J-S68037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    COLLEEN CONNIE PROKOP                      :
                                               :
                       Appellant               :      No. 1001 WDA 2019

          Appeal from the Judgment of Sentence Entered June 4, 2019
               In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000075-2019


BEFORE:      GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                       FILED FEBRUARY 07, 2020

        Appellant, Colleen Connie Prokop, appeals from the judgment of

sentence entered in the Venango County Court of Common Pleas, following

her open guilty plea to endangering the welfare of a child (“EWOC”) and

driving under the influence of alcohol or a controlled substance (“DUI”). 1 We

affirm.

        In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case as follows:

           On September 13, 2017, [Appellant] was sentenced at [CP-
           61-CR-0000124-2012] and [CP-61-CR-0000385-2012] to
           State intermediate Punishment (“SIP”) for a maximum
           period of twenty-four (24) months. [Appellant] arrived at
           the Bureau of Corrections on June 23, 2017, so the 24
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 4304(a)(1); 75 Pa.C.S.A. § 3802(c), respectively.
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        months was to be computed from that date. Id. On October
        9, 2018, during a less restrictive portion of the SIP
        curriculum, [Appellant] was again found driving under the
        influence which led to the charges for the above-captioned
        case. [Appellant] waived Preliminary hearing, and her bail
        was set at $1,000 unsecured. The Information was filed,
        charging [Appellant] with the following:

           Count 1    Endangering the Welfare of Children, in
           violation of 18 Pa.C.S.A [§] 4304(a)(1), a
           Misdemeanor 1;

           Count 2      Driving Under the Influence/Highest Rate-
           Minor Occupant (Fifth or Subsequent Offense), in
           violation of 75 Pa.C.S.A. [§] 3802(c), a Misdemeanor
           1;

           Count 3     Careless Driving, in violation       of   75
           Pa.C.S.A. [§] 3714(a), a Summary Offense;

           Count 4    Driving       Operating         Privilege
           Suspended/Revoked, in violation of 75 Pa.C.S.A. [§]
           1543(b)(1.1)(i).

        Information.

        On April 22, 2019, [Appellant] entered into a plea
        agreement with a guilty plea to [EWOC] and DUI. On June
        4, 2019, [Appellant] was sentenced [to] a total aggregate
        sentence of twenty-four (24) months to one hundred twenty
        (120) months, to be served in a state correctional institute.
        [Appellant] was not given any credit toward the sentence.

        On July [2], 2019, [Appellant timely] filed her notice of
        appeal with the Superior Court and thereafter received
        notice from this [c]ourt directing compliance with Pa.R.A.P.
        1925. [Appellant timely] filed her concise statement on July
        23, 2019….

(Trial Court Opinion, filed August 2, 2019, at 1-2, unpaginated) (some

emphasis added).

     Appellant raises the following issue for our review:

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         DID THE TRIAL COURT HAND DOWN AN ILLEGAL SENTENCE
         IN THAT IT FAILED TO GRANT CREDIT FOR TIME
         [APPELLANT] SPENT IN PRISON FOLLOWING HER ARREST
         ON THESE CHARGES?

(Appellant’s Brief at 2).

      Appellant argues she should get credit for the time she served pending

her plea and sentencing on the current charges of EWOC and DUI. Because

her prior SIP sentence was not revoked before this new sentence was

imposed, Appellant complains, if her prior SIP sentence is not revoked, then

the time she spent imprisoned before disposition on the current offenses could

have been credited to her new sentence. To the extent the court might decide

not to revoke her prior SIP sentence, she runs the risk of losing any credit for

time served. Appellant concludes the court should have applied the credit for

time she served pending her plea and sentencing on the current charges of

EWOC and DUI to her new sentence for EWOC and DUI, and this Court must

vacate and remand for resentencing. We disagree.

      Our standard and scope of review in this case are as follows:

         A claim asserting that the trial court failed to award credit
         for time served implicates the legality of the sentence.
         Commonwealth v. Johnson, 967 A.2d 1001, 1003
         (Pa.Super. 2009). Issues relating to the legality of a
         sentence are questions of law. Commonwealth v. Aikens,
         139 A.3d 244, 245 (Pa.Super. 2016)[, aff’d, 641 Pa. 351,
         168 A.3d 137 (2017)]. Our standard of review over such
         questions is de novo and the scope of review is plenary.

Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa.Super. 2018).

      With regard to awarding credit for time served, the Pennsylvania


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Sentencing Code provides in relevant part as follows:

         § 9760. Credit for time served.

         After reviewing the information submitted under section
         9737 (relating to report of outstanding charges and
         sentences) the court shall give credit 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). In general, “a defendant shall be given ‘credit for

any days spent in custody prior to the imposition of sentence, but only if such

commitment is on the offense for which sentence is imposed. Credit is not

given, however, for a commitment by reason of a separate and distinct

offense.’” Commonwealth v. Clark, 885 A.2d 1030, 1034 (Pa.Super. 2005)

(quoting Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa.Super. 1995)).

      In the context of parole/probation violations, “if a defendant is being

held in custody solely because of a detainer lodged by the Board [of Probation

and Parole] and has otherwise met the requirements for bail on the new

criminal charges, the time which [s]he spent in custody shall be credited

against [her] original sentence.”      Gaito v. Pennsylvania Board of

Probation and Parole, 488 Pa. 397, 403, 412 A.2d 568, 571 (1980).

Specifically:

         All time served by a parole violator while awaiting
         disposition on new charges must be credited to the original

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         sentence if the inmate remains in custody solely on a Board
         detainer. If the inmate is incarcerated prior to disposition
         and has both a detainer and has failed for any reason to
         satisfy bail, [then] the credit must be applied to the new
         sentence by the sentencing court. If the new sentence is
         shorter than the time served, the balance can be applied to
         the original sentence, but the sentencing court must specify
         “time served[”] in the sentencing order for the new offense,
         so that the Board will be able to apply the credit.

Gibbs, supra at 1167 (emphasis in original) (quoting Commonwealth v.

Mann, 957 A.2d 746, 751 (Pa.Super. 2008)).

      Instantly, the record confirms that Appellant’s bail concerning her

current EWOC and DUI charges was set at $1,000.00 unsecured. In other

words, Appellant did not have to post any money, but would be obligated to

pay $1,000.00 if she failed to comply with the conditions of bail.        See

Pa.R.Crim.P. 524(C)(3) (explaining release on unsecured bail is conditioned

upon defendant’s written agreement to be liable for fixed sum of money if she

fails to appear as required or fails to comply with conditions of bail bond; no

money or other form of security is deposited). Nothing in the record indicates

that Appellant failed to comply with the conditions of her unsecured bail bond.

Rather, the record makes clear Appellant was incarcerated prior to disposition

of the EWOC and DUI charges solely on the detainer arising from violation of

her original SIP sentence. As the trial court explained:

         Here, [Appellant’s] bail was set at $1,000 unsecured for the
         new criminal charges, therefore, [Appellant] was not being
         held on the new charges and any time served should be
         credited toward the original sentence for which [Appellant]
         was paroled on.


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J-S68037-19


(Trial Court Opinion at 3, unpaginated).    We agree.   Therefore, the court

properly declined to credit the time served pending her plea and sentencing

on the current charges of EWOC and DUI against her new EWOC and DUI

sentence. The time Appellant served while awaiting disposition on her new

charges was served solely on the detainer and credit for time served solely on

the detainer applies to the original sentence.   See Gaito, supra; Gibbs,

supra. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/2020




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