J-S49021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    COREY ALLEN DUFFIELD

                             Appellant                 No. 479 MDA 2018


        Appeal from the Judgment of Sentence imposed February 2, 2018
                 In the Court of Common Pleas of Centre County
                Criminal Division at No: CP-14-CR-0001458-2017


BEFORE: SHOGAN, STABILE, JJ., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STABILE, J.:                   FILED NOVEMBER 30, 2018

        Appellant, Corey Allen Duffield, appeals from the February 2, 2018

judgment of sentence imposing 90 days of incarceration for driving on a

suspended license1 followed by five years of intermediate punishment for

driving under the influence of a controlled substance2 (“DUI”). We vacate and

remand.

        On August 29, 2017, Appellant was arrested in Centre County for the

instant offenses and detained for a violation of his parole on two Clinton

County DUI sentences. Appellant was incarcerated because he was unable to

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. § 1543 (this statute has been amended effective October 20,
2018).

2    75 Pa.C.S.A. § 3802(d).
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post bail.   On January 29, 2108, his Clinton County parole was revoked.

Instantly, the trial court did not give Appellant credit for his pre-sentence

confinement. At the hearing on Appellant’s post-sentence motion, the Centre

County Specialty Court Coordinator testified that she believed the Clinton

County authorities adjusted the expiration date of Appellant’s maximum term

to account for the time he served on the detainer. N.T. Post-Sentence Motion,

2/20/18, at 7-8. As it is unclear from the record whether that occurred, the

trial court has requested a remand. Trial Court Opinion, 4/18/18, at 1-2.

      A court’s failure to award credit for time served, in accord with 42

Pa.C.S.A. § 9760, implicates the legality of the sentence. Commonwealth

v. Clark, 885 A.2d 1030, 1032 (Pa Super. 2005). Our Supreme Court has

acknowledged that § 9760 does not address proper application of credit for

time served where the defendant is incarcerated for a new offense and

detained for a parole violation. Martin v. Pa. Bd. Of Prob. & Parole, 840

A.2d 229, 303-04 (Pa. 2003). In Gaito v. Pa. Bd. Of Prob. & Parole, 412

A.2d 568 (Pa. 1980), our Supreme Court held that, in such a case, the time

served should normally be applied to the sentence for the new offense. Id.

at 571. The Court also acknowledged in a footnote that time served can be

credited toward the prior offense if the defendant is acquitted or receives no

sentence for the new offense. Id. at 571 n.6. The Martin Court relied on

Gaito to hold that a defendant could receive credit for time served against his




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original sentence where he only received a 48-hour sentence for the new

offense. Martin, 840 A.2d 229. Gaito and Martin remain good law:

            Gaito remains the general law in this Commonwealth
      respecting how credit should be allocated for a convicted parole
      violator wo receives a new sentence of incarceration, and the
      exception to Gaito, set forth at footnote 6 and further developed
      in Martin, is limited to cases in which a convicted parole violator
      receives a term of incarceration for new charges that is shorter
      than his pre-sentence confinement, such that the application of
      the Gaito rule would result in excess incarceration.

Smith v. Pennsylvania Bd. Of Prob. & Parole, 171 A.3d 759, 768-69 (Pa.

2017).

      The Commonwealth argues against remand, claiming Appellant is

attempting to receive time-served credit toward the instant sentence and the

Clinton County sentences. The Commonwealth correctly notes that this Court,

in Commonwealth v. Ellsworth, 97 A.3d 1255 (Pa. Super. 2014), held that

“duplicative imposition of credit for time served constitute[s] a patent and

obvious mistake” that is amenable to correction beyond the thirty-day period

specified in 42 Pa.C.S.A. § 5505. Id. at 1257.

      In light of all of the foregoing, we vacate the judgment of sentence and

remand for a determination of whether Appellant has received proper credit

for time served in accord with all applicable law.




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J-S49021-18




      Judgment of sentence vacated.   Case remanded.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




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