*1 to the trial court for allowance of matter should be returned modifiability. only One need on the issue parole evidence prior case law undertaken analysis review the careful Eugene trial the Honorable distinguished judge, the most appreciate the timeliness and need Act Strassburger, No. 13. question answered the which has legislature has so much court so much and caused this trouble
given bar. Act No. 13 family practice within the consternation prior court decisions judicial analysis renders further The learned trial inappropriate unnecessary. this area of Act No. 13 when he not have been aware could judge decision, adopted very day it on the since was rendered dismissed. exceptions were defendant/appellant’s No. 13 this difficulty finding applicable Act I have no child Since, 401.1(b), regarding provisions appeal. showing upon are modifiable support custody circumstances, would the order trial changed vacate proceedings further con- remand this matter for court and 401.1(b) of the Divorce Code. Section sistent with MONTEMURO, opinion. J., dissenting joins Pennsylvania, Appellee,
COMMONWEALTH KRISTON, Jr., Appellant. J. William Pennsylvania. Superior Court of Argued June 24, 1990.
Filed Jan. *2 Sardella, Albert M. Chester, West for appellant. MacElree, II, James P. Dist. Atty., Chester, West Com., appellee. Com., Chester, Suss, Atty., Asst. Dist. West B.
Stuart appellee. Sosnov, amicus curiae. Philadelphia,
Leonard CAVANAUGH, Judge, CIRILLO, President Before BECK, TAMILIA, MONTEMURO, ROWLEY, BROSKY, JOHNSON, JJ. POPOVICH CAVANAUGH, Judge: appellant, issue in this case whether Jr., Kriston, undergoing “imprisonment” J.
William 3731(e) partici when he meaning of Pa.C.S. within monitoring prog electronic home County’s pated Chester ram.1 with his charged February, *3 of alcohol driving under the influence offense
second 3731, guilty which he entered to of 75 Pa.C.S. violation § term mandatory minimum sentenced to a He was plea. months. On twenty-three to imprisonment thirty days serving his sen- the commenced appellant June Prison Farm. June On County tence at the Chester sentencing approval or knowledge without the electronic home court, was admitted into appellant by the warden program and was allowed monitoring program. his in that the remainder of sentence serve and returned to his home. left 3731(e) provides pertinent part: 1. 75 Pa.C.S. § 3731(e) Penalty.— § 75 Pa.C.S.A. (1) violating Any person any provisions of this section is sentencing degree guilty of the second and the of a misdemeanor pay person $300 a fine of not less than and court shall order the minimum term of of: serve a (ii) days person previously has been if the less than 30 equivalent or of an of an offense under section convicted jurisdictions previous seven in this or other within offense years. monitoring program, must the defendant Under the electronic person which sounds an alarm if he device his wear an electronic telephone which is hundred feet from his ventures more than one integrated system. into the In July, the appellant applied parole and the opposed Commonwealth the motion as he had only ten days prison. confined Following hearing, the court by Gawthrop, petition below J. denied the and directed that the serve the remaining twenty of his sentence in prison. The appellant's petition for reconsideration was denied has appealed to this court. 3731(e)
75 Pa.C.S. provides for a “minimum term of where imprisonment” the defendant has previously been driving influence, convicted of as in this case. The statute refers to mandatory “imprisonment”. must We the language construe of the statute according to common Hill, Commonwealth ordinary usage. 481 Pa. The ordinary meaning of “imprison- is ment” the lawful confinement of an individual to a correctional or similar institution. Even partial where con- finement is involved the statute “In provides: imposing a involving partial confinement, sentence the court spec- shall ify sentencing at time of length of the term during confined, which defendant be partially which term may not exceed the maximum term for which he could be confined, and totally whether the confinement shall com- institution.” mence a correctional or other appropriate goes The statute on to note that the “court inmay its order grant the institution the defendant the privilege leaving during necessary and reasonable hours for any of the following purposes: To work at employment____” *4 9755(a), 42 (c). Pa.C.S. (Emphasis added). § Participation in the electronic home monitoring pro gram does not “imprisonment” constitute in an institution. The court did not clearly below abuse its in discretion refusing grant the defendant credit towards for time he at home in program, as he not was imprisoned during that time. It does matter not whether the warden exceeded his in authority placing the defendant in the or program, acted a mistaken belief that monitoring system electronic home constituted “imprison-
547 in was not defendant remains that m©nt”. The fact an electronic device he at home with while was prison a mini- the statute mandates person, attached to of which for the offense imprisonment mum term prison has a court nor a warden Neither convicted. statute. authority to rewrite the v. Sojourner, Commonwealth Court, in Supreme Our 513 (1986), at 5 held 5,N. 518 A.2d 1148 N. 43 at Pa. driving for under the minimum sentence a mandatory that incarceration is to be that “some term influence meant added). The (Emphasis offenses.” for first imposed even in imposing erred the trial court court held a first- minimum sentence mandatory offender, inas fortiori, A a second-time offender. time in case, pris- the minimum sentence necessarily serve must Waters, v. In Commonwealth Pa.Super. 361 154, 522 on. 3731(e) a mini- (1987), provided held that A.2d 60 we term explicit- statute itself and “the imprisonment, mum specified are ‘mandatory’ sentences ly states 522 A.2d at Pa.Super. at Kearns, Pa.Super. Commonwealth 528 A.2d v. driving under the (1987), convicted of the defendant was and had a a controlled substance influence of alcohol or to not less than He sentenced previous conviction. alternate prison to six months forty-eight hours with housing Arc House. The court below denied Com- at to conform petition modify the sentence monwealth’s reversed, stating Pa.Super. at 365 the statute and we with 992: appellee prosecution appeal contends that on a mandatory minimum been sentenced to should have (30) thirty sentence of appellee because influ- driving under the previously had been convicted added.)2 agree. (Emphasis ence. We Commonwealth in our recent decision 2. We also note that Conahan, Pa.Super. A.2d 798 we held that time program in-patient did not constitute alcohol treatment an imprison- statutorily minimum sentence of mandated service ment. *5 on Robinson, Jacobs v. appellant’s reliance 49 Pa. Cmwwlth. In misplaced. case, Wayne Jacobs was sentenced to imprisonment for a term of two to five years. He was inadvertently released from prison because of a clerical error in recording his discovered, sentence. When the error was a warrant his arrest was issued charge based of escape. Jacobs taken ultimately into custody charge of escape was, however, was dismissed. He denied credit for the time was at in the large community and under supervision of the Department. Probation On appeal, Court Commonwealth réversed and directed that he be given credit towards sentence for the time that he was away prison. from The facts of that case are readily distinguishable. us, the case before the appellant was sentenced to for at least thirty days. The appellant applied for release the electronic home monitor- ing program, granted warden, which was without or approval knowledge the sentencing judge. Placement in the program was error, not due to a clerical but was accomplished by the warden who had no authority change the imposed sentence by the court. In addition, Jacobs, supra, did not deal with a statute which mandated imprisonment, may we not modify legislative enact- ment.3
The court below properly concluded that the time in the electronic home monitoring program not did constitute im- prisonment, and accordingly acted within its discretion in refusing grant parole to the appellant.
Order affirmed. BECK, JJ., POPOVICH and file dissenting opinions. CIRILLO, Judge, joins President dissenting opinion by POPOVICH, J. agree necessarily doWe with the decision of the Commonwealth Jacobs, supra, Court in application and would limit its to the narrow factual situation set forth that case. dissenting:
POPOVICH, Judge, *6 castle, now, home his time, a man’s but upon a Once confinement, prison of home the advent electric through to a man’s home technology transform have the authorities within one’s home is confinement dungeon.1 his While into I am jail, in a to incarceration preferable certainly most confinement, imposi the by enhanced convinced that an satis liberty, offender’s stringent restraints tion of 75 Pa.C.S.A. “imprisonment” the definition of fies of alcohol or controlled the influence (Driving under § arguendo substance).2 Moreover, assuming that electronic I, imprisonment, constitute does not home confinement 26 days credit with the nevertheless, appellant would a remand for new on electronic home spent Robinson, 49 Pa. wlth. See Jacobs Cm hearing. parole 194, 410 A.2d parole, the Commonwealth applied appellant
When ten only had served motion opposed the because remainder of incarceration days prison with the overburdened, increasingly home con- prisons electronic 1. As become increasingly popular programs alternatives to will become finement existing penal of new expansion of facilities and construction fact, imprison- employ need means of to alternate institutions. already Consider the follow- has affected Commonwealth. ment ing, Pennsylvania Department of Corrections estimates penal system overpopulation between will have an of the state or, words, 12,806 10,897 percent in other inmates crowding expected”, than percent capacity. "Jail to rise faster of See Patriot, 278, Page Harrisburg Col. November Volume No. figures loss of beds do not account the recent 1989. These Hill, Camp publicized prison at riots at institution due the much Pennsylvania. 3731(e) Penalty.- § 2. 75 Pa.C.S.A. violating provisions Any person any of the section is degree sentencing and the guilty of misdemeanor the second a pay than person $300 a find of not less shall order the court imprisonment of: serve minimum term (ii) days previously been person if the has less than 30 equivalent of an an under this section of convicted of offense previous jurisdictions seven within the this or other offense in years. at his home on 20,1987, electronic confinement.3 On July hearing was held before the sentencing regarding court appellant’s parole petition. court, following its prior Commonwealth v. Anthony, 36 Ches.Co.Rep. decision 72, 46 Pa.D. & 298 (1987), C.3d reasoned that electronic home confinement did not qualify as within meaning 3731(e). 75 Pa.C.S.A. Therefore, court denied and directed serve the remain- ing twenty of his mandatory thirty day sentence in the Chester County Appellant’s petition Prison. for reconsider- denied, ation was and he was released on bail pending the outcome this appeal. The Majority, affirming the below, decision the court essentially adopted lower *7 reasoning court’s that electronic home confinement is not “imprisonment” “imprisonment” since requires confinement to be in a “correctional or similar institution.”
Pennsylvania’s provides DUI statute as penalty a two-time offenders a “minimum term of imprisonment of ... less than 30 ...” 3731(e)(l)(ii). 75 Pa.C.S.A. § Black’s Law Dictionary, Ed., 1979, 5 defines “imprison- ment” as follows:
The act of or putting confining prison. a man in The personal restraint a man’s liberty; coercion exercised upon person a prevent to the free his powers exercise of It not a necessary part of locomotion. defini- tion should be in place a usually appropriated to that purpose; it in a may be locality occasion; only used or specific may it take place application without actual any physical agencies (such bars) restraint or by as locks as compulsion verbal and the available force. Every confinement of display the person “imprisonment” is an whether it be in a program, Under the electronic home confinement wore a monitoring monitoring device. Another device was affixed to his telephone. If ventured more than one hundred feet from telephone, headquarters an alarm would sound at the private company provides county. which the service to the company notify would then the authorities. to addition the elec- monitoring, appellant subject drug tronic to random and alcohol testing prison and received unannounced visits from officials.
551 house, detain- byforcibly or even private or in prison streets. in the public one unlawful exercise or ing Any compelled to remain person is by of force which show v. Christy, be McKendree 29 to he does not wish where added). (emphasis N.E.2d 381 172 Ill.App.2d his where- under “house arrest:” Instantly, appellant was he monitored continuously electronically; were abouts to unan- rigorous drug testing; submitted subjected officials; and, if he ventured visits from nounced he faced telephone, feet from his than one hundred more would filed. possibility escape charges real be the very “imprisonment” qualifies as appellant’s situation Certainly, Black’s definition.4 pursuant occasions,
Further, confine prior on we have found that in an center a DUI offender alcohol rehabilitation ment of 3731(e). as under 75 Pa.C.S.A. qualifies “imprisonment” Usher, v. Commonwealth 435, 399 A.2d Pa.Super. 264 See v. Mal Commonwealth (alcohol (1979) rehabilitation); 1129 lon, (alcohol (1979) A.2d rehabili Pa.Super. Jones, Commonwealth tation); Pa.Super. institution).5 (mental Supreme Our Court A.2d 834 se adopt per concerning for time credit has refused rule Instead, parole. program in a rehabilitation while must high interpreting “custody” Court has ruled that our basis, on a case on the extent be done case based *8 language Majority correctly states that must construe the 4. The “[w]e ordinary usage. according Common- of the statute to common and Hill, (1980)." 481 A.2d What could be more wealth v. Pa. 391 1303 ordinary legal usage representative of common and of a word Dictionary given Black’s ? the definition in Law than Majority holding in v. Cona- 5. The misconstrues Commonwealth han, Pa.Super. hold A.2d 798 Conahan does not program inpatient not served alcohol treatment does that time in an statutorily im- service minimum sentence of constitute mandated Rather, its prisonment. Conahan the trial court abused holds that voluntarily when it credited a defendant with time served discretion in a occurred facility hospitalization inpatient when that alcohol treatment adjudication guilt imposition sentence. an and before fact, concurring opinion recognizes Judge can Cirillo’s that credit In program granted for in a after conviction be time rehabilitation sentencing, allowing credit for time after and advocates served sentencing. but before arrest conviction placed restraints upon individual’s liberty. Cox v. Com., Parole, Bd. Probation and 507 Pa. (1985); n. 7 see also Commonwealth Cappiello, v.
284 Pa.Super.
(1981) (remanded
the restraint of in “institution,” must occur an liberty and, since home is not appellant’s se, an “institution” per appel- lant not imprisoned. was For analysis, the Majority provisions relies on the of the sentencing code, 42 Pa.C.S.A. 9755, which require confinement a “correctional or § other appropriate sure, institution.” beTo appellant was not committed to an “institution” in the traditional sense. However, the simple fact that the not incar- walls, cerated an institution high with iron bars and (or guards orderlies, armed white-coated nurses and physi- cians) prevent appellant should not from credit receiving time pursuant Pa.C.S.A. 9760. I believe that the electronic monitoring has in system fact converted appellant’s home into an “appropriate institution.” of its support holding that appellant must serve his mandatory minimum sentence in prison, the Majority cites Commonwealth Sojourner, 513 Pa.
(1986), for the proposition offender, that a “second-time as case, in this must necessarily serve minimum sentence prison." added). However, (emphasis Sojourner does address issue of whether minimum sentence must be served what is traditionally “prison.” considered a Rather, Sojourner holds it is an abuse of discretion not impose sentence; minimum mandatory opinion simply does not address the issue where that sentence must Instantly, be served. there no dispute imposed correct; sentence the only question is whether the location where the sentence was served satisfies the
553 Likewise, of 3731. Common- 75 Pa.C.S.A. requirements § (1987), A.2d Pa.Super. 992 Kearns, wealth v. the correct minimum the of whether question addressed of the question not the whether imposed, was sentence in the location.6 proper was served sentence review, stringent restraints I convinced that the am Upon to his liberty qualify are sufficient upon appellant’s placed time meriting thus credit for as “imprisonment,” situation fact, In home confinement. believe in electronic served program, combina- that the electronic home alters escape charges, very of the tion with threat appropriate to that of an “other nature of “home” 42 Pa.C.S.A. 9755.7 institution” under Moreover, impris- regardless whether confinement, I still am convinced during oned on to credit for the time legally he is entitled pursuant home confinement to Jacobs v. Robin- electronic (1980).8 son, 49 Pa.Cmwlth. Jacobs, Majority attempts distinguish supra,
The on electronic home ground placement no the warden who had “accomplished by confinement was court,” imposed by the sentence authority change Jacobs, supra. than error as occurred rather clerical most a distinction without difference. certainly This is cases, part it error on the officials which both Kearns, "[bjecause opinion I stated 6. As the author of the conviction, prior years offense within seven of the second occurred required under statute is the minimum term of However, thirty prison.” recognizing vast less than case, present presented in the use in issue Kearns and differences little, "prison” any, guidance. is if term in Kearns of the concerning electronic home confine- For additional information 7. ment, Hurwitz, Analysis A Arrest: Critical an Interme- see House Sanction, (1987), Penal 135 U.Pa.L.Rev. 771 and Ball diate-Level Drivers”, Lilly, of Home for Drunken “The Potential Use Incarceration (1986). Delinquency, No. 224-247 & Vol. Crime sentencing grant or is a court’s denial of matter appellate subject which review abuse discretion Romolini, Pa.Super. discretion standard. Commonwealth v. *10 rs.9 allowed the release prisone of the Robinson, Jacobs v. supra, the Commonwealth Court ruled: cannot be classified as an escapee upon
[Petitioner his inadvertent by prison release authorities. Furthermore, a prisoner cannot compelled be to serve a sentence in installments and has a right to serve his sentence continu- ously. Robinson v. Department Justice, 32 Pa. 77, Cmwlth. (1977). Since the charge of escape upon which the warrant of arrest was issued was dismissed, we must petitioner credit the with the time he was under supervision Department Probation of Philadelphia County.4 See Adams v. Board Proba- Parole, tion and Pa.Cmwlth.
Therefore,
grant
we will
summary
judgment
petition-
er’s favor and order the Bureau of Corrections to recom-
pute
sentence,
crediting the time
from September
1977 to December
1978 to the sentence imposed April
19, 1977 and made
effective March
1977.
Cunningham,
Jones v.
371 U.S.
83 S.Ct.
9 L.Ed.2d
Cf.
(1963)(a prisoner, although
placed
parole,
released and
on
was in
custody
board.)
parole
of members of the
Robinson,
Jacobs v.
Following the Commonwealth Court’s lead in Jacobs v. Robinson, I supra, would direct the Chester County Court
of Common Pleas to credit appellant with the time he served while on electronic home confinement. Clearly, ap- pellant’s case is more compelling than that of Wayne Ja- cobs. Rather than benefit from a fortuitous error, clerical appellant voluntarily applied for the home confinement pro- gram upon the (created reasonable belief by assurances of prison officials) that the time spent in the program would be credited toward his sentence. While in the electronic Although, Majority authority cites no for its determination that empowered warden was not place appellant on electronic home confinement, we will purposes assume for only of this issue and, thus, authority warden had no placing committed error in appellant in the program. home confinement great- to far subjected appellant program, merely who was Wayne than Jacobs supervision er right Wayne as Ja- has the same appellant parole. Since I conclude that it continuously, his sentence cobs to serve the time he served credit the with error not to supervision home confinement on electronic County system.10 Prison the Chester of the lower reverse the decision Accordingly, would hearing, directing the for a new court and remand with the time to credit lower court program.11 home confinement electronic *11 opinion by CIRILLO, Judge, joins dissenting President POPOVICH, J.
BECK, Judge, dissenting:
that electronic home
majority
I
with the
Although
agree
the
“imprisonment”
contemplated by
as
monitoring is
of 75 Pa.Cons.Stat.Ann.
in its
enactment
legislature
Attorney
Pennsylvania,
General of
in an
note that the
10. We also
similarly
Opinion,
concluded that a defendant who was
has
Official
jurisdiction
judge
no
over him because the
paroled
a
who had
years
of two
or more is entitled to
imposed had a maximum
sentence
not an
post-release
since he was
credit for
time
Bulletin,
Opinion
Pennsylvania
Vol.
escapee.
No.
See Official
(March
1983).
opinions
Attorney
While
General's
No. 12 at 1104
are not
court,
great weight. E.g.,
they
binding
are entitled to
upon
the
237, 245,
Chevrolet-Cadillac, Inc.,
Pa.
v. Good
McDowell
guar-
directly implicated presently,
Amendment
Though not
the 5th
resentencing
jeopardy
precluded
of
against
would have
antee
appellant
double
days
days,
a flat 30
rather than 30
to
had his sentence been
However,
routinely granted parole
are
months.
as DUI offenders
23
after
legal,
term,
practical, though not
they
the minimum
the
have served
twenty
days
requiring appellant to serve
additional
effect of
county jail
punishments
offense in
would be two
same
the
violation of the
against
letter,
guarantee
spirit, but not
of the 5th Amendment
Pearce,
jeopardy.
Simpson
See North Carolina v.
double
2072, 2076-2077,
711, 718-719,
Rice,
89 S.Ct.
Appellant Kriston’s case even more compelling than that of Jacobs. Here appellant re- who, first, leased by the warden acting under apparent and, second, authority to do so assured time electronic apply would serving towards of his minimum sentence. The inher- ent unfairness of denying appellant credit for time served these circumstances is inescapable, whatever might court’s conclusion regarding be propriety electronic home confinement as “imprisonment”. Surely this defendant should not have to bear the burden of the overreaching, warden’s when all parties acting were genuine, mistaken, Therefore, good albeit faith. for the reasons, foregoing I would remand this case to the lower parole hearing, court for a new directing lower court to *13 facility pursuant imposition court-ordered confinement to such a “imprisonment" sentence would constitute the terms of the statute. home confinement include the time in electronic when making eligibility determination. A.2d 1313 Pennsylvania
COMMONWEALTH LEATHERBURY, Appellant. Jermounte Superior Pennsylvania. Court
Argued Oct. 1989.
Filed Jan.