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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.
AHMED NABIL DARWISH, Appellee No. 3647 EDA 2016
Appeal from the Judgment of Sentence September 1 , 2016 in the Court of Common Pleas of Monroe County Criminal Division at No.: CP

- 45

- CR

- 0002402

- 2015

BEFORE: BOWES, J., LAZARUS, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED OCTOBER 31, 2017 The Commonwealth of Pennsylvania appeals from the judgment of sentence imposed on Appellee, Ahmed Nabil Darwish, following his entry of a guilty plea to one count of retail theft. 1 We affirm. We take the following relevant facts and procedural history from our independent review of the certified record. On January 20, 2016, Appellee entered an open guilty plea to retail theft, a charge that arose from his taking of two containers of creatine s upplements from a retail store in Mount Pocono , Pennsylvania in July 2015. The trial court deferred sentencing pending preparation of a pre

- sentence investigation report (PSI) . Upon petition by

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3929(a)(1).J

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Appellee, and with the express concurrence of the Commonweal t h, the court modified his bail “to $10,000.00 unsecured with the additional condition that [Appellee] be released directly to the Salvation Army Adult Rehabilitation Facility located in Harrisburg, Pennsylvania [(SAR program)] effective January 21, 2016.” (Order Accepting Guilty Plea , 1/22 /16 ; see also Commonwealth’s Concurrence, 1/19/16 ). Appellee entered the six

- month , in

- patient drug rehabilitation program on the day after he entered the plea, but was discharged unsuccessfully on May 2, 2016, after a curfew violation and positive urine screen. ( See PSI, 2/09/16, at 2, 4c , 5 ). He absconded, failed to appear at sentencing, and was later arrested on new charges. On September 1, 2016, the trial court sentenced Appellee in the aggravated range to a term of not less than nine nor more than twenty

- four months’ incarceration, with credit for 108 days’ time served. 2 On September 12, 2016, Appellee filed a motion for reconsideration of sentence. On September 20, 2016, following a hearing, the court entered an order denying Appellee’s motion for reconsideration, but taking under advisement his request for additional credit for his time in the SAR program . On October 28, 2016, the court entered an order amending Appellee’s sentence to reflect a time credit of 207 days , based on its determination that he should rece ive

____________________________________________ 2 The court ran the sentence consecutive to another sentence on a s eparate retail theft conviction, for an aggregate term of not less than eighteen nor more than forty

- eigh t months ’ incarceration.J

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credit for time spent in the SAR program. ( See Or der, 10/28/16). This timely appeal followed. 3
The Commonwealth raises one issue for our review: Whether the [trial] court abused its discretion in granting [Appellee] time credit for unproven time spent in an in

- patient rehabilitation facility after he e ntered the program voluntarily, absconded from treatment prior to completion, willfully failed to appear for sentencing, and used illegal drugs and committed additional violent crimes while wanted in spite of the agreement that he would only receive credit for successful completion? (Commonwealth’s Brief, at 5). Initially, we note that the Commonwealth challenges the discretionary aspects of Appellee ’s sentence. See Commonwealth v. Shull , 14 8 A.3d 820, 847 n. 14 (Pa. Super. 2016). Because the Commonwealt h has timely appealed, preserved its issue in the tri al court, included a Rule 2119(f) statement in its brief, and raised substant ial question, we will review its claim on the merits , employing an abuse of discretion standard of review. See id. ; see also Pa.R.A.P. 2119(f); Commonwealth v. Knox , 165 A.3d 925, 929 (Pa. Super. 2017) (setting forth prerequisites for merits review of discretionary aspects of sentence claim).

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. In this context, an abuse of discretion

____________________________________________ 3 The Commonwealth filed a timely, court

- ordered concise statement of errors complained of on appeal on November 29, 2016. The trial court entered an opinion on January 10, 2017. See Pa.R.A.P. 1925.J

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- is not shown merely by an error in judgment. Rath er, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwe alth v. Toland , 995 A.2d 1242 , 1248 (Pa. Super. 2010), appeal denied , 29 A.3d 797 (Pa. 2011) (citations omitt ed). In the instant case, the Commonwealth argues that the trial court

a bused its discretion in granting Appellee credit for the time he voluntari ly spent in the SAR program

. ( See Commonwealth’s Brief, at 11

- 18). It maintains that the award of credit was improper where : Appellee failed to complete the program and absconded; the amount of time he spent at the facility was unsubstantiated; and it violated the parties’ plea agreement . ( See id. at 16

- 18). We disagree.

“ The Sentencing Code provides that a defendant shall receive credit for all time spent in custody prior to trial [

. ] ” Toland , supra at 1248. In releva nt part, section 9760 provides: § 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 t rial, during trial, pending sentence, and pending the resolution of an appeal. 42 Pa.C.S.A. § 9760 (1)

.J

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The principle underlying [Section 9760] is that a defendant should be given credit for time spent in custody prior to sente ncing for a particular offense.

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 l ittle 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, defin es 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.
Courts have interpreted the word ‘custody,’ as used in Section 9760, to mean time spent in an institutional set ting such as, at a minimum, an inpatie nt alcohol treatment facility. Shull , supra at 847 (citations and some quotation marks omitted).
In Toland , supra , thi s Court examined how our case law distinguishes whether credit for time ser ved should be gran ted or denied for stays in inpatient treatment facilities . The Court stated:

. . . [W]hether 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 pr e - 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. Toland , supra a t 1250

– 51 (citations omitted ; emphasis added ); s ee also Commonwealth v. Cozzone , 593 A.2d 860, 867

- 68 ( Pa. Super. 1991)J

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( concluding that defendant who entered rehabilitation facility as condition of bail in order t o avoid pre

- trial imprisonment did not voluntarily admit himself and was entitled to time credit). Toland involved a third

- time DUI offender facing a one

- year mandatory
sentence who requested 354 days’ credit for pret rial detention served at two costly inpat i ent rehabilitation facilities. See Toland , supra at 1243, 1247

- 48, 1252

- 53. Despite language in the magisterial district judge ’s bail information directing the defendant to enter an inpatient treatment program , the trial court nonetheless determined tha t he voluntarily entered , where he did not enter treatment until one full month after his release on bail, and he specifically explained that he checked in “voluntarily” to “ save [ his ] life. ” Id. at 1251; see id. at 1247. T he trial court deni ed credit for time served, and this Court affirmed, stating:

. . . [W]e cannot ignore the trial court’ s cogent argument that allowing appellant credit in this case would invite defendants who can afford extended stays in inpatient rehabilitation facilitie s to “game the system.” Most defendants cannot afford to pay in excess of $100,000 and continue their cases indefinitely while they “rehab” at addiction facilities in Oregon and Arizona. The trial court states that “If this Court were to allow credit for time spent in rehab in this case, the Court could not look similarly si tuated defendants in the eye.” We also observe that it is a common th read throughout the trial court’ s opinion that appellant was purposely trying to avoid a mandatory sentence of inc arceration by taking advantage of a perceived “loophole” in the law, i.e. , by delaying his case and remaining in inpatient treatment until the mandatory minimum 12

- month sentence had nearly expired. Such conduct should not be countenanced.J

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- Certainly the trial court is in a bette r position to observe appellant’ s demeanor and decide whether his efforts were sincere and not simply a ploy to avoid the mandatory sentencing penalties for repeat DUI offenders.

. . . Id. at 1253 (record citations omitted).
Here , in contrast to Toland , there is no indication in the record that Appellee admi tted himself into an exclusive , costly rehabilitation facility to take advantage of a loophole in the law , or that there was any delay between his release on bail and entry into the facility

. Both parties and the trial court were aware of Appellee’s need for treatment for his long

- term struggle with drug addiction , and the record indicates that the SAR program was modest and community based, designed to “meet the basics of a person’s needs[,]”
not a type of “scenic [] getaway” described in Toland

. Toland , supra at 1252 ; (Petition to Modify B ail, 1/19/16, at Exhibit A, SAR Intake Letter); ( S ee also N.T. Guilty Plea, 1/20/16, at 10

- 11, 13; PSI at 4c , 6 ). Further , the trial judge , who was in the best positi on to assess the circumstances, specifically found that Appellee did not volu ntarily enter the SAR program. ( S ee Trial Court Opinion, 1/10 /1 7 , at unnumbered pages 3

- 4 ). Instead , Appellee entered the program as an express condi tion of his bail pending sentencing . ( See Order Accepting Guilty Plea , 1/22/16). Thus, we conclude that Appellee was ordered into inpatient treatment by the trial court, and i s entitle d to credit for that time against his sentence. See Toland , supra at 1250

– 51; Cozzone , supra at 867

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. Furthermore, even if we deemed Appellee ’ s commitment to the SAR
program voluntary, we discern no abuse of discretion in the trial court’sJ

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approval of time credit. See Toland , supra a t 12 51. Although Appellee failed
t o complete the treatment program and absconded, it is clear from the record that the court fully considered these factors in sentencing him to an aggravated

- range sentence , which it ran consecutively to a second retail theft
conviction , for a leng thy aggregate sentence

. ( See N.T. Sentencing, 9/01/16,
at 13

- 15). With respect to the Commonwealth’s assertion that the court speculated regarding the amount of time Appellee actually spent in the SAR program, we find this claim disingenuous, where the re cord plainly reflects that he participated in the program from January 21, 2016 until May 2, 2016. ( See Order Accepting Guilty Plea , 1/2 2/16; N.T. Guilty Plea, at 14; PSI at 2, 4c, 5 ; see also Commonwealth’s Brief, at 16

- 17). Finally, we acknowledge the C ommonwealth’s argument that its consent to Appellee’s participation in the SAR program was premised on the court’s award of time credit for successful completion only, and that the “court’s refusal to honor this agreement deprives the Commonwealth of the b enefit of the bargain i n its plea agreement.” (Commonwealth’s Brief, at 18). However,

o ur review of the guilty plea proceedings demonstrates that the issue of time credit was not raised at that time

. ( See N.T. Guilty Plea, at 9

- 14; see also Order Accepting Guilty Plea, 1/22 /16; Commonwealth’s Concurrence, 1/19/16; Guilty Plea and Colloquy, 1/22/16). Therefore , the record b elies the Commonwealth’s claim.J

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In sum , we conclude that the record supports the trial court’s decision to credit Appell ee for the time he spent in the SAR program , and we discern no abuse of discretion in its disposition of this issue. Accordingly, we af firm the judgment of sentence. Judgment of sentence affirmed. Judge Bowes joins the Memorandum. Judge Lazarus files a Di ssenting Memorandum. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/31/2017