Sentencing • DUI • County Intermediate Punishment Plan • House Arrest • Electronic Monitoring

Commonwealth v. Jurczak, PICS Case No. 14-0323 (Pa. Super. Feb. 21, 2014) Allen, J. (15 pages).

The commonwealth appealed the sentence imposed on Jurczak after his conviction for driving under the influence, possession of marijuana, possession of drug paraphernalia and failing to stop at a stop sign, alleging that the sentence did not comply with the requirements of the Greene County intermediate punishment statutes because Jurczak was sentenced to house arrest with electronic surveillance without having to serve at least one-third of the sentence while incarcerated. Sentence affirmed.

A trooper observed Jurczak failing to stop at a stop sign and weaving on the road. Jurczak failed a field sobriety test, refused to perform a breathalyzer test, and had a marijuana pipe with burnt residue in his pocket. At trial, Jurczak was convicted and sentenced to 100 hours of community service, fines totaling $1725 and one year of county intermediate punishment (IP) to be served as 90 days of house arrest with GPS and alcohol monitoring, followed by nine months probation. The court also found Jurczak eligible for work release while on house arrest and granted him reasonable furloughs to transport his disabled child to medical appointments and services. The commonwealth asserted that the sentences imposed were illegal because the county IP plan required serving one third of the mandatory minimum sentence as incarceration before electronic home monitoring was allowed.

County IP is a statutorily authorized sentencing alternative pursuant to 42 Pa.C.S.A. §9721(a)(6). Section 9763 of the Sentencing Code and CIP Act, 42 Pa.C.S.A. §§9801 et seq. require that a defendant being sentenced for a first, second, or third DUI offense must undergo a drug and alcohol assessment before being sentenced to county intermediate punishment. Jurczak had undergone the required assessment which showed that he was not dependent and needed no further treatment. The trial court sentenced Jurczak to a CIP sentence of house arrest with electronic surveillance in accordance with §§9763(c)(3)(i) and 9804 (b)(4)(iii)(A).

In authorizing a CIP plan, the act does not authorize the board to create its own eligibility requirements for admission into a CIP program. Rather, the act expressly defines an eligible offender and §§9763(c)(3) and 9804(b)(4)(iii) provide that an eligible DUI offender, such as Jurczak, may only be sentenced to house arrest with electronic surveillance, partial confinement such as work release or a combination of programs. The Greene County IP Plan’s attempt to preclude defendants like Jurczak from entry into CIP house arrest programs until one third of the sentence has been served as incarceration conflicts with the express statutory provisions of the sentencing code and would result in an illegal sentence.

In creating county intermediate program plans, each county is restricted by the eligibility requirements of the sentencing code. There is no statutory authority within the code empowering Greene county to require offenders to undergo total confinement before becoming eligible for county intermediate punishment.

In this case, the Greene County intermediate punishment plan attempted to alter the eligibility requirements for CIP by requiring Jurczak to serve a sentence of total confinement before he could receive his CIP sentence. This ran contrary to the eligibility requirements of §§9763(c)(3) and 9804(b)(4)(iii) and thus, the trial court did not err in declining to follow the Greene County IP Plan.