J-S26038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

RICHARD SCOTT WANAMAKER

                            Appellant                     No. 1678 MDA 2014


           Appeal from the Judgment of Sentence September 3, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003715-2004


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                   FILED MAY 15, 2015

        Appellant Richard Scott Wanamaker appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas following

his convictions for statutory sexual assault, indecent assault of a person less

than 13 years of age, and corruption of minors. 1            We affirm Appellant’s

convictions,    but   vacate     his   judgment   of   sentence   and   remand   for

resentencing.

        The trial court set forth the relevant facts and procedural history of

this appeal as follows:

           Appellant sexually assaulted his            female cousin an
           estimated 50 times between January          1, 2002, and March
           3, 2004, in Conestoga Township,              Lancaster County.
           During this time, when the victim was       between the ages of
____________________________________________


1
    18 Pa.C.S. §§ 3122.1, 3126(a)(7), and 6301(a), respectively.
J-S26038-15


           nine and eleven, Appellant engaged in sexual intercourse
           with her, and fondled her vagina and buttocks.
           Additionally, he showed her pornography and threatened
           harm if she disclosed the sexual contact. By criminal
           Information docketed to No. 3715 of 2004, Appellant was
           charged on June 30, 2004, with rape, statutory sexual
           assault, aggravated indecent assault, indecent assault of a
           person less than 13 years of age, and corruption of
           minors.

           Appellant originally entered a straight guilty plea before
           the Honorable Paul K. Allison on January 30, 2006, to the
           charges of statutory sexual assault, indecent assault and
           corruption of minors. The remaining two charges were
           nolle prossed. Appellant’s conviction for these offenses
           triggered the provisions of the Pennsylvania statute
           commonly referred to as “Megan's Law,” 42 [Pa.C.S.] §§
           9791 et seq.[2]     Accordingly, sentencing was deferred
           pending the completion of an evaluation conducted by the
           Pennsylvania Sexual Offender Assessment Board (SOAB).
           Upon completion of the evaluation, a sexually violent
           predator (SVP) hearing was scheduled for July 19, 2006.

           At the hearing on July 19, 2006, Appellant presented a
           motion to withdraw his guilty plea. Judge Allison granted
           Appellant’s request at that time, and ordered the case
           listed for trial during the September 2006 Session of
           Criminal Court. Appellant once again changed his mind
           and on November 6, 2006, Appellant tendered a straight
           guilty plea to the charges of statutory sexual assault,
           indecent assault and corruption of minors. As before, the
           remaining two charges were nolle prossed.

           A hearing to determine whether Appellant was an SVP
           pursuant to 42 [Pa.C.S.] § 9795.4(e)[3] was held at the
           time of the guilty plea on November 6, 2006. At the
           hearing, the Commonwealth and Appellant stipulated to
           assessments done by Dr. Robert Stein, the Commonwealth
____________________________________________


2
    This statute has been replaced by 42 Pa.C.S. § 9799.41.
3
    This statute has been replaced by 42 Pa.C.S. § 9799.24.



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           expert, and Dr. Timothy Foley, the defense expert. After
           considering both expert reports and the arguments of
           counsel, Judge Allison found that the Commonwealth had
           proven, by clear and convincing evidence, that Appellant
           was an SVP.

           Appellant received a split sentence of 9 to 23 months,
           followed by 8 years of probation, for the offense of
           statutory sexual assault, and a concurrent sentence of 5
           years of probation for the indecent assault charge. The
           corruption of minors charge merged for sentencing
           purposes with the statutory sexual assault charge. As a
           result of his conviction, Appellant is required to register
           with the Pennsylvania State Police for his lifetime.

           Appellant filed a timely direct appeal to the Superior Court
           of Pennsylvania challenging the trial court’s finding that he
           was an SVP. On April 21, 2008, a three-judge panel of the
           Superior Court affirmed the November 6, 2006, judgment
           of sentence, which included a determination of SVP status,
           in an unpublished memorandum. Appellant’s petition for
           allowance of appeal was denied by the Supreme Court of
           Pennsylvania on March 20, 2008.

           Appellant served the maximum of the jail component of his
           split sentence on Count 1 and commenced his probation on
           October 10, 2008. On May 22, 2009, a capias and bench
           warrant were issued for (1) failure to report for a probation
           appointment on May 21, 2009, (2) failure to maintain
           financial accountability (failure to pay for the polygraph),
           and (3) ongoing denial of the incident offense. On June
           15, 2009, the capias was amended to include an additional
           allegation that Appellant was charged with a new criminal
           offense. On June 11, 2009, Appellant had been charged at
           Information No. 3182-2009 with the offense of Failure to
           Comply      with   Registration      of   Sexual     Offender
                          2
           Requirements.
              2
                  18 [Pa.C.S.] § 4915(a)(1).[4]

____________________________________________


4
    This statute has been replaced by 18 Pa.C.S. § 4915.1.



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       On July 23, 2009, at a parole violation hearing before the
       Honorable Margaret C. Miller, Appellant was found to have
       violated the conditions of probation and parole. Parole was
       revoked but sentencing was deferred pending resolution of
       the new charge at No. 3182-2009. On November 12,
       2009, Appellant appeared before Judge Miller and was
       sentenced on No. 3182-2009, Failure to Register, to 6 to
       23 months incarceration followed by 5 years of probation,
       with credit served from June 11, 2009. On that same
       date, Appellant was sentenced on the parole violation
       docketed at No. 3715-2004. On Count 1 (statutory sexual
       assault) Appellant received a split sentence of one year
       less a day to two years[’] less a day incarceration, to be
       followed by six years of probation.          Appellant was
       sentenced on Count 2 (indecent assault) to a five year
       probationary period concurrent with Count 1.         It was
       specifically noted that the sentence on this docket began
       that day (November 11, 2009) and credit was given from
       June 9, 2009 to June 11, 2009, due to bail being set on
       No. 3182-2009 on June 11, 2009, and Appellant was
       detained on the violation on the docket at issue on June 9,
       2009. The time credit from June 11, 2009, until November
       11, 2009, went to No. 3182-2009.

       Appellant filed a motion for modification of sentence on
       December 11, 2009, which was denied by Judge Miller on
       December 28, 2009. On July 27, 2010, Appellant filed a
       pro se petition for early parole, which was denied by Judge
       Miller on July 30, 2010.       [Appellant] was paroled on
       November 4, 2010.

       On August 11, 2011, a capias and bench warrant were
       issued on Nos. 3715-2004 and 3182-2009, for Appellant’s
       discharge from sex offender treatment at Commonwealth
       Clinical Group on August 9, 2011, for failure to comply
       with the treatment contract. Specifically, Appellant was
       non-compliant with attendance at weekly groups.

       On September 21, 2011, at a parole violation hearing
       before the Honorable James P. Cullen, Appellant was found
       to have violated the conditions of probation and parole at
       Docket Nos. 3715-2004 and 3182-2009, and was
       sentenced as follows. At Docket No. 3715-2004, on Count
       1 (statutory sexual assault), Appellant’s parole was

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       revoked and he was sentenced to serve the unexpired
       balance. Judge Cullen also directed Appellant to serve a
       consecutive probation of five years on Count 1. On Count
       2 (indecent assault), Appellant’s probation was revoked
       and he received a new five year term of probation,
       consecutive to the parole sentence at Count 1. At Docket
       No. 3182-2009, Appellant’s parole was revoked on Count 1
       and Appellant was sentenced to the balance of the
       maximum sentence. Appellant served the maximum of the
       jail component of his second split sentence on Count 1 at
       No. 3715-2004, and commenced his probation on August
       28, 2012.

       On May 21, 2013, a walk-in capias was issued on Nos.
       3715-2004 and 3182-2009, for Appellant’s failure to
       comply with registration of sexual offenders in October of
       2012. Appellant was served with a copy of the walk-in
       capias on May 31, 2013. On August 8, 2013, a marijuana
       pipe and K2 synthetic marijuana were found in Appellant’s
       residence during a home visit by staff from the York
       County Adult Probation and Parole Office.          Appellant
       admitted the contraband belonged to him. Therefore, on
       August 29, 2013, the walk-in capias was amended to
       include the new drug charges in York County and the
       Honorable Jeffery D. Wright revoked the walk-in status,
       and issued a bench warrant for Appellant’s arrest.

       On October 30, 2013, [the c]ourt found a probation
       violation at Nos. 3715-2004 and 3182-2009, and
       remanded Appellant to Lancaster County Prison for a later
       sentencing following the filing of a pre-sentence
       investigation report. On February 12, 2014, Appellant was
       sentenced as follows. At No. 3715-2004, as to each count,
       Appellant received a split sentence of 11-1/2 to 23
       months[’] incarceration at LCP, followed by 3 years of
       consecutive probation. The sentences were ordered to be
       served concurrently.     Appellant was eligible for parole
       without petition after successfully completing two sessions
       of sex offender counseling. The probation was terminated
       as to the charge at No. 3182-2009. Parole was ultimately
       granted on March 11, 2014, and was due to expire on July
       28, 2015, on both counts of indecent assault and statutory
       sexual assault at No. 3714-2004.


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       On April 9, 2014, a capias and bench warrant were issued
       on No. 3715-2004 for Appellant’s violation of Condition No.
       2 of the Lancaster County Adult Probation and Parole
       Office Sex Offender Program in that he failed to maintain
       an approved address. Through a series of circumstances,
       Appellant was reduced to a state of homelessness from
       March 11, 2014, through April 9, 2014. On July 16, 2014,
       [the c]ourt found a probation and parole violation and each
       were revoked.      Sentencing was deferred pending an
       update of Appellant’s pre-sentence investigation report.

       On September 3, 2014, Appellant stood for sentencing.
       This Court imposed the statutory maximum sentence on
       both counts; that is, a sentence of five to ten years[’]
       incarceration on Count 1 (statutory sexual assault) and a
       sentence of two and one-half to five years[’] incarceration
       on Count 2 (indecent assault). The sentences were to be
       served concurrently. Appellant was given pre-sentence
       credit totaling 1,418 days on Count 1 and 369 days on
       Count 2. [The c]ourt based those totals on information
       provided by the Adult Probation and Parole Office as set
       forth at page 2 of the PSI report. An additional 149 days
       of pre-sentence incarceration stemming from the issuance
       of the last capias on April 9, 2014, was also added to
       Appellant’s time credit.

       Appellant filed a motion to modify sentence on September
       15, 2014, claiming the [c]ourt’s sentence on Count 1 was
       illegal under 42 [Pa C.S.] § 9760 because Appellant did not
       receive an additional 148 days of credit for the time period
       from June 9, 2009, through November 4, 2009, and an
       additional 370 days of credit for the time period from
       August 10, 2011, through August 15, 2012. Appellant
       further claims that the [c]ourt’s sentence, although within
       the sentencing guidelines, was manifestly excessive and an
       abuse of discretion. This [c]ourt failed to act on the
       motion prior to the 30th day, and Appellant filed a timely
       notice of appeal from his judgment of sentence on October
       3, 2014, following his revocation of probation.         See
       Commonwealth          v.   Coleman,      721     A.2d   798
       (Pa.Super.1998) (holding that the filing of a motion to
       modify sentence, following a revocation of probation, does
       not extend the appeal period; a defendant seeking to


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         appeal a revocation order must do so within the thirty-day
         time period prescribed by Pa. R.A.P. 903(a)).

Trial Court Opinion, filed November 14, 2014, at 1-7 (citations to the record

and one footnote omitted).

      On October 6, 2014, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and he timely complied on October 27, 2014. Appellant raises the following

issues for our review:

         IN REVOKING THE PROBATION COMPONENT OF AN
         ORIGINAL SENTENCE THAT WAS OF THE TYPE KNOWN AS
         A “SPLIT SENTENCE,” WAS NOT THE COURT’S
         IMPOSITION OF A MAXIMUM SENTENCE OF 5 TO 10 YEARS
         ILLEGAL UNDER 42 PA.C.S. §9760 BECAUSE IT EXCEEDED
         THE STATUTORY MAXIMUMS FOR A FELONY OF THE
         SECOND DEGREE AFTER ACCOUNTING FOR PERIODS OF
         TIME THAT [APPELLANT] SERVED IN JAIL THROUGHOUT
         THE PROCEDURAL HISTORY OF THIS DOCKET NUMBER?

         WAS THE IMPOSITION OF AN AGGREGATE PROBATION
         VIOLATION   SENTENCE    OF   5   TO   10   YEARS[’]
         INCARCERATION     CLEARLY    UNREASONABLE,      SO
         MANIFESTLY EXCESSIVE AS TO CONSTITUTE AN ABUSE
         OF DISCRETION, AND INCONSISTENT WITH THE
         PROTECTION OF THE PUBLIC, THE GRAVITY OF THE
         OFFENSES, AND [APPELLANT’S] REHABILITATIVE NEEDS
         WHERE     [APPELLANT]     COMMITTED      TECHNICAL
         VIOLATIONS   ONLY   AND    WHERE    THE   SENTENCE
         CONSTITUTED THE STATUTORY MAXIMUM?

Appellant’s Brief at 6.

      For purposes of disposition, we will first address Appellant’s second

issue. In his second issue, Appellant challenges the discretionary aspects of

his sentence.   Appellant argues his sentence was manifestly excessive in



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light of the fact that the revocation proceeding was based on technical

violations alone. He claims that the court abused its discretion by applying

the guidelines when it was clearly unreasonable to do so. We disagree.

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

        An appellant challenging the discretionary aspects of his
        sentence must invoke this Court’s jurisdiction by satisfying
        a four-part test: (1) whether appellant has filed a timely
        notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
        the issue was properly preserved at sentencing or in a
        motion to reconsider and modify sentence, see
        Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a
        fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
        substantial question that the sentence appealed from is
        not appropriate under the Sentencing Code.

Id.

      Presently, Appellant filed a timely notice of appeal and preserved his

issues in a post-sentence motion.     Further, Appellant’s brief includes a

concise statement of reasons relied upon for allowance of appeal with

respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P.

2119(f). See Appellant’s Brief at 21-24. We now must determine whether

Appellant presents a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code.




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      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         A substantial question exists only when the appellant
         advances a colorable argument that the sentencing judge’s
         actions were either: (1) inconsistent with a specific
         provision of the Sentencing Code; or (2) contrary to the
         fundamental norms which underlie the sentencing process.

Id. (internal citations omitted).

      “An appellant making an excessiveness claim raises a substantial

question when he sufficiently articulates the manner in which the sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.”      Commonwealth         v.   Raven,    97   A.3d    1244,    1253

(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations

omitted).

      An appellant presents a substantial question “when a sentence of total

confinement, in excess of the original sentence, is imposed as a result of a

technical violation of parole or probation.” Commonwealth v. Sierra, 752

A.2d 910, 913 (Pa.Super.2000).

      Here, the trial court originally sentenced Appellant to a split sentence

of 9-23 months of incarceration, followed by 8 years of probation for

statutory sexual assault, and a concurrent sentence of 5 years of probation

for indecent assault. After serving the maximum of the jail component of his



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split sentence, Appellant commenced his probation on October 10, 2008. He

violated the terms of his probation several times, and the court sentenced

him for each violation.    Most recently, the court sentenced Appellant to

concurrent terms of 5-10 years’ incarceration for statutory sexual assault

and 2½-5 years’ incarceration for indecent assault.       Because Appellant’s

sentence of total confinement imposed as a result of a technical probation

violation exceeds his original sentence, Appellant raises a substantial

question for our review.

      We observe:

         The imposition of sentence following the revocation of
         probation is vested within the sound discretion of the trial
         court, which, absent an abuse of that discretion, will not be
         disturbed on appeal. An abuse of discretion is more than
         an error in judgment – a sentencing court has not abused
         its discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa.Super.2012).

Upon revoking probation, a sentencing court may choose from any of the

sentencing options that existed at the time of the original sentencing,

including incarceration. 42 Pa.C.S. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(1) the

defendant has been convicted of another crime; or (2) the conduct of the

defendant indicates that it is likely that he will commit another crime if he is

not imprisoned, or (3) such a sentence is essential to vindicate the authority

of the court.” 42 Pa.C.S. § 9771(c).


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      Technical probation violations “can support revocation and a sentence

of incarceration when such violations are flagrant and indicate an inability to

reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.Super.2007);

see also Sierra, 752 A.2d at 912 (incarceration was proper after appellant

failed to keep probation appointments).

      Although Appellant maintains that his probation violation was not

flagrant as he only failed to report a change of address, his repeated

probation violations indicate an inability to reform. At sentencing, the court

reasoned:

         [W]hat concerns me more than anything else is…your lack
         of honesty and candor, the manipulation, the deception,
         and the downright lies to the Probation Department. You
         have been under court supervision since 2004. You’re not
         a rookie to this process. You know what is required of
         you. Ongoing manipulation, deception and lies with people
         who have been found to be [SVPs] is dangerous because
         those are the tools of people who victimize others.

         You have been given many opportunities and you know
         how this works; and yet even as the process was going on
         to verify your address, you continued with this charade[.]
         [Y]ou continued with the lies.

                                  *     *      *

         The court has considered the pre-sentence investigation
         and all of the attachments in detail. I have considered the
         guidelines of the Sentencing Code and the sentencing
         guidelines. I have considered the character of [Appellant].
         I have considered arguments of counsel, as well as the
         statement of [Appellant]. The court has considered the
         penalties authorized by the legislature.

         Incarceration is warranted because a lesser sentence
         would depreciate the seriousness of the crime and prevent

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        a danger to the community, given [Appellant’s] ongoing
        behavior.

        It cannot be said, [Appellant], that you have not been
        given the opportunity to comply. Again, you know what
        you’re required to do and you choose to continue to lie and
        manipulate.

N.T., 9/3/14, at 12-14 (some capitalization omitted).

     Upon revoking Appellant’s probation, the court sentenced Appellant to

incarceration, which was one of the options that existed at the time of

original sentencing.   See 42 Pa.C.S. § 9771(b).   The court explained that

Appellant’s probation violation was flagrant and indicated an inability to

reform. See Carver, supra. We find no abuse of discretion in the court’s

sentence.

     In his other issue on appeal, Appellant argues his sentence is illegal

because it exceeds the statutory maximum allowed by law. Specifically, he

contends the imposition of 5-10 years’ incarceration following the revocation

of his probation exceeds the statutory maximum for statutory sexual assault

because he was previously sentenced to a period of incarceration ranging

from a minimum of nine months to a maximum of twenty-three months and

has not been given credit for all of the time served on the earlier sentence.

Appellant concludes, and both the trial court and the Commonwealth

concede, that the court erred by failing to award Appellant an additional 383

days of sentencing credit for time served. We agree.




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      “The issue of whether a sentence is illegal is a question of law and our

scope of review is plenary.”   Commonwealth v. Crump, 995 A.2d 1280,

1283 (Pa.Super.2010) (quoting Commonwealth v. Maxwell, 932 A.2d

941, 942 (Pa.Super.2007)).

         When determining the lawful maximum allowable on a split
         sentence, the time originally imposed cannot exceed the
         statutory maximum. See 42 Pa.C.S. § 9754; 42 Pa.C.S. §
         9756; Commonwealth v. Nickens, 393 A.2d 758, 759
         ([Pa.Super.]1978); Commonwealth v. Perkins, 448 A.2d
         70 ([Pa.Super.1982). Thus, where the maximum is ten
         years, a defendant cannot receive a term of incarceration
         of three to six years followed by five years[’] probation.
         However, in a situation where probation is revoked on a
         split sentence, as in the case sub judice, a defendant is not
         entitled to credit for time spent on probation. 42 Pa.C.S. §
         9771(b); see also 42 Pa.C.S. § 9760 (credit for time
         served). Nor is a defendant automatically granted credit
         for time served while incarcerated on the original sentence
         unless the court imposes a new sentence that would result
         in the defendant serving time in prison in excess of the
         statutory maximum.        Commonwealth v. Yakell, 876
         A.2d     1040     (Pa.Super.2005);    Commonwealth         v.
         Williams, 662 A.2d 658 ([Pa.Super.]1995).

Id. at 1284-84.

      Here, Appellant has already spent 2,170 days (5.95 years) in prison,

and the court sentenced him to the maximum sentence of 5-10 years’

incarceration for statutory sexual assault. Thus, Appellant is correct that the

sentence, when combined with the time he has already served, exceeds the

statutory maximum unless he is given credit for time previously served.

Although the court gave Appellant credit for most of his days of




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incarceration, the court failed to give him credit for 383 days of that time

served, and he is entitled to it.

      The relevant statute provides, in pertinent part:

         § 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.

         (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


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         spent in custody under the former charge that has not
         been credited against another sentence.

42 Pa.C.S. § 9760.

      Here, the trial court explains:

         The summary in the PSI gives Appellant no credit
         whatsoever for the periods of incarceration on the second
         violation proceeding.     Appellant was incarcerated on
         August 10, 2011, received the unexpired balance on Count
         1 at No. 3715-2004 on September 21, 2011, and was
         released on August 28, 2012. Appellant is entitled to 383
         days of additional credit for the time period from August
         10, 2011, through August 28, 2012.

Trial Court Opinion at 9.

      Accordingly, we vacate the judgment of sentence, and remand with

instructions that the sentencing court apply credit to the balance of

Appellant’s sentence for 383 days he was incarcerated from August 10,

2011, through August 28, 2012.

      Convictions affirmed. Judgment of sentence vacated. Remanded with

instructions. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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