J-S30044-24
2024 PA Super 248
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NOLAN DEVINE :
:
Appellant : No. 30 MDA 2024
Appeal from the Judgment of Sentence Entered November 14, 2023
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000180-2023
BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: OCTOBER 29, 2024
Nolan Devine appeals1 from the November 14, 2023 aggregate
judgment of sentence of 48 to 96 months’ imprisonment imposed after he
pled guilty to driving under the influence of alcohol or controlled substance
(“DUI”) and homicide by vehicle while DUI.2 Appellant also received credit for
time-served for the time he spent in two court-ordered inpatient treatment
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Although Appellant purports to appeal the order denying his post-sentence
motion, we note that “[i]n a criminal action, appeal properly lies from the
judgment of sentence made final by the denial of post-sentence motions.”
See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.Super.
2001) (en banc), appeal denied,
800 A.2d 932 (Pa. 2002). The docket has
been corrected accordingly.
2 75 Pa.C.S.A. §§ 3735(a)(1)(i) and 3802(d)(1)(i), respectively.
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facilities, but did not receive credit for his stay at Serenity Lodge, a “sober
living” facility. After careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts and procedural history of
this case as follows:
Initially [Appellant] was arrested on August 17, 2022,
for aggravated assault by vehicle[,] recklessly
endangering another person[,] and various traffic
citations. This arrest stemmed from a motor vehicle
accident in the 900 block of Springbrook Avenue in
Moosic, Pennsylvania. [Appellant’s] car collided with
the victim’s vehicle head on while he was attempting
to illegally pass another vehicle.
When the police arrived, the victim, John Errigo, was
unconscious and still inside his vehicle. The
responding officer, Officer Giehl of the Moosic Police
Department, wrote that he was unable to speak with
Errigo due to his medical condition. Both [Appellant]
and Errigo were transported to Geisinger CMC by EMS.
Officer Giehl spoke with several witnesses to the
accident. The witnesses stated [Appellant’s] vehicle
was traveling at a high rate of speed and was seen
weaving through traffic before colliding head on with
Mr. Errigo’s vehicle. The police department then
obtained various business surveillance footage from
the scene of the accident including footage from just
prior to the accident. The footage revealed that
[Appellant] almost hit several other vehicles. During
police interviews, [Appellant] seemed disoriented,
and his speech was lethargic and slow.
Three days later, on August 20, 2022, Mr. Errigo died
as a result of the injuries he sustained. Meanwhile, the
officers obtained a search warrant for the blood
samples of [Appellant]. The blood analysis revealed
that [Appellant] had methamphetamine and
amphetamine in his system.
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On October 21, 2022, the original charges were
withdrawn. [Appellant] was then charged with
homicide by motor vehicle while DUI and related
offenses. The process of withdrawing the original
charges and the filing of new charges resulted in the
creation of two separate docket numbers at the
magisterial district court level.
On August 22, 2023, [Appellant] entered a guilty plea
to one count of homicide by motor vehicle while DUI
and one count of DUI. On November 14, 2023,
[Appellant] was sentenced to 48 months to 96 months
in a state correction institution. [Appellant] was
awarded all credit for time served, including time
spent in an inpatient treatment facility. However, this
court denied his request for credit for time spent at
Serenity Lodge.
Trial court opinion, 3/5/24 at 1-3 (citations and extraneous capitalization
omitted).
On November 27, 2023, Appellant filed a timely post-sentence motion
for reconsideration of sentence.3 The trial court denied Appellant’s post-
sentence motion the following day. This timely appeal followed on December
27, 2023.4
____________________________________________
3 We note that the 10th day after Appellant’s judgment of sentence was Friday,
November 24, 2023. The Lackawanna County Court of Common Pleas was
closed on Friday, November 24, 2023, as part of the Thanksgiving Holiday.
As the next two days were Saturday and Sunday, Appellant’s post-sentence
motion, filed on Monday, November 27, 2023, is considered timely filed. See
1 Pa.C.S.A. § 1908 (for computations of time, if the last day of any such period
shall fall on a weekend or any legal holiday, such days shall be omitted from
the computation); see also Commonwealth v. Fill, 202 A.3d 133, 138
(Pa.Super. 2019) (applying 1 Pa.C.S.A. § 1908).
4 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Appellant raises the following issues for our review:
I. Did the trial court err in sentencing [Appellant]
in the aggravated range of the Sentencing
Guidelines without adequate reasoning?
II. Did the trial court err by failing to give
[Appellant] credit for time served in a court
ordered treatment facility?
Appellant’s brief at 7 (extraneous capitalization omitted).
We begin by addressing Appellant’s claim that the trial court abused its
discretion in sentencing him in the aggravated range of the Sentencing
Guidelines. Id. at 11.
“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.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super.
2014) (citation omitted), appeal denied,
117 A.3d 297 (Pa. 2015). 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.”
Commonwealth v. Bullock,
170 A.3d 1109, 1123 (Pa.Super. 2017) (citation
omitted), appeal denied,
184 A.3d 944 (Pa. 2018).
Where an appellant challenges the discretionary aspects of his sentence,
as is the case here, the right to appellate review is not absolute.
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018), appeal
denied,
206 A.3d 1029 (Pa. 2019). On the contrary, an appellant challenging
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the discretionary aspects of his sentence must invoke this Court’s jurisdiction
by satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
appellant preserved his issue; (3) whether appellant’s
brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the sentencing
code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Instantly, the record reveals that Appellant filed a timely notice of
appeal and preserved his sentencing claim in a post-sentence motion.
Appellant, however, has failed to include a statement in his brief that comports
with the requirements of Pa.R.A.P. 2119(f), and the Commonwealth has
objected to this omission. See Commonwealth’s brief at 4-6. Accordingly,
we find that Appellant has waived his discretionary sentencing claim.
In any event, even if Appellant had not waived his discretionary
sentencing claim, his argument is belied by the record. Specifically, the record
reflects that following an extensive sentencing hearing, the Honorable
Margaret Bisignani Moyle considered all the relevant factors in fashioning
Appellant’s sentence, including a pre-sentence investigation (“PSI”) report
and new arrest while out on bail, and placed adequate reasons on the record
for imposing a sentence in the aggravated range. See notes of testimony,
11/14/23 at 60-80; see also trial court opinion, 3/5/24 at 4-5. When the
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trial court has the benefit of a PSI report, “we shall … presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014)
(citation omitted), appeal denied,
95 A.3d 275 (Pa. 2014). Based on the
foregoing, we find that Appellant’s discretionary sentencing claim would
nonetheless fail.
Appellant next argues that the trial court erred in failing to give him
credit for time-served at the Serenity Lodge, a “sober living” facility located in
Susquehanna County, Pennsylvania, from February 16 to August 16, 2023.
Appellant’s brief at 15.
A claim based upon the failure to give credit for time served is a
challenge implicating the legality of one’s sentence. Commonwealth v.
Tobin, 89 A.3d 663, 669 (Pa.Super. 2014). “A claim challenging the legality
of sentence is appealable as of right.” Commonwealth v. Clark,
885 A.2d
1030, 1032 (Pa.Super. 2005).
Our scope and standard of review for illegal sentence claims is as
follows:
The scope and standard of review applied to
determine the legality of a sentence are well
established. If no statutory authorization exists for a
particular sentence, that sentence is illegal and
subject to correction. An illegal sentence must be
vacated. In evaluating a trial court’s application of a
statute, our standard of review is plenary and is
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limited to determining whether the trial court
committed an error of law.
Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa.Super. 2006)
(internal citations omitted).
Section 9760 of the Sentencing Code governs credit for time-served and
provides, in relevant part, 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). “The principle underlying this statute is that a
defendant should be given credit for time spent in custody prior to sentencing
for a particular offense.” Commonwealth v. Fowler, 930 A.2d 586, 595
(Pa.Super. 2007) (citation omitted), appeal denied,
944 A.2d 756 (Pa.
2008).
The easiest application of [Section 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 little 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,
defines 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 presentencing release, which involve restrictions far short
of incarceration in a prison.
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Id. at 595–596 (citation omitted).
In Toland, supra, a panel of this Court noted that whether a defendant
is entitled to credit for time-served for participation in an inpatient treatment
program hinges on the question of voluntariness. Toland, 995 A.2d at 1250.
The Toland Court stated:
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 1250-1251 (internal citations omitted); see also Commonwealth v.
Lee, 182 A.3d 481, 485-486 (Pa.Super. 2018) (stating it is within the trial
court’s discretion whether to credit time voluntarily spent in a rehabilitation or
treatment program) (citation and internal quotation marks omitted)).
Here, the trial court awarded Appellant credit for the time he spent in
two inpatient treatment facilities, Turnbridge and High Watch, but determined
that he was not entitled to receive credit for his 6-month stay at Serenity
Lodge. In so ruling, the trial court noted the stark contrast between Serenity
Lodge and the two inpatient treatment facilities that the court-ordered him to
attend:
[Dino] Campitelli[, the director of Serenity Lodge,]
testified that as part of the program residents are
transported from Serenity Lodge by staff to an area
restaurant where they must work. He testified that
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staff are also present while the residents’ work.
Campitelli further testified that as part of the program
residents must attend Alcoholics Anonymous (AA) and
Narcotics Anonymous (NA) meetings, which are staff
supervised. Another aspect of the program is to
reintegrate residents back into their families.
Campitelli testified that when [Appellant] came to the
facility, he was already ten (10) months sober and
was allowed Saturday passes. On one of these
Saturday home visits, [Appellant] committed the
aforementioned traffic offenses. Campitelli stated
that the facility does not have bars on the windows,
residents may leave with staff approved family
members who can transport them to and from the
facility, and there are no restraints when they leave
the property. Finally, Campitelli offered testimony
that residents are only allowed to work at Bingham’s
Restaurant because it is monitored by Serenity Lodge
staff during the morning and evening shift.
....
During Mr. Campitelli’s testimony, he was asked about
comparisons between his facility and other facilities.
He stated Turnbridge is more intensive than Serenity
Lodge. He went on to say Serenity Lodge is not that
level. We are after primary treatment.
As in Lee, [Appellant] in this case was free to leave
for approved work. He was also given time to leave
with family if approved by the facility for overnight
and full weekend visits with no curfew. Additionally,
on one of the approved weekends away [Appellant]
picked up additional citations and was able to continue
at Serenity Lodge … rather than being placed back in
prison as a sanction. [Appellant] was able to go out
for ice cream after attending AA or NA meetings.
[Appellant] left to help his grandfather over a
weekend period. This court also considered that
[Appellant] was not monitored while away from
Serenity Lodge with family.
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Trial court opinion, 3/5/24 at 9-10, 12 (citations to notes of testimony
omitted).
Contrary to Appellant’s contention, our review of the record in this
matter reveals that the trial court did not specifically order Appellant to
undergo treatment at Serenity Lodge. Rather, the record demonstrates that
Appellant voluntarily admitted himself into Serenity Lodge on February 16,
2023, immediately following the trial court’s entry of an order that same day
remanding him back to the Lackawanna County Prison “based upon
consideration of [his] completion of inpatient rehabilitation, and failure to
attend sober living.” See trial court order, 2/16/23 (emphasis added).
Based on the foregoing, and in light of the caselaw cited above, we find
that the trial court was fully within is discretion to decline to give Appellant
credit for the time he voluntarily spent at Serenity Lodge.
Accordingly, we affirm Appellant’s November 14, 2023 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/29/2024
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