J-S92040-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                   :     IN THE SUPERIOR COURT OF
                                                :           PENNSYLVANIA
              Appellee                          :
                                                :
      v.                                        :
                                                :
JASON PAUL HUGE,                                :
                                                :
              Appellant                         :     No. 1033 WDA 2016

               Appeal from the PCRA Order June 20, 2016
                 in the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000557-2000

BEFORE:     SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY: STRASSBURGER, J.:                      FILED FEBRUARY 10, 2017

      Jason Paul Huge (Appellant) appeals from the order entered on June

20, 2016, which denied his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      On May 19, 2000, Appellant was found guilty after a trial by jury of

criminal   attempt   (burglary),   theft   by       unlawful   taking,   and   criminal

conspiracy to commit burglary. Appellant was sentenced on June 30, 2000,

to five to ten years of incarceration followed by ten years of probation.

Appellant was released from prison in January 2010 and placed on probation

after serving his full term of incarceration.

      On January 25, 2010, an arrest warrant was issued when
      Appellant failed to report to special probation or disclose where
      he was living. Appellant was arrested on June 3, 2010 in
      Jamestown, New York and incarcerated. After a revocation
      hearing on August 2, 2010, Appellant was found in violation of

*Retired Senior Judge assigned to the Superior Court.
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     the terms of his probation, revoked, and resentenced to 6
     months to 23 months of incarceration followed by 5 years of
     probation.

           On June 3, 2011, Appellant was paroled.            Before
     completing his parole sentence, Appellant absconded and an
     arrest warrant was issued. Appellant was taken into custody on
     April 20, 2012 and a revocation hearing was held on July 17,
     2012. The [revocation] court revoked and reimposed the 6
     months to 23 months of incarceration with 462 days of credit for
     time served.2 The [revocation] court also revoked the 5 years of
     probation and imposed an additional 6 to 23½ months of
     incarceration followed by 3 years of probation, concurrent with
     the reimposed sentence. Appellant was stripped of any street
     time. [Appellant appealed to this Court, and we affirmed his
     judgment of sentence on April 29, 2013. See Commonwealth
     v. Huge, 75 A.3d 566 (Pa. Super. 2013) (unpublished
     memorandum).]
           ______
           2
             Credit was given from June 3, 2010 through June 10,
           2011 and from April 20, 2012 through July 17, 2012, as
           calculated by the Erie County Probation and Parole Office
           and the Erie County Clerk of Courts.

            Appellant was paroled on August 26, 2013. On September
     16, 2015, Appellant was arrested. At the revocation hearing on
     November 23, 2015, the [revocation] court found Appellant in
     violation of numerous terms of his probation. The [revocation]
     court revoked Appellant’s parole sentence of 6 to 23½ months of
     incarceration and resentenced him to the 500 days [of] time
     served, which rendered that portion of the sentence served and
     closed.3 The [revocation] court also revoked Appellant’s
     probationary sentence and resentenced him to 1 to 2 years of
     incarceration.
            _____
            3
              Credit was given from April 20, 2012 through July 17,
            2012, September 16, 2015 through November 23, 2015
            and included 25 days Appellant served in New York on an
            Erie County detainer.

          On December 1, 2015, Appellant filed a motion for post-
     sentence relief. The motion was denied by order dated



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J-S92040-16


       December 9, 2015. Appellant did not file a direct appeal related
       to this revocation.

              On May 2, 2016, [Appellant] filed a motion for time credit
       while in custody pursuant to 42 Pa.C.S. [§] 9760. Appellant’s
       motion was denied by order dated May 18, 2016, as his time to
       file a motion for time credit and/or notice of appeal related to his
       November 23, 2015 resentencing expired. Attorney William J.
       Hathaway was appointed counsel for Appellant on May 26, 2016.

             On June 1, 2016, Appellant filed a second motion for time
       credit while in custody pursuant to 42 Pa.C.S. [§] 9760. The
       [revocation] court issued an order on June 20, 2016, finding
       Appellant’s motion moot, as he had previously been given credit
       for 500 days, which closed out his incarceration sentence
       imposed after his third revocation.

PCRA    Court   Opinion,   8/16/2016,    at     2-3   (unnecessary   capitalization

omitted).1

       Appellant timely filed a notice of appeal, and both Appellant and the

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

       On appeal, Appellant sets forth one issue for our review: “Whether the

lower court erred in denying PCRA relief in the nature of [a] provision of

proper time credit?” Appellant’s Brief at 2.2

       In considering Appellant’s issue, we bear in in mind the following. “A

challenge to the trial court’s failure to award credit for time served prior to


1
  The court properly treated Appellant’s motion for time credit as a PCRA
petition. See Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013).
2
   We note with disapproval that the Commonwealth’s brief merely
incorporates the PCRA court opinion instead of responding to Appellant’s
argument.


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sentencing involves the legality of a sentence.” Commonwealth v.

Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009).

     As long as the reviewing court has jurisdiction, a challenge to the
     legality of the sentence is non-waivable and the court can even
     raise and address it sua sponte. Issues relating to the legality of
     a sentence are questions of law[.] As with all questions of law
     on appeal, our standard of review is de novo and our scope of
     review is plenary.

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (internal

citations and quotation marks omitted).

     The governing statute provides the following.

     (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. § 9760.

     In his appeal, Appellant challenges the allocation of credit time for the

time he spent incarcerated between July 17, 2012 and August 26, 2013.

During that time, he was serving two separate concurrent sentences of 6 to

23½ months each.      Thus, he suggests the “parole portion should have

maxed out on March 26, 2013[.]”       Appellant’s Brief at 4.    Then, when

Appellant was sentenced on November 23, 2015, the revocation court erred

and sentenced Appellant illegally by crediting time spent between March 26,

2013 and August 26, 2013 to that parole sentence.



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J-S92040-16


        This argument is essentially the same argument Appellant set forth in

his prior appeal to this Court. In that appeal, Appellant challenged the trial

court’s allocation of credit for 463 days of incarceration prior to his July 17,

2012 sentence.      Counsel for Appellant explained that Appellant “seems to

argue that since the sentences were imposed concurrently originally, the

time credit he receives should also be imposed concurrently, on both

sentences.” Huge, 75 A.3d 566 (unpublished memorandum at 10).               This

Court rejected that argument, concluding that this challenge was “without

merit” because Appellant “does not have the right to receive double credit.”

Id. at 11.

        Here, Appellant’s contention that the trial court sentenced him illegally

by crediting time incarcerated between March 26, 2013 and August 26, 2013

to one sentence versus the other sentence is also without merit. Appellant

was serving two concurrent six-to-23-month sentences.             After he was

paroled again in August of 2013, and then arrested in 2015, it was in the

revocation court’s discretion as to how to allocate the time served.         The

revocation court allocated the time served to Appellant’s first sentence,

rather than his second sentence, which it is entitled to do under section

9760.

        As the PCRA court pointed out,

        [w]hen [Appellant] was paroled on August 26, 2013, he had
        served 406 days leaving approximately 309 days of his parole



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J-S92040-16


     sentence. At the revocation hearing on November 23, 2015,
     [Appellant] was revoked at each part of the split sentence. At
     the time of the revocation, [Appellant] had served 500 days
     since his last revocation, 38 more than he presently contends.
     Appellant was given credit for the 500 days on the 6 to 23½
     month sentence and the sentence was discharged.

PCRA Court Opinion, 8/16/2016, at 3-4.

     Based on the foregoing, we conclude that Appellant is not serving an

illegal sentence. See, e.g., Commonwealth v. Crump, 995 A.2d 1280,

1284 (Pa. Super. 2010) (“[A] defendant [is not] 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.”); McCray v. Pa. Dept. of

Corr., 872 A.2d 1127, 1136 (Pa. 2005) (Castille, J. concurring) (“[A] VOP

judge adequately ‘credits’ a defendant for ‘time spent in custody’ so long as

he does not impose a VOP sentence which, when combined with the initial

sentence, exceeds the statutory maximum.”).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2017




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