Opinion
J-S49021-18 No. 479 MDA 2018
11-30-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. COREY ALLEN DUFFIELD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence imposed February 2, 2018
In the Court of Common Pleas of Centre County
Criminal Division at No: CP-14-CR-0001458-2017 BEFORE: SHOGAN, STABILE, JJ., and STEVENS, P.J.E. JUDGMENT ORDER BY STABILE, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Corey Allen Duffield, appeals from the February 2, 2018 judgment of sentence imposing 90 days of incarceration for driving on a suspended license followed by five years of intermediate punishment for driving under the influence of a controlled substance ("DUI"). We vacate and remand.
75 Pa.C.S.A. § 1543 (this statute has been amended effective October 20, 2018).
On August 29, 2017, Appellant was arrested in Centre County for the instant offenses and detained for a violation of his parole on two Clinton County DUI sentences. Appellant was incarcerated because he was unable to post bail. On January 29, 2108, his Clinton County parole was revoked. Instantly, the trial court did not give Appellant credit for his pre-sentence confinement. At the hearing on Appellant's post-sentence motion, the Centre County Specialty Court Coordinator testified that she believed the Clinton County authorities adjusted the expiration date of Appellant's maximum term to account for the time he served on the detainer. N.T. Post-Sentence Motion, 2/20/18, at 7-8. As it is unclear from the record whether that occurred, the trial court has requested a remand. Trial Court Opinion, 4/18/18, at 1-2.
A court's failure to award credit for time served, in accord with 42 Pa.C.S.A. § 9760, implicates the legality of the sentence. Commonwealth v. Clark , 885 A.2d 1030, 1032 (Pa Super. 2005). Our Supreme Court has acknowledged that § 9760 does not address proper application of credit for time served where the defendant is incarcerated for a new offense and detained for a parole violation. Martin v. Pa. Bd. Of Prob. & Parole , 840 A.2d 229, 303-04 (Pa. 2003). In Gaito v. Pa. Bd. Of Prob. & Parole , 412 A.2d 568 (Pa. 1980), our Supreme Court held that, in such a case, the time served should normally be applied to the sentence for the new offense. Id. at 571. The Court also acknowledged in a footnote that time served can be credited toward the prior offense if the defendant is acquitted or receives no sentence for the new offense. Id. at 571 n.6. The Martin Court relied on Gaito to hold that a defendant could receive credit for time served against his original sentence where he only received a 48-hour sentence for the new offense. Martin , 840 A.2d 229. Gaito and Martin remain good law:
Gaito remains the general law in this Commonwealth respecting how credit should be allocated for a convicted parole violator wo receives a new sentence of incarceration, and the exception to Gaito , set forth at footnote 6 and further developed in Martin , is limited to cases in which a convicted parole violator receives a term of incarceration for new charges that is shorter than his pre-sentence confinement, such that the application of the Gaito rule would result in excess incarceration.Smith v. Pennsylvania Bd. Of Prob. & Parole , 171 A.3d 759, 768-69 (Pa. 2017).
The Commonwealth argues against remand, claiming Appellant is attempting to receive time-served credit toward the instant sentence and the Clinton County sentences. The Commonwealth correctly notes that this Court, in Commonwealth v. Ellsworth , 97 A.3d 1255 (Pa. Super. 2014), held that "duplicative imposition of credit for time served constitute[s] a patent and obvious mistake" that is amenable to correction beyond the thirty-day period specified in 42 Pa.C.S.A. § 5505. Id. at 1257.
In light of all of the foregoing, we vacate the judgment of sentence and remand for a determination of whether Appellant has received proper credit for time served in accord with all applicable law.
Judgment of sentence vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/30/2018