J-S39027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JESS TAYLOR HARKER                       :
                                          :
                    Appellant             :   No. 114 MDA 2018

             Appeal from the PCRA Order December 14, 2017
    In the Court of Common Pleas of Snyder County Criminal Division at
                      No(s): CP-55-CR-0000109-2016

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                           FILED AUGUST 22, 2018

      Jess Taylor Harker (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. After careful consideration, we reverse the PCRA court’s order

and remand the matter for proceedings consistent with this decision.

      The trial court summarized the facts and procedural history as follows:

          On January 17, 2017, [Appellant] pleaded guilty to one count
      of [r]etail [t]heft graded as a [m]isdemeanor of the [f]irst
      [d]egree pursuant to a plea agreement that called for a sentence
      in the bottom half of the standard range to be served concurrently
      with [Appellant]’s sentence from Columbia County, Pennsylvania.

         The court accepted [Appellant]’s plea agreement and
      sentenced him on the same day to three months to twenty-four
      months in a state correctional institution to be served concurrently
      with [Appellant]’s sentence from Columbia County. The court
      based its sentence on the guidelines that included a standard
      range of RS-nine months.

         On January 26, 2017, [Appellant] filed a post-sentence motion
      in which he claimed that the co[urt] used incorrect guidelines at
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       sentencing. [Appellant] claimed that the standard range was
       actually RS-four months.

          The court granted [Appellant]’s post-sentence motion on
       January 27, 2017 and vacated the sentence imposed on January
       17, 2[0]17.     On March 6, 2017[,] the court re-sentenced
       [Appellant] to two months to twenty-four months in a state
       correctional institution concurrent to his Columbia County
       sentence. [The court determined Appellant] was not entitled to
       any credit against his sentence as he was serving a sentence in a
       Columbia County case.[1]

          [Appellant] did not file a direct appeal from his sentence. He
       did, however, file a pro se [p]etition for [p]ost-[c]onviction relief.
       The court appointed counsel for [Appellant] and directed the filing
       of an amended petition. Counsel filed an amended petition in
       which he claimed that [Appellant] was entitled to relief because
       he did [not] receive credit for time served from the original
       sentencing date, January 17, 2017 to March 6, 2017, the date of
       his re-sentencing.

           After [a] hearing on December 14, 2017, the court denied
       [Appellant]’s petition for post-conviction relief. [Appellant] timely
       filed his appeal and his [s]tatement of [m]atters [c]omplained of
       on [a]ppeal.

PCRA Court Opinion, 2/14/18, at 1-2.

       Appellant presents a single issue for our review:

       Did the [PCRA] [c]ourt err in denying post[-]conviction relief
       where [Appellant] was denied credit for time served while awaiting
       resentencing?

Appellant’s Brief at 4.




____________________________________________


1 The record reflects that Appellant’s Columbia County sentence concluded in
May 2018, and that after resentencing, his sentence in this Snyder County
case would conclude in March 2019.

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“Our standard in reviewing a PCRA court order is abuse of discretion. We

determine only whether the court’s order is supported by the record and free

of legal error.”   Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.

Super. 2016) (quotations and citation omitted). “The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).

      Appellant challenges the legality of the trial court’s failure to award him

credit for time served from January 17, 2017 to March 6, 2017, the time from

his original judgment of sentence until his resentencing. Appellant’s Brief at

7-9. Appellant maintains that his claim is cognizable under the PCRA as a

challenge to the legality of his sentence.

      At the outset, we note that Appellant is correct that his claim is

cognizable under the PCRA. This Court has explained:

      If the alleged error is thought to be the result of an erroneous
      computation of sentence by the Bureau of Corrections, then the
      appropriate vehicle for redress would be an original action in the
      Commonwealth Court challenging the Bureau’s computation. If,
      on the other hand, the alleged error is thought to be attributable
      to ambiguity in the sentence imposed by the trial court, then a
      writ of habeas corpus ad subjiciendum lies to the trial court for
      clarification and/or correction of the sentence imposed.

      It [is] only when the petitioner challenges the legality of a trial
      court’s alleged failure to award credit for time served as required
      by law in imposing sentence, that a challenge to the sentence [is]
      deemed cognizable as a due process claim in PCRA proceedings.

Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014) (quoting

Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. Super. 1989)). Here,


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because Appellant specifically challenges the legality of the trial court’s failure

to award him credit for time served as required by law in imposing his

sentence, he has raised a claim cognizable in PCRA proceedings.               See

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (“An

appellant’s challenge to the trial court’s failure to award credit for time spent

in custody prior to sentencing involves the legality of sentence.”).

      “Our Supreme Court has stated that an illegal sentence is one that

exceeds the statutory limits.” Commonwealth v. Berry, 877 A.2d 479, 482-

83 (Pa. Super. 2005) (en banc) (quotations and citation omitted). This Court

has “recognized a broader definition of an illegal sentence: if no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction.” Id. (quotations and citation omitted). Thus, we have

held that “a sentence is illegal where a statute bars the court from imposing

that sentence.” Id. at 483.

      Section 9760 of the Judicial Code governs the award of credit for time

served. See 42 Pa.C.S.A. § 9760. Section 9760 states:

      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.




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      (2) Credit against the maximum term and any minimum term shall
      be given to the defendant for all time spent in custody under a
      prior sentence if he is later reprosecuted and resentenced for the
      same offense or for another offense based on the same act or
      acts. This shall include credit in accordance with paragraph (1) of
      this section for all time spent in custody as a result of both the
      original charge and any subsequent charge for the same offense
      or for another offense based on the same act or acts.

      (3) If the defendant is serving multiple sentences, and if one of
      the sentences is set aside as the result of direct or collateral
      attack, credit against the maximum and any minimum term of the
      remaining sentences shall be given for all time served in relation
      to the sentence set aside since the commission of the offenses on
      which the sentences were based.

      (4) If the defendant is arrested on one charge and later
      prosecuted on another charge growing out of an act or acts that
      occurred prior to his arrest, credit against the maximum term and
      any minimum term of any sentence resulting from such
      prosecution shall be given for all time spent in custody under the
      former charge that has not been credited against another
      sentence.

42 Pa.C.S.A. § 9760.

      In support of his claim that the PCRA court erred in failing to award him

credit for time served, Appellant argues that had the trial court initially

sentenced him properly on January 17, 2017, he would not have needed to

file a post-sentence motion and his sentence would have begun to run on that

date. Appellant asserts that because his Columbia County sentence ends prior

to his sentence in this case, the trial court’s initial mistake in sentencing him,

and his decision to challenge it, extended his maximum sentence by just under

seven weeks. Appellant contends, therefore, that the failure to award him

credit for that time period was fundamentally unfair.


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       While neither Section 9760 nor any binding authority from this Court

address the situation facing Appellant, we find the Commonwealth Court’s

decision in Collins v. Commonwealth, Department of Corrections, 848

A.2d 1026 (Pa. Cmwlth. 2004) instructive.2        In Collins, the trial court

sentenced Collins on two criminal informations to two concurrent terms of 7½

to 15 years of incarceration. Id. at 1027. On appeal, the Court vacated one

of the 7½ to 15 years sentences and on remand, the trial court resentenced

Appellant to time served to 15 years on that information.     Id.   The court

ordered Appellant’s sentences to run concurrently. Id. With respect to the

sentence that was vacated, however, the Department of Corrections did not

credit Appellant for the approximately two-and-a-half years he served from

the time the trial court originally imposed the sentence and his resentencing,

thus extending the termination date of that sentence by that amount of time.

Id. at 1028. Collins filed in the Commonwealth Court a petition for review in

the nature of mandamus alleging that the Department of Corrections wrongly

failed to credit him. Id.

       The Commonwealth Court framed the issue as follows:

       [W]here a defendant successfully appeals a conviction that
       includes a sentence that runs concurrently with another
       sentence(s), and the new sentence likewise provides that the
       sentence is to run concurrently with the other sentence, does the
       defendant receive credit for the time between when the order to
____________________________________________


2 “Although the decisions of the Commonwealth Court are not binding on this
Court, we may look to them for their persuasive value.” Heredia, 97 A.3d at
395 n.7.

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     vacate the old sentence is issued and the new sentence is
     imposed?

Id. at 1028.

     The Commonwealth Court concluded that a defendant is entitled to

credit for the time served between the order to vacate a sentence and the

imposition of the new sentence, even when the defendant is already

incarcerated on another concurrent sentence. The court explained:

         If one looks only at Section 9760 of the Sentencing Code,
     whether a defendant receives credit for the time between when
     the order is vacated and a new sentence is imposed appears to
     fall between the seams of its various subsections because nothing
     directly addresses that situation. What appears to be this gap in
     practice is not one because, analytically, when the trial court
     resentences after an appeal is vacated or post-conviction, the trial
     court is “going back” and doing it all over again ab initio and has
     the discretion, within constitutional bounds, to do anything that it
     could have done with that sentence at the time of the initial
     sentencing. Therefore, time spent during the period the sentence
     was vacated can be counted as consecutive time with another
     sentence if so ordered.

         To hold otherwise, that is, that the time between the vacating
     of the order and Collins’ resentencing did not count as time served
     when at all times the trial court ordered that the sentences were
     to run concurrently, would mean that the amount of time that a
     defendant would serve would become depend[e]nt on when the
     “system” got around to reprosecuting his or her case. For
     example, in this case, if the “system” had brought him to trial six
     months earlier, Collins’ maximum release date would have only
     been extended by two years, in and of itself raising due process
     concerns.     Moreover, to hold otherwise would discourage
     prisoners from appealing, because even if they were successful on
     appeal and the trial court issued a reduced sentence on
     resentencing, they could end up serving more time, in essence,
     being punished for having successfully appealed, again implicating
     due process rights. In North Carolina v. Pearce, 395 U.S. 711,
     [] (1969), the United States Supreme Court specifically warned
     against such a “chilling effect” on prisoners taking appeals.

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      Although that case was factually different, it stood for the
      proposition that due process of law requires that those who choose
      to exercise constitutional rights should not be penalized for
      exercising those rights.

Id. at 1029-30 (footnotes omitted).

      We find the Commonwealth Court’s decision and underlying rationale

sound, persuasive, and applicable to this case. Here, similar to Collins, the

trial court vacated Appellant’s sentence while he was serving a concurrent

sentence in another matter. Like Collins, Appellant did not receive credit for

the time served on his sentence from the time the trial court vacated his

sentence and subsequently resentenced him. The trial court declined to award

Appellant credit, despite not ordering the time served during that period to

run consecutive to Appellant’s Columbia County sentence, which as Collins

points out, it could have done. See id.

      Additionally, as in Collins, Appellant was effectively punished for

pursuing his post-sentence rights. The trial court resentenced Appellant after

he prevailed following the filing of a post-sentence motion for reconsideration

of sentence.   It took the trial court just under seven weeks to resentence

Appellant, yet it only reduced the minimum tail of his sentence by one month

while leaving his maximum sentence untouched.        Given that his Columbia

County sentence was set to expire well in advance of his sentence in this case,

the court’s failure to award Appellant credit for the time he served from the

imposition of his original sentence until his resentencing added almost seven

weeks to Appellant’s sentence. Thus, Appellant would have been better off

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having never filed the post-sentence motion. As the Commonwealth Court

emphasized in Collins, treating defendants in such a manner would place a

“chilling effect” on the pursuit of post-sentence rights, a practice that the

United States Supreme Court has specifically rebuked. See id.

      For the above reasons, we conclude that the PCRA court erred in

determining that Appellant was not eligible for credit for time served.

Accordingly, we reverse the order dismissing Appellant’s PCRA petition and

remand for the application of credit for Appellant’s time served from the

imposition of his original judgment of sentence until his resentencing.

      Order reversed. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/22/2018




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