was so ordered to serve.
Id. at 743.
In Commonwealth v. Kyle, 582 Pa. 624, 874 A.2d 12 (2005), a jury
convicted the defendant of multiple DUI counts. The court sentenced the
defendant to two years of county intermediate punishment, with the first two
months to be served in prison. The defendant appealed. The court permitted
the defendant to remain on bond pending appeal, but it also placed him in the
supervised bail program “utilizing home confinement with electronic
monitoring.” Id. at 627, 874 A.2d at 14.
This Court affirmed the conviction. Thereafter, the defendant filed a
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“motion for clarification of sentence, requesting credit for the 268 days he had
spent on electronic monitoring toward the two-month imprisonment portion
of his sentence.” Id. The court denied the defendant’s request. Ultimately,
our Supreme Court agreed that the defendant was not entitled to credit under
the circumstances:
Today, we make clear that time spent on bail release,
subject to electronic monitoring, does not qualify as custody
for purposes of Section 9760 credit against a sentence of
incarceration. As this author noted in [Commonwealth v.
Chiappini, 566 Pa. 507, 782 A.2d 490 (2001)]:
[T]he reality here is that [the defendant] was subject
to the home confinement/electronic monitoring
program as a condition of his release on bail. Bail is
neither a form of, nor in any way synonymous with,
custody or imprisonment; rather, it is a form of
release from custody.
Id. at 638, 874 A.2d at 20-21.
Instantly, this Court affirmed Appellant’s judgment of sentence in 2018,
but he subsequently remained on supervised bail for close to two and one-half
years without reporting to prison to serve the incarceration portion of his
sentence. After the court finally ordered Appellant to report to the county
prison, he requested a reduction in his probationary sentence to correspond
with the amount of post-appeal time spent on supervised bail. The court
denied Appellant’s request concluding that “[s]upervised bail is not a
sentence, is not part of the sentence imposed on [Appellant], and is not the
same as intermediate punishment.” (Trial Court Opinion at 4).
Based upon our review of the relevant caselaw, we agree that the time
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spent on supervised bail does not warrant a reduction in Appellant’s remaining
term of probation. Our Supreme Court has emphasized that a defendant on
bail is not in “custody” for purposes of Section 9760. See Kyle, supra.Moreover, society has an interest in knowing that Appellant serves the
punishment to which he was sentenced, “regardless of an unintended delay”
in carrying out said punishment.4 See Blair, supra. Therefore, we affirm the
order denying Appellant’s motion to modify sentence. See Gibbs, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2022
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4 Appellant principally relies on Commonwealth v. Kriston, 527 Pa. 90, 93,
588 A.2d 898, 899 (1991), for the proposition that “[c]onsiderations of
fundamental fairness require that [a defendant] be given credit for time he
served in [a home monitoring] program.” Nevertheless, Kriston is
distinguishable because it involved a situation where the defendant “was
assured by prison authorities that time spent in the monitoring program
would count towards his minimum sentence.” Id. at 97, 588 A.2d at 901(emphasis in original). Under such circumstances, our Supreme Court
concluded that the denial of credit for time served in home monitoring “would
constitute a manifest injustice.” Id. at 98, 588 A.2d at 901. Here, Appellant
cannot point to the same type of “assurances” that existed in Kriston.
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