J-A30024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA CAIN ABEL,                          :
                                               :
                       Appellant.              :   No. 283 WDA 2018


          Appeal from the Judgment of Sentence, November 13, 2017,
                in the Court of Common Pleas of Greene County,
             Criminal Division at No(s): CP-30-CR-0000043-2017.


BEFORE:      SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MARCH 20, 2019

        Joshua Cain Abel appeals from the judgment of sentence imposed in

Greene County after entering guilty pleas to robbery, criminal attempt to

commit robbery, three counts of terroristic threats, three counts of simple

assault, and theft by unlawful taking.1 Abel requests the application of credit

for time served. After careful review, we vacate and remand with instructions.

        The relevant facts and procedural history, as gleaned from the certified

record, are as follows. Following a series of robberies, spreading over three

Pennsylvania counties, authorities arrested Abel in West Virginia on February

4, 2016. Abel also faced criminal charges in West Virginia. On February 5,

2016, Trooper William Brown of the Pennsylvania State Police, charged Abel

with robbery and other related offenses committed at Gabler’s Drug Store
____________________________________________


1   18 Pa.C.S.A §§ 3701(a)(1)(ii), 901, 2706, 2701, and 3921.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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located in Greene County, Pennsylvania.          Although Abel was also facing

prosecutions for similar robberies in Westmoreland and Fayette Counties,

West Virginia held Abel on a Greene County detainer.

       The West Virginia court imposed a “time served” sentence on the West

Virginia conviction on or about December 21, 2016, thereby making Abel

available to Pennsylvania pursuant to his waiver of extradition. 2    Abel was

brought to Pennsylvania on January 13, 2017. On June 5, 2017, the Fayette

County court accepted Abel’s guilty plea and sentenced him to two to four

years’ incarceration concurrent to his West Virginia sentence. Then, on August

3, 2017, the Westmoreland County court imposed a concurrent sentence of

two to four years’ incarceration, after Abel plead guilty to charges related to

another pharmacy robbery. The certified record does not establish that Abel

received any credit for time served as to any of his sentences.

       Abel pled guilty to charges in the current case in Greene County on

August 25, 2017. The court ordered a pre-sentence investigation prior to

sentencing.      The trial court then went over the applicable sentencing

guidelines and the pre-sentence report was admitted into evidence.3 The court
____________________________________________


2 As shall be shown infra, the certified record contains very little information
regarding the various sentences imposed on Abel. Abel relies upon his
reproduced record, while the Commonwealth relies upon information in the
pre-sentence report. The pre-sentence report is silent as to any time credit
Abel had previously received.

3 The District Attorney told the trial court that the person who “basically put
together all the essential information for the Court,” was not present, but



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then heard testimony from Abel and his mother, as well as counsel for Abel

and the Commonwealth. Ultimately, the trial court sentenced Abel to four to

eight years’ incarceration that were to run concurrent with any previously

imposed sentence, with credit for time served from December 21, 2016 to

June 5, 2017.

       Abel filed a motion for reconsideration of sentence, which the trial court

denied following a hearing. Abel filed a timely pro se notice of appeal, and

the trial court subsequently appointed current counsel. Both Abel and the trial

court have complied with Pa.R.A.P. 1925.

       Abel presents the following issues for our consideration:

              Did the sentencing court err in failing to credit [Abel] for
          all time committed for the offense for which he was charged,
          including time awaiting extradition from out of state

                     and/or

             Should the Superior Court remand the matter to the
          sentencing court for findings and recalculation such that the
          [sentencing court’s] calculation for time served may be
          properly reviewed?

Abel’s Brief at 10. We will address these claims together.

       A claim based upon the failure to credit time served is a challenge to the

legality of the sentence. Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.


____________________________________________


rather, a different member of the staff was present. Id. at 9. Defense counsel
also informed the trial court that Abel has been in custody continuously from
the date he was first arrested in West Virginia on February 4, 2016,
approximately twenty-one months.


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Super. 2014). Issues relating to the legality of a sentence are questions of

law, and as such, our standard of review is de novo and our scope of review

is plenary. Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa. Super.

2013).

      Concerning credit for time served, the Pennsylvania Sentencing Code

provides in relevant part as follows:

         § 9760. Credit for time Served

         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.

                                        ***

          (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(1) and (4).

      Generally, a defendant is entitled to receive full credit for time spent in

custody on a criminal charge. 42 Pa.C.S.A. § 9760(1). However, “The

operative rule ... is that a defendant should receive credit only once for time

served before sentencing.” Commonwealth v. Merigris, 681 A.2d 194, 195

(Pa. Super. 1996).


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      Abel admits he received credit for the period between December 21,

2016, and June 5, 2017, but contends that “the record does not clearly reflect

how the [trial court] calculated the credit for time served[.]” Abel’s Brief at

14. According to Abel:

            The trial court did not allow [Abel] credit from the time
         of his arrest in February 2016 in West Virginia on an arrest
         [warrant] prior to requisition and waiver of extradition
         through the date of sentencing on November 11, 2017,
         when [Abel] was sentenced concurrently to other sentences.
         The Court without explanation allowed only credit for the
         period December 21, 2016 to June 5, 2017. The matter
         should be remanded to the trial court to credit [Abel] all
         time from February, 2016.

Abel’s Brief at 17.

      Our review of the record does not settle this discrepancy.          The only

evidence of record regarding the issue of credit for time served is as follows:



                  [DISTRICT ATTORNEY]: So, I think -- I think from
         the pre-sentence investigation, and from the impression
         that was given to counsel, there was some indication that
         he was still serving [the West Virginia] sentence. My
         understanding is that there is no detainer [for] him. The
         pre-sentence says he received a one to four-year term of
         incarceration, but the Court is familiar with West Virginia’s
         sentences - -

                      THE COURT: It’s odd compared to ours.

                   [DISTRICT ATTORNEY]: So, when he came here,
         he did not come via interstate detainer, he basically waived
         extradition and they gave him to us. So, I don’t have any
         indication that he is still serving that sentence. So, the - -
         and the reason why that’s important is because we don’t
         believe he received credit for some of the time that he was
         in Pennsylvania because Westmoreland County did not give

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       him credit, and Fayette County did not give him credit,
       because Greene County brought him back - -

                     THE COURT: Okay.    I could see how that could
       happen.

                [DISTRICT ATTORNEY]: Okay. And then, he was
       sentenced in Fayette and then he was sentenced in
       Westmoreland, and they gave him credit for certain time,
       but not for all the time.

                     THE COURT: Okay.

               [DISTRICT ATTORNEY]: There’s a chunk of time
       for which he did not receive credit, it appears, from
       December 21, 2016 to June 5, 2017, which is when he was
       sentenced in Fayette County at 101 of 2017.

                     THE COURT: Okay.

              [DISTRICT ATTORNEY]: And, the Court will note
       from the pre-sentence [report], he was sentenced in
       Westmoreland County on August 3, 2017.

                     THE COURT: Okay.

                 [DISTRICT ATTORNEY]: So, on June 5th, Fayette
       County gave him a two to four, and then, I guess it’s a
       partially concurrent - -

                THE COURT: June 5th - - and his plea here was
       August, right?

                     [DISTRICT ATTORNEY]:    His plea here was in
       August.

                     THE COURT: Okay.

                     [DISTRICT ATTORNEY]: So, - -

                     THE COURT: June 5th - - okay. Go ahead.

               [DISTRICT ATTORNEY]: June 5th they sentenced
       him and then he was sentenced subsequently concurrent as
       of August 3rd in Westmoreland. So, right now - -

                     THE COURT: Well, wait. What happened on June
       5th   then?


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                  [DISTRICT ATTORNEY]: June 5th he was sentenced
         in Fayette County - -

                  THE COURT: Oh, Fayette?

                  [DISTRICT ATTORNEY]: - - two to four. And then,
         August 3rd, sentenced concurrent as of that date, and
         counsel can correct me if I’m incorrect, two to four. So, it’s
         --

                  THE COURT: In Westmoreland?

                  [DISTRICT ATTORNEY]:           - - yeah.     So, it’s
         overlapping, concurrent.

                  THE COURT: Okay.

                   [DISTRICT ATTORNEY]: So, - - but the only credit
         - - the only credit for which he has not received credit, which
         he is due by this Court today is for that period of time.

      N.T., 11/13/17, at 3-6.

      The District Attorney then discussed a small amount of restitution owed

by Abel. The trial court then attempted to calculate the appropriate amount

of credit to which Abel was entitled:

                    THE COURT: Okay. Just one second. May - - so,
         - - like - -

                 [DISTRICT ATTORNEY]: Oh, you want the dates?
         I mean - -

                  THE COURT: No. I’m just kind of - -

                  [DISTRICT ATTORNEY]: - - the numbers?

                 THE COURT: - - trying to - - so, it’s something like
         five months, sixteen days?

                 [DEFENSE COUNSEL]:           That sounds about right,
         Your Honor.

                                        ***



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                  THE COURT: And, you said - - so, that’s two to
        four from June 5th, and there’s a two to four from August
        3rd, and - -

                [DISTRICT      ATTORNEY]:         So,   its   partially
        concurrent - -

                THE COURT:        - - West Virginia has           that
        indeterminate sentence, or however they do that.

                [DISTRICT ATTORNEY]:           Which - - my
        understanding is, I don’t know that he’s being - - serving
        that.

                  THE COURT: Yeah. Did you represent him in West
        Virginia, by any chance?

                   [DEFENSE COUNSEL]: No, Your Honor. And, what
        I--

                  THE COURT:     Yeah, their sentencing scheme is
        different.

                  [DEFENSE COUNSEL]: I’ve learned that the hard
        way. What I think happened was, we were under the
        impression because of this parole date versus discharge,
        you could either, you know - - he could have either done
        one or two, so we were under the impression that he was
        trying to do two to four and be discharged at two - -

                   THE COURT: In West Virginia?

                  [DEFENSE COUNSEL]: Yeah. But, what it turns
        out was that he actually was paroled at one. So, by the time
        he finally was brought here - - and your County was the first
        to bring him up here.

                   THE COURT: So, then - - so, that’s why there is
        some - -

                [DEFENSE COUNSEL]: Yes.          And, the other
        counties didn’t catch up to Greene County for several
        months, and that time couldn’t have been taken anyways.

                   THE COURT: Okay.

N.T. 11/13/17, at 6-8.


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      The Commonwealth contends that the trial court “properly gave credit

for time served that was not already credited toward another sentence.”

Commonwealth’s Brief at 6.         The record neither supports nor refutes this

position, as it does not provide us with the information needed to verify

whether Abel received credit, on any previous sentence, for the time from

February 4, 2016 to June 16, 2016, and from June 5, 2017 to November 13,

2017. Thus, we cannot say with certainty whether Abel has been awarded

credit for all time served.

      Accordingly, in the interest of caution, we remand for a hearing in order

to examine the award of credit for time served. Abel is not entitled to “double

credit” – a duplicate award of credit for time served at the multiple dockets.

Merigris, supra. Rather, we instruct the trial court to determine whether

Abel has been given credit for time served from February 4, 2016 to June 16,

2016, and from June 5, 2017 to November 13, 2017, at the West Virginia,

Fayette, Westmoreland, or Greene County dockets. If not, the trial court is

directed to award the unaccredited time to Abel’s Greene County sentence.

      Judgment     of   sentence    vacated.     Remanded    with   instructions.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2019




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