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HomeMy WebLinkAboutCP-21-CR-0556-2005 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. STEF AN JOHN CAVE NO. CP-21-CRIMINAL 0556 - 2005 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., June 6, 2006 The defendant has filed this appeal from our order of March 15, 2006 which denied his pro se "Motion to Modify Intermediate Punishment Sentence". He alleges that his intermediate punishment sentence was illegal in that "it was in direct contravention of the provisions of the sentencing code at Section 9763 (c) and the County Intermediate Punishment Act (CIPA) at Section 9804 (b)".l We will start with a recitation of the procedural and factual background. On June 21, 2005 the defendant entered pleas of guilty to charges of driving under the influence and driving under suspension (DUI related)? Since each was a third or subsequent offense, the defendant was subject to mandatory minimum sentences of one year on the driving under the influence charge and 90 days in connection with the driving under suspension conviction. At the time of sentencing on these charges the defendant was participating in the work release program at the Cumberland County prison where he was serving an 1 See "Statement of Matters Complained of on Appeal". The sections of the Sentencing Code and County Intermediate Punishment Act referred to by the defendant are contained in 42 Pa. C.S.A. ~ 9763 (c) and 42 Pa. C.S.A. ~ 9804 (b) respectively. 275 Pa. C.S.A. ~ 3802 (c) and ~ 1543 (b) (1.1) (iii). NO. CP-21-CRIMINAL 0556 - 2005 unrelated sentence? He specifically requested that we place him in the intermediate punishment program to allow him to obtain drug and alcohol treatment and to continue participation in the work release program.4 In compliance with his request, we sentenced him to 90 days in the Cumberland County prison (work release authorized) in connection with the driving under suspension charge. We imposed the following sentence in connection with the driving under the influence charge: "The sentence of the Court at Count 2 is that he be placed in the Restrictive Intermediate Punishment Program for 54 months, consecutive to the sentence imposed at Count 1. Up to 12 months of the RIP sentence to be served in the Cumberland County Prison andlor inpatient drug and alcohol treatment, with the remaining 42 months to be subject to the following Restorative Sanctions: 1. That he pay the costs of prosecution. 2. That he pay a fine of$2,510.00, which includes a $10.00 EMS Services fee, plus a $200.00 CAT Fund surcharge. 3. That he maintain full-time employment and pay not less than $150.00 per month towards fines and costs. 4. That he not use any drugs or alcohol. 5. That he be and remain on good behavior. 6. That he comply with all other directions of his parole officer. Immediate work release is authorized. 5 While at the Cumberland County Prison the defendant successfully completed an intensive outpatient drug and alcohol program before he began serving his D.UI. sentence.6 For reasons that are not clear in the record, the defendant was removed from the work release program and housed in general population? On March 13, 2006 the defendant filed his pro se petition asking us to modify his intermediate punishment sentence because he was no longer allowed to participate in the work release program. 3 Transcript of Sentencing Proceedings, August 23, 2005, p. 2. 4 Transcript of Sentencing Proceedings, August 23, 2005, p. 2. 5 Transcript of Sentencing Proceedings, August 23,2005, p. 3. 6 Motion to Modify Intermediate Punishment Sentence, paragraph 2. 7 Motion to Modify Intermediate Punishment Sentence, paragraph 2. 2 NO. CP-21-CRIMINAL 0556 - 2005 As the defendant correctly pointed out, the Sentencing Code and the County Intermediate Punishment Act limit the confinement portion of an intermediate punishment sentence for D.UI. offenders to inpatient drug and alcohol treatment, house arrest with electronic monitoring or a "partial confinement program such as work release". 8 The defendant's motion for modification requested early parole or electronic monitoring. We were not prepared to "reward" the defendant for becoming disqualified from participating in the work release program.9 Therefore, we denied his petition without a hearing. In retrospect, we may have acted improvidently. While we certainly would not have granted any request for early parole or electronic monitoring, the better course would have been to hold a hearing on the motion in order to establish, on the record, the reasons for the defendant's removal from the work release program. If it was for some reason other than his own conduct, we would be in a position to take appropriate action. If, however, he has been disqualified because of his own conduct, then his total confinement would be the appropriate result. DATE Edward E. Guido, J. District Attorney Public Defender Stefan J. Cave 8 See 42 Pa. C.S.A. ~ 9763 (c) (2) (3) and 42 Pa. C.S.A. ~ 9804 (b) (2) (ii) and (iii). 9 Upon receiving his petition we asked prison authorities why he was no longer participating in the work release program despite our express authorization. We were advised that he was disqualified for violating the rules of the program. 3