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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JUDITH A. HOCKENBERRY, :

: No. 1121 MDA 2013

Appellant :

Appeal from the Judgment of Sentence May 7, 2013

In the Court of Common Pleas of Cumberland County 

Criminal Division No(s).: CP-21-CR-0001038-2010

BEFORE: BOWES, OLSON, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 21, 2014

Appellant, Judith A. Hockenberry, appeals from the judgment of 

sentence entered in the Cumberland County Court of Common Pleas 

following the revocation of her intermediate punishment1(“IP”) sentence for 

 

*

Former Justice specially assigned to the Superior Court.

1 Our Supreme Court has explained:

42 Pa.C.S. § 9763(c) authorizes a sentencing court to 

impose intermediate punishment as part of a sentence for 

DUI. Pursuant to that intermediate punishment, the court 

may attach any of a number of conditions upon the 

defendant as it deems necessary. These conditions include 

. . . participation in drug or alcohol screening and 

treatment programs . . . . 42 Pa.C.S. § 9763(b)(1)-(17)[.]

Commonwealth v. Kyle, 874 A.2d 12, 13 n.2 (Pa. 2005).

The Legislature’s intent [behind the Pennsylvania County 
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driving under the influence/high rate of alcohol2(hereinafter “DUI”). 

Appellant claims the trial court misapplied the law in not awarding her credit 

for time spent in inpatient treatment as part of her IP sentence. We vacate 

the sentence and remand for the court to award credit.

The trial court summarized the procedural history of this case as 

follows. See Trial Ct. Op. 8/7/13, at 1-4. On July 27, 2010, Appellant 

pleaded guilty to DUI—third or subsequent offense and driving while 

operating privilege is suspended or revoked.3 After evaluating Appellant, a 

Cumberland-Perry Drug and Alcohol Commission case manager 

recommended long-term inpatient treatment. Id. at 1. On October 5, 

2013, the trial court imposed a sentence of five years in the IP program. 

The following day, October 6th, Appellant “was sent to Bowling Green” at 

Brandywine, an inpatient drug and alcohol rehabilitation center. Id. 

However, she was discharged on November 2nd because she was pregnant 

 

Intermediate Punishment Act, 42 Pa.C.S. §§ 9801-9813,] 

was: “to give judges another sentencing option which 

would lie between probation and incarceration with respect 

to sentencing severity; to provide a more appropriate form 

of punishment/treatment for certain types of non-violent 

offenders; to make the offender more accountable to the 

community; and to help reduce the county jail 

overcrowding problem while maintaining public safety.”

Commonwealth v. Williams, 868 A.2d 529, 534 (Pa. Super. 2005) 

(citations omitted).

2 75 Pa.C.S. § 3802(b).

3 75 Pa.C.S. § 1543(a).
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and using substances. Appellant was then sent to Gaudenzia Vantage House 

until April 1, 2011.

On November 29, 2011, the probation department filed a petition to 

revoke Appellant’s IP sentence, alleging Appellant (1) admitted using cocaine 

and drinking alcohol, (2) tested positive for cocaine twice, and (3) was 

“issued a citation for Public Drunkenness after being found to be under the 

influence of alcohol at the Wal-Mart.” Id. at 2. The court subsequently 

granted a continuance on the hearing on the petition to determine whether 

Appellant “would be allowed to participate in the Cumberland County 

Treatment Court Program.” Id. However, Appellant “did not enter the 

Treatment Court Program.” Id.

Nevertheless, the probation department later withdrew its revocation 

petition “in an effort to afford [Appellant] another opportunity to lead a 

sober life.” Id. Appellant, however, was required to: (1) undergo 

monitoring on a SCRAM bracelet for a minimum period of six months, (2) 

“complete the intensive outpatient program and the outpatient program 

[sic]” at Roxbury Treatment Center, (3) complete daily logs to account for 

her whereabouts, (4) comply with curfew requirements, (5) report to the 

probation office every Monday and Wednesday until she obtained gainful 

employment, and (6) obtain a General Educational Diploma. Id. “Initially, 

[Appellant] complied with these conditions. However, on October 14, 2012, 

[she] tested positive for using opiates and cannabinoids.” Id. at 3.
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The probation department thus filed a second petition for revocation of 

intermediate punishment on October 31, 2012. The court held a hearing on 

November 20th. Appellant

admitted that she had violated the conditions of her 

program and she was revoked from the Intermediate 

Punishment Program. . . . However, in a final effort to 

give [Appellant] a chance for a sober life, her Probation 

Officer requested that she be considered for the State 

Intermediate Punishment Program.

Id. Subsequently, however, the Department of Corrections advised the 

court that Appellant was not eligible for the state IP program “because she 

was wanted for a Violation of Probation in Tennessee based upon an arrest 

for Aggravated Assault on a Police Officer and Possession of Paraphernalia.”4 

Id.

On May 7, 2013, the trial court, after obtaining an updated 

presentence investigation report, imposed the underlying sentence for DUI: 

a standard-range sentence of sixteen to forty-eight months’ imprisonment 

with a Recidivism Risk Reduction Incentive sentence of twelve months.5 The 

court gave “credit for 260 days previously served in the county and state 

prisons.” Id. at 4. Appellant filed a post-sentence motion, requesting an 

 

4 Tennessee authorities later indicated that it would not seek extradition of 

Appellant. Trial Ct. Op. at 3.

5 Appellant was also ordered to pay costs of prosecution, a $1,500 fine, and 

$500 restitution. For driving while operating privilege is suspended or 

revoked, the court imposed costs of prosecution and a $200 fine.
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additional credit of 177 days spent in inpatient treatment as a part of her IP 

sentence. The court denied the motion, and this timely appeal followed.6

For her sole issue on appeal, Appellant claims the trial court erred by 

not granting her credit for time served in inpatient drug and alcohol 

treatment, totaling 177 days. Appellant’s Brief at 12. She alleges she was 

entitled to credit because the treatment was a mandatory, court-ordered 

condition of her original intermediate punishment sentence. Id. Appellant 

claims her inpatient treatment constituted “time spent in custody” pursuant 

to 42 Pa.C.S. § 9760(2) because it was not voluntary, she could not opt out 

of treatment, and the inpatient facilities prevented her from leaving the 

premises. Id. We hold that Appellant is entitled to relief.

We first note:

“[A] challenge to the trial court’s failure to award credit 

for time spent in custody prior to sentencing involves the 

legality of sentence[.]” It is now well-settled and

essential that the [trial] court maintain the ability to 

incarcerate persons for whom intermediate 

punishment is no longer a viable means of 

rehabilitation. Upon revocation, the sentencing 

alternatives available to the court shall be the same 

as the alternatives available at the time of initial 

sentencing. . . .

Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007) (citations 

omitted).

 

6 Appellant complied with the court’s order to file a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal.
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Section 9760 of the Sentencing Code governs credit for time served 

and provides, in pertinent part:

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) (emphasis added); see also 42 Pa.C.S. § 9773(b) 

(providing that upon revocation of county intermediate punishment

sentence, court shall consider time served in county intermediate 

punishment program).

This Court has stated: “The principle underlying Section 9760 is that a 

defendant should be given credit for time spent in custody prior to 

sentencing for a particular offense.” Fowler, 930 A.2d at 595 (citation 

omitted). While Section 9760, or any other provision of the Sentencing 

Code, does not define the phrase “time spent in custody,” “[c]ourts have 

interpreted the word ‘custody,’ as used in Section 9760, to mean time spent 

in an institutional setting such as, at a minimum, an inpatient alcohol 

treatment facility.” Id. at 596 (citations omitted).

With respect to IP, this Court has stated:

“Intermediate punishment is an alternative to total 

confinement.” Our Supreme Court has concluded that the 

Legislature intended imprisonment and intermediate 

punishment to be mutually exclusive and to be treated 

differently, noting:
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the Legislature provides that nothing in this chapter 

shall be construed as creating an enforceable right in 

any person to participate in an intermediate 

punishment program in lieu of incarceration. 42 

Pa.C.S.[A.] § 9812. Thus, the Legislature now 

clearly distinguishes between incarceration, i.e., 

imprisonment, and intermediate punishment.

Generally, it is within the trial court’s discretion whether to 

credit time spent in an institutionalized rehabilitation and 

treatment program as time served “in custody.” . . .

Id. at 596 (some citations omitted).

Our review of Pennsylvania authority has not revealed a case with the 

facts and question presented in this case—whether inpatient drug treatment 

that is part of a county IP sentence, is “custody” for credit purposes. 

However, we consider the following decisions.

In the 1991 Pennsylvania Supreme Court decision of Commonwealth 

v. Conahan, 589 A.2d 1107 (Pa. 1991), the defendant was arrested for 

DUI, “voluntarily commenced inpatient treatment for DUI, which lasted for 

ninety-five days,” and then subsequently pleaded guilty to DUI. Id. at 

1108. The trial court imposed a mandatory sentence7of imprisonment and 

gave credit for the ninety-five days of treatment. Id.

Our Supreme Court first held that the term “custody” in section 9760 

“includes time spent in institutionalized rehabilitation and treatment 

programs.” Id. at 1109. The Court then held that, in the case before it, the 

 

7 The defendant was convicted under the predecessor DUI statute, 75 

Pa.C.S. § 3731. Conahan, 589 A.2d at 1108.
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trial court properly awarded the credit, noting:

[The defendant] voluntarily and at his own expense 

entered a custodial hospital environment for well in excess 

of the applicable mandatory minimum sentence; [he] was 

restrained of his liberties during the entire time of his 

confinement in that if he had violated this custody by 

"walking away" he would not have received credit; and 

that he has taken responsibility for his alcoholism and 

maintained his sobriety through application of principles 

acquired during his rehabilitation and subsequent 

dedication to the ideology of Alcoholics Anonymous.

Id. However, the Court clarified that a DUI defendant was not entitled to 

such credit as of right, and instead, the award of credit was at the trial 

court’s discretion. Id. at 1110.

Later that same year, the Superior Court decided Commonwealth v. 

Cozzone, 593 A.2d 860 (Pa. Super. 1991). In that case, the defendant was 

convicted of DUI. Id. at 861. While awaiting sentencing, he was arrested 

and charged with DUI again. Id. As a condition for bail for the second DUI 

charge, the defendant “entered an inpatient alcohol treatment center, where 

he remained for thirty-two . . . days.” Id. He subsequently pleaded guilty 

to the second DUI charge. The court imposed sentence in both cases at the 

same hearing. Id. For the first DUI, it sentenced him to forty-eight hours 

to twenty-three months. Id. For the second DUI, it sentenced him to a 

consecutive term of thirty days to twenty-three months. Id.

On appeal, the defendant claimed the court failed to give him credit 

toward the second DUI conviction for time spent in treatment. Id. This 

Court noted that he “was permitted by the District Justice to admit himself 
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to an alcohol treatment facility in lieu of being committed to the county 

prison,” and the “admission to a treatment facility was made a condition of . 

. . bail.” Id. at 866. This Court reasoned the treatment was not voluntary 

and held:

[I]n contrast to Conahan, [the defendant] did not 

voluntarily admit himself to an alcohol treatment facility. 

Instead, he entered the rehabilitation facility as a condition 

of bail in order to avoid pre-trial imprisonment. We 

conclude, therefore, that the time which [the defendant] 

spent as a patient in the alcohol treatment facility was 

“time spent in custody” within the contemplation of 42 

Pa.C.S. § 9760(1). As such, he is entitled to credit 

therefor against the sentence of imprisonment imposed for 

his second offense.

Cozzone, 593 A.2d at 867-68.

In the 2007 Superior Court decision of Fowler,

8

the defendant 

completed twenty-five months of inpatient drug treatment as a part of the 

county Drug Treatment Court Program. Fowler, 930 A.2d at 588. The trial 

court denied his request for credit for this time. Id. at 590. On appeal to 

this Court, the defendant argued, inter alia, that he was entitled to the credit 

because the court ordered his participation in the drug treatment. Id. at 

595. This Court disagreed, adopting the trial court’s reasoning:

Importantly, it was [the defendant] who requested the 

opportunity to participate in the Erie County Drug Court. 

[The defendant’s] motivation, in part, was to avoid 

incarceration. . . .

 

8 Fowler was an appeal from an order denying a Post Conviction Relief Act, 

42 Pa.C.S. §§ 9541-9546, petition. Fowler, 930 A.2d at 588.
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Equally as important was the fact [that the defendant’s] 

participation in the Drug Court Program was voluntary. 

This [p]rogram is not a mandated program. Instead, it was 

[the defendant] who requested to participate. [The 

defendant] could opt out of the program at any time.

Id. at 597. This Court also found, 

[The defendant] had misused and abused the many 

opportunities for rehabilitation without incarceration that 

the court had provided to him. The [trial] court declined to 

reward [the defendant’s] actions with credit for time 

served. The court’s decision was entirely within its 

purview.

Id. at 598.

Finally, in Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 

2010), the defendant was charged with DUI. Id. at 1243. “The magisterial 

district judge provided in the . . . bail information . . . that [the defendant] 

‘shall enter and complete [a] comprehensive in-patient alcohol/drug 

treatment program.’” Id. at 1247. Before entering treatment, the 

defendant was arrested for public drunkenness and hospitalized for a 

“dangerously high blood alcohol level.” Id. The defendant then “referred 

himself for . . . inpatient treatment” in Oregon and transferred to a program 

in Arizona for additional inpatient treatment. Id. at 1248. The total time 

spent in these two programs was 354 days. Id.

Thereafter, the trial court imposed a mandatory minimum sentence of 

imprisonment. Id. at 1243. This Court specifically noted that the court 

could not impose “any form of IP, such as placement in a residential 

inpatient drug or alcohol treatment program, because [the defendant] was 
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subject to a mandatory sentence of imprisonment[.]” Id. at 1252 n.11. The 

defendant requested credit for the 354 days spent in inpatient rehabilitation. 

Id. at 1243, 1247. The trial court denied it, determining, “Despite the 

language in the bail information,” the defendant “voluntarily checked himself 

into treatment.” Id. at 1251.

On appeal, this Court affirmed. Id. We first reviewed Conahan and 

Cozzone and opined:

[I]t 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. 

Cozzone. 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. Conahan. See 

also Commonwealth v. Mincone, . . . 592 A.2d 1375 

(Pa.Super. 1991) (en banc) (trial court may exercise its 

discretion in determining whether to grant defendant credit 

towards his mandatory minimum sentence of 

imprisonment for time voluntarily spent at Gateway 

Rehabilitation Center, an institutionalized rehabilitation 

facility) (discussing Conahan, supra).

Toland, 995 A.2d at 1250-51.

The Toland Court agreed that the defendant had “voluntarily 

committed himself to residential rehabilitative treatment.” Id. at 1251. We 

noted the defendant: (1) did not enter treatment until “one full month after 

his release on bail, and after he had been re-arrested for public drunkenness 

and hospitalized,” (2) conceded “that he did not enter inpatient treatment to 
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avoid . . . jail for DUI, but did it ‘voluntarily’ to ‘save [his] life,’” (3) claimed 

he began treatment as a condition of bail only after the trial court denied 

him credit, and (4) “continued his preliminary hearing [eight] times in order 

to remain in treatment, only to ultimately waive his preliminary hearing 15 

months later, when, perhaps not coincidentally, he had spent nearly one full 

year in residential inpatient treatment,” where the defendant “faced a 

mandatory minimum sentence of one year of imprisonment.” Id.

The Toland Court next considered whether the trial court abused its 

discretion in denying credit. Id. The trial court had found the treatment 

facilities “were not custodial and did not rise to the level of ‘imprisonment,’” 

where the defendant “was not restrained and was free to leave treatment at 

any time.” Id. Furthermore, the defendant “was permitted to do his own 

grocery shopping[,] volunteer in the community,” and “had a part-time job 

at Office Max.” Id. at 1252. This Court held that the defendant failed to 

demonstrate an abuse of discretion. Id.

Applying the dictates of Toland to the case sub judice, we review 

whether Appellant’s participation in inpatient drug treatment was voluntary. 

See id. at 1250-51. In arguing that it was not voluntary, Appellant 

emphasizes that inpatient drug treatment was a condition of her IP 

sentence, she could not opt out of treatment at any time, and she could not 

leave the treatment center, as police would have apprehended her. 

Appellant’s Brief at 17. In its opinion, the trial court did not discuss the 
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voluntariness of Appellant’s drug treatment. Instead, its reasons for denying 

credit are: (1) Appellant was clearly told that if she failed to comply with the 

conditions of her IP sentence, she could be imprisoned up to 60 months; (2) 

she was “given every chance” but repeatedly failed at her treatment; (3) she 

was afforded 177 days of inpatient treatment, whereas “most other 

participants in the Intermediate Punishment Program” receive 90 days; (4) 

“the public spent well over $30,000.00 for [Appellant’s] rehabilitative 

treatment” and she is not required to pay any of those costs; and (5) her 

“inpatient treatment ultimately proved to be a failure [and] did nothing to 

change her drug use habits,” and awarding credit “would reward failure.” 

Trial Ct. Op. at 8-9.

While it is clear the trial court carefully reviewed the history of 

Appellant’s case, we hold the court erred in not considering whether she 

voluntarily entered inpatient treatment. See Toland, 995 A.2d at 1250-51. 

After review of the foregoing decisional authority and the certified record, 

including the original sentencing order of October 5, 2010, and the trial court 

opinion, we hold that Appellant’s participation in treatment was not 

voluntary akin to that in Fowler and Toland. Although Appellant’s sentence 

was not imposed through Drug Court, like the sentence in Fowler, she “was 

sent to Bowling Green” the day after she was sentenced, unlike the 

defendant in Towland, who did not enter treatment until one month after 

release on bail and after another arrest for public drunkenness and 
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hospitalization. See Towland, 995 A.2d at 1247, 1251; Fowler, 930 A.2d 

at 588. Appellant then “remained [at Bowling Green] until November 2, 

2010, when she showed up at the Cumberland County Probation Office 

having been discharged from Bowling Green.” Trial Ct. Op. at 1.

Appellant avers on appeal that she is entitled to 177 days of credit, 

which we calculate is the length of time between October 6, 2010, when she 

started at Bowling Green, and April 1, 2011, when she left Gaudenzia 

Vantage House. In light of our foregoing discussion, we agree that she is 

entitled to this amount of credit. Accordingly, we vacate the judgment of 

sentence and remand for the trial court to award 177 days of credit.

Judgment of sentence vacated. Case remanded for proceedings 

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2014