J-S14035-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
               Appellee                   :
                                          :
                  v.                      :
                                          :
STEVEN LEE DOSCH,                         :
                                          :
               Appellant                  :   No. 1426 MDA 2016

           Appeal from the Judgment of Sentence July 29, 2016
            in the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0000115-2010,
           CP-36-CR-0000485-2011, CP-36-CR-0000618-2011,
           CP-36-CR-0002737-2011, CP-36-CR-0005606-2011

BEFORE:    GANTMAN, P.J., SHOGAN and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED AUGUST 21, 2017

     Steven Lee Dosch (Appellant) appeals from his July 29, 2016 judgment

of sentence, which the revocation court imposed after revoking Appellant’s

parole and probation.     Appellant’s counsel originally filed in this Court a

petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

In a prior memorandum, we denied counsel’s petition and remanded for the

filing of new briefs on the issue of whether the revocation court awarded

proper time credit to Appellant when resentencing Appellant after the

revocation of his probation at two different docket numbers.              See

Commonwealth v. Dosch, 2017 WL 2130293 (Pa. Super. May 16, 2017)

(unpublished memorandum). After review of Appellant’s brief, we conclude



*Retired Senior Judge assigned to the Superior Court.
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that the revocation court did not award proper time credit. Accordingly, we

vacate his sentences at counts one and two of docket number 2737-2011

and remand, first, for the revocation court to determine the proper time

credit pursuant to 42 Pa.C.S. § 9760(1), and, second, for resentencing. We

also vacate his sentence at count one of docket number 5606-2011, and

remand for resentencing to incorporate credit for time Appellant spent

incarcerated   on    a   probation    detainer   prior    to   resentencing   on   the

probationary tail of his split sentence at that docket number. We affirm his

judgment of sentence in all other respects.

      We refer the parties to our May 16, 2017 memorandum for a full

recounting of the facts and prior procedural history. As we described in that

memorandum in more detail, the revocation court resentenced Appellant at

the five above-captioned docket numbers after revoking his parole and/or

probation. Relevant to this appeal, at counts one and two of docket number

2737-2011,     the   revocation      court   revoked     Appellant’s   probation   and

resentenced Appellant to one-and-a-half to three years of incarceration.

Violation   Sentencing     Sheets/Violation      Conditions      Sentencing    Orders

(VSS/VCSO), 7/29/2016.        At count one of docket number 5605-2011, the

revocation court revoked Appellant’s probation, previously imposed as a split

sentence of incarceration and probation, and resentenced Appellant to two-

and-one-half to five years of incarceration.




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      Appellant appealed from his judgment of sentence, and upon review of

counsel’s Anders brief, we agreed that there was no merit to challenging

the discretionary aspects of his sentence.       However, we remanded for

counsel to brief the issue of whether Appellant is serving illegal sentences at

counts one and two of docket number 2737-2011 and count one of docket

number 5605-2011 because he did not receive proper time credit in

accordance with 42 Pa.C.S. § 9760 for time spent incarcerated prior to his

resentencing. Dosch (unpublished memorandum at *5). Counsel filed an

advocate’s brief on July 14, 2017, the Commonwealth declined to file a brief,

and the issue is now ripe for determination.

      We begin by reiterating the applicable law.     “A challenge to the trial

court’s failure to award credit for time served prior to 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


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      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.

      The purpose of section 9760 is to ensure that indigent offenders who

are unable to afford bail do not serve more time in confinement than

identically situated offenders who furnish bail. Johnson, 967 A.2d at 1003.

This Court has interpreted section 9760 to apply to probationers upon

revocation of probation.     Specifically, upon a revocation of probation,

revocation courts must award credit for time served prior to the original

sentencing and resentencing so long as the probationer has never received

credit for this time before. Id. at 1005-06.

      A split sentence is one that includes a period of incarceration followed

by a period of probation. Upon revocation of probation on a split sentence,

the probationer is not entitled to receive double credit for time spent

incarcerated on the initial part of the sentence. Id. at 1005 n.3. Thus, “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.” Commonwealth v. Crump, 995 A.2d 1280,

1284 (Pa. Super. 2010).

      With these standards in mind, we examine each docket separately.


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Docket Number 2737-2011:

     As we discussed in our prior memorandum, according to the

sentencing order, Appellant was awarded time credit for 471 days at docket

number 2737-2011, which purported to reflect all of the time he spent

incarcerated prior to the resentencing hearing.   VSS/VCSO at 1. However,

a review of the record reveals that Appellant was incarcerated for

significantly more time than 471 days.

     During the resentencing hearing, the revocation court stated its intent

to give Appellant the time credit he requested in a memorandum authored

by his counsel.   See N.T., 7/29/2016, at 25 (“[The revocation court will]

award the time credit that [revocation counsel] outline[d] in his memo.”).

Nevertheless, this was not the result achieved.

     To begin, the time-credit memorandum authored by Appellant’s

counsel reflects that counsel made a significant mathematical error when

calculating the number of days Appellant spent incarcerated between 2012

and 2015.   This calculation later was relied upon by the revocation court.

Specifically, in the memorandum, Appellant’s counsel claimed Appellant

spent 471 days incarcerated from 2012 to 2015.            See Time-Credit

Memorandum, at 2.     However, according to the time-credit memorandum,

the total number of days Appellant spent incarcerated prior to his 2016

resentencing hearing was 814 (638 between 2012 and 2015 and 176

between February 4, 2016 and the resentencing hearing).


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      The next error occurred when the revocation court added the number

of days incarcerated between 2012 and 2015 to the number of days

Appellant   spent   incarcerated   between    February    4,   2016   and   the

resentencing hearing. In the time-credit memorandum, Appellant requested

time credit for “471 days plus time since 2/4/2016.”               Time-Credit

Memorandum at 2 (emphasis added). The revocation court explicitly stated

it was giving Appellant his requested credit for the time served between

February 4, 2016 and the resentencing hearing, but when referencing the

total time credit it was awarding Appellant, the revocation court stated it

was giving Appellant credit for 471 days, omitting the 176 days he was

incarcerated from February 4, 2016 onwards. N.T., 7/29/2016, at 25. See

also VSS/VCSO at 1.

      Additionally, Appellant requested time credit for the period between

April 1, 2014, and August 13, 2014, but, without acknowledging the

discrepancy, the court listed April 1, 2014, to April 13, 2014, on the record,

a difference of 122 days. See N.T., 7/29/2016, at 25.

      Finally, further complicating matters, the revocation court listed

specific dates on the record for which it intended to give Appellant credit, but

those dates totaled 692 days, which obviously conflicts with the 471 days

the court actually awarded him and the 814 days to which it appears

Appellant is entitled. Compare N.T., 7/29/2016, at 25 with VSS/VCSO at 1

and Time-Credit Memorandum at 2.


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        If the dates set forth in counsel’s time-credit memorandum are

correct, pursuant to Johnson, Appellant should have received time credit for

the 814 days he spent incarcerated prior to the resentencing hearing,

because the record does not reflect that he had ever received credit for that

time in the past.    See Johnson, 967 A.2d at 1005-06.           If Appellant’s

sentence failed to incorporate all of the time to which he is entitled pursuant

to section 9760(1), his sentence would be illegal.1 Accordingly, we vacate

the judgment of sentence at counts one and two of docket number 2737-

2011.    Upon remand, the revocation court should determine exactly how

many days Appellant spent incarcerated for counts one and two of docket

number 2737-2011 prior to the July 29, 2016 resentencing hearing, and

award appropriate time credit upon resentencing.

Docket Number 5606-2011

        At docket number 5606-2011 (count one), the revocation court

revoked Appellant’s probation previously imposed as a split sentence of

incarceration and probation and resentenced Appellant to two-and-one-half



1
  We reject Appellant’s alternative argument that his sentence at docket
number 2737-2011 is illegal because it purportedly exceeds the five-year
maximum sentence for terroristic threats at each count. Appellant argues
that 814 days of time credit should be added to the three-year maximum
term he received, which would then exceed the five-year statutory
maximum sentence. The cases to which Appellant cites as support for this
approach, Commonwealth v. Williams, 662 A.2d 658 (Pa. Super. 1995)
and Commonwealth v. Bowser, 783 A.2d 348 (Pa. Super. 2001), are
inapplicable as both involve split sentences, which are treated differently
than the straight sentence of probation at issue here.

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to five years of incarceration.           VSS/VCSO, 7/29/2016.           During the

sentencing hearing, the revocation court stated that it was terminating the

parole     portion   of   Appellant’s   sentence   as    of   February    4,   2016,

notwithstanding 62 days remaining on his parole. N.T., 7/29/2016, at 26-

27.      Accordingly, because his parole ended on February 4, 2016, the

revocation court also indicated that it was awarding Appellant credit on the

probationary tail of the split sentence for the time spent incarcerated on the

probation detainer since February 4, 2016.         Id.    It declined, however, to

award Appellant credit for any other period of incarceration, stating that all

previously-served time was credited already towards the parole portion of

the sentence. Id. at 23-27.

      Had the revocation court handled this as it indicated on the record it

was going to do, this approach would have been correct under section 9760.

However, the revocation court did not credit Appellant for any time in its

sentencing order. See VSS/VCSO, 7/29/2016. Since the revocation court

terminated the parole portion of the split sentence as of the date of

Appellant’s    incarceration   on   the    detainer,    leaving   Appellant    to   be

incarcerated prior to resentencing on a probation detainer only, we conclude

that the revocation court erred by failing to credit Appellant with the 176

days he spent incarcerated on the probation detainer. See Johnson, 967

A.2d at 1005-06.          Therefore, we also vacate Appellant’s judgment of




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sentence on docket number 5606-2011, and remand for resentencing that

accounts for this time credit.

Conclusion

      In light of the foregoing, we vacate Appellant’s sentences at counts

one and two of docket number 2737-2011 and remand, first, for the

revocation court to determine the proper time credit pursuant to 42 Pa.C.S.

§ 9760(1), and, second, for resentencing. We also vacate his sentence at

count one of docket number 5606-2011, and remand for resentencing to

incorporate credit for time Appellant spent incarcerated on a probation

detainer prior to resentencing on the probationary tail of his split sentence.

We affirm his judgment of sentence in all other respects.

      Judgment of sentence affirmed in part and vacated in part. Remand

for proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




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