J-S05015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRIAN LEE LAUVER,

                            Appellant                No. 1228 MDA 2016


         Appeal from the Judgment of Sentence Entered June 23, 2016
                 In the Court of Common Pleas of Perry County
                           Criminal Division at No(s):
                           CP-50-CR-0000006-2013
                           CP-50-CR-0000042-2013
                           CP-50-CR-0000186-2011
                           CP-50-CR-0000187-2011
                           CP-50-CR-0000407-2009
                           CP-50-CR-0000409-2009


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 18, 2017

        Appellant, Brian Lee Lauver, appeals from the judgment of sentence of

11 to 23 months’ incarceration, followed by 2 years’ probation, imposed

after he violated a prior term of probation.       Appellant solely argues on

appeal that the trial court erred by not giving him credit for 133 days of

pretrial incarceration. After careful review, we vacate Appellant’s judgment

of sentence and remand for resentencing.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      On October 17, 2011, Appellant pled guilty to one count of receiving

stolen property, 18 Pa.C.S. § 3925(a). He was sentenced on November 3,

2011, to a term of 3 years’ probation for that offense.                Appellant

subsequently violated the terms of his probation by failing to pay restitution

to the victim.    On June 23, 2016, the trial court revoked Appellant’s

probation and resentenced him to 11 to 23 months’ incarceration, followed

by 2 years’ probation. The court directed that Appellant receive credit for

time served from June 8 to June 23 of 2016.          N.T. Sentencing Hearing,

6/23/16, at 7.

      Appellant filed a timely post-sentence motion, asserting that “his

sentence was harsh[,]” and requesting to be resentenced “to time served

and probation.” Post-Sentence Motion, 7/5/16, at 1. On July 7, 2016, the

trial court denied Appellant’s post-sentence motion. He then filed a timely

notice of appeal, as well as a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court filed a Rule 1925(a) opinion, dated

September 29, 2016.      Herein, Appellant raises one issue for our review,

arguing that the trial court erred by not giving him “credit for previous times

that he was incarcerated for [probation] violations[.]” Appellant’s Brief at 6.

      Preliminarily, the trial court concludes that Appellant has waived his

sentencing claim by not raising it orally at the sentencing hearing, or in his

post-sentence motion.      See Trial Court Opinion (TCO), 9/29/16, at 2

(unnumbered).     However, this Court has declared that, “[a]n attack upon

the court’s failure to give credit for time served is an attack upon the legality

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of the sentence and cannot be waived.”                   Commonwealth v. Davis, 852

A.2d 392, 399 (Pa. Super. 2004).                     Accordingly, the trial court’s waiver

analysis is erroneous, and we will review the merits of Appellant’s sentencing

claim.

         Briefly, Appellant avers that he is entitled to credit for a total of 133

days of time he spent incarcerated prior to the revocation/resentencing

hearing in this case.             Appellant lists specific dates during which he was

allegedly imprisoned in this case, including from January 17 to January 27 of

2014. The trial court and the Commonwealth agree that Appellant must be

credited     for    the      10   days      spanning   those     dates.     See   TCO    at    3

(unnumbered); Commonwealth’s Brief at 4.                           Accordingly, we vacate

Appellant’s judgment of sentence and remand for a resentencing hearing, at

which the court shall give Appellant credit for the time he served from

January 17 to January 27 of 2014.

         Regarding the various other date-ranges to which Appellant claims he

is   entitled      credit,    the   trial    court   concludes    that    those   “periods    of

incarceration are attributable to Appellant’s other cases.”                  TCO at 3.       The

record currently before us does not permit us to determine whether this

conclusion by the trial court is correct, as no evidence was presented at

Appellant’s initial sentencing hearing regarding his credit-for-time-served

issue.    Thus, we direct that at the resentencing hearing, the court permit

Appellant to present evidence to support his claim that he is entitled to

credit for the other periods of incarceration that he asserts herein.

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J-S05015-17



      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.

      Judge Panella joins this memorandum.

      Judge Platt files a concurring and dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




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