J-S76023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DAMIEN DUVELL SPEED

                        Appellant                   No. 961 WDA 2014


           Appeal from the Judgment of Sentence May 15, 2014
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0002979-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                       FILED FEBRUARY 06, 2015

      Appellant, Damien Duvell Speed, appeals from the judgment of

sentence entered May 15, 2014, in the Court of Common Pleas of Erie

County. On appeal, Speed argues that the trial court erred when it denied

his post-sentence motion for credit for time served, choosing instead to

defer awarding any credit until after the Pennsylvania Board of Probation and

Parole (“the Board”) made a determination regarding the revocation of

Speed’s probation. After careful review, we find the trial court erred when it

deferred the application of credit for time served until after disposition of

revocation by the Board. Accordingly, we vacate Speed’s judgment of

sentence and remand for resentencing.

      We briefly summarize the history of this case as follows. On March 20,

2014, a jury convicted Speed of possession of heroin and possession of drug
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paraphernalia.1 On May 15, 2014, the trial court sentenced Speed to 12 to

24 months’ incarceration.        At the time of the commission of these crimes,

Speed was on state probation for previous drug and firearms offenses.

Speed filed a post-sentence motion nunc pro tunc requesting that the trial

court award credit for time served, which the trial court denied.

        On appeal, Speed challenges the trial court’s denial of credit for time

served. This issue raises a challenge to the legality of a sentence.         See

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

application of credit for time served is governed by 42 Pa.C.SA. § 9760,

which states in part 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.A. § 9760(1).            “[I]t is noteworthy that the Department of

Corrections, an executive agency, has no power to change sentences, or to

add or remove sentencing conditions, including credit for time served; this

power is vested with the sentencing court.” Commonwealth v. Ellsworth,

97 A.3d 1255, 1257 (Pa. Super. 2014) (citation omitted).




____________________________________________


1
    35 Pa.C.S.A. §§ 780-113(a)(16) and (32).



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        It is undisputed that Speed is entitled to credit for time served. The

trial court explained its reasons for denying Speed’s motion as follows:

               Over the last year, this [c]ourt has experienced a number
        of situations where it has afforded defendants credit for time
        served at sentencing, only to be later notified by the Board that
        after revocation it afforded the defendant the same credit.
        (Because most revocations occur subsequent to sentencing, this
        [c]ourt is not in a position to determine at sentencing what the
        Board will do with respect to credit.) The Board then advised
        this [c]ourt that unless it wanted to afford duplicate credit, it had
        to issue an order amending the original sentence subtracting
        from its order any time awarded by the Board. This created
        additional work for the trial court. In an attempt to eliminate the
        extra step of modifying sentencing orders, this [c]ourt advised
        the Erie County Adult Probation Department to contact state
        parole agents prior to sentencing to determine on a case-by-case
        basis whether the defendant would be obtaining credit in the
        event of a revocation. This did not totally resolve the issue.
        Therefore, this [c]ourt adopted the policy of deferring the issue
        of credit in some cases until the Board has acted on the
        revocation. It is this policy that is at issue in this appeal.

Trial Court Opinion, 6/26/14 at 3.

        For guidance on the appropriate procedure for the application of credit

for time served, we turn to this Court’s decision in Commonwealth v.

Mann, 957 A.2d 746 (Pa. Super. 2008). In Mann, a panel of this Court held

that “because the Board is without jurisdiction to apply credit when it is

omitted from a sentencing order, the sentencing court must include credit

for time served in the order imposing sentence for an appellant's new

offenses.” Mann, 957 A.2d at 748 (emphasis added). The panel explained

that:

              While no single case offers a specific, unified, time-served
        credit application schema, we read [Gaito v. Pa. Bd. of

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     Probation & Parole, 412 A.2d 568 (Pa. 1980)], [Martin v. Pa.
     Bd. Of Probation & Parole, 840 A.2d 299 (Pa. 2003)], and
     [McCray v. Pa. Dept. of Corrections, 872 A.2d 1127 (Pa.
     2005)] together as providing a resolution to the questions of
     where time-served credits are to be applied and by which
     adjudicatory body: all time served by a parole violator while
     awaiting disposition on new charges must be credited to the
     original sentence if he or she remains in custody solely on a
     Board detainer. Gaito, supra. If the defendant is incarcerated
     prior to disposition, and has both a detainer and has failed for
     any reason to satisfy bail, the credit must be applied to the new
     sentence by the sentencing court. See Id.; see Martin, supra.
     In this circumstance, the credit must be applied by the trial court
     as a sentencing condition, as the Board and the Commonwealth
     Court have no jurisdiction to alter sentencing conditions on later
     review. See McCray. If the new sentence is shorter than the
     time served, the balance can be applied to the original sentence,
     see Martin, supra, 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. See McCray.

Id. at 751.

     Here, Speed was incarcerated on new charges prior to the Board’s

disposition of any possible probation revocation.   In such a circumstance,

the decision in Mann clearly dictates that any credit “must be applied to the

new sentence by the sentencing court[,]” as the Board is without the

authority to impose credit for time served when it is omitted from the

sentencing order. Id. Accordingly, we find the trial court’s decision to defer

application of credit until after disposition by the Board was in error. See

id.; see Ellsworth, supra.      Therefore, we vacate Speed’s judgment of

sentence and remand for resentencing with consideration of credit for time

served.




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     Judgment of sentence vacated.       Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: February 6, 2015




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