J-S25043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHANE LEE SHEPLER,

                            Appellant                  No. 5 WDA 2015


           Appeal from the Judgment of Sentence December 8, 2014
              in the Court of Common Pleas of Jefferson County
              Criminal Division at No.: CP-33-CR-0000406-2009



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHANE LEE SHEPLER,

                            Appellant                  No. 6 WDA 2015


           Appeal from the Judgment of Sentence December 8, 2014
              in the Court of Common Pleas of Jefferson County
              Criminal Division at No.: CP-33-CR-0000301-2010


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

MEMORANDUM BY PLATT, J.:                                   FILED MAY 20, 2015




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        In this consolidated appeal, Appellant, Shane Lee Shepler, appeals

from the judgment of sentence entered on December 8, 2014, following the

revocation of his probation.        On appeal, Appellant contends that the court

erred by not crediting his sentence with the time he was incarcerated under

a probation detainer lodged because of criminal activity in another county.

For the reasons discussed below, we vacate and remand for resentencing.

        We take the underlying facts and procedural history in this matter

from the trial court’s opinion, and our review of the record. 1 On November

4, 2009, Appellant pleaded guilty to a charge of simple assault in case

number CP-33-CR-406-2009; the trial court immediately sentenced him to a

term of two years of probation. On November 16, 2010, Appellant pleaded

guilty to charges of terroristic threats and simple assault in case number CP-

33-CR-301-2010; the trial court immediately sentenced him to an aggregate

term of incarceration of not less than six months nor more than two years

less one day.

        On April 28, 2012, the Pennsylvania State Police arrested Appellant for

shoplifting tools and fishing gear from a Walmart in Indiana County. (See

N.T. Gagnon II Hearing,2 12/08/14, at 22-25). On May 3, 2012, the trial

court issued a bench warrant for Appellant’s arrest based upon information

____________________________________________


1
    We note that the Commonwealth did not file a brief in this matter.
2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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received from the Jefferson County Adult Probation Department that

Appellant was in violation of his probation in both cases.        (See Bench

Warrant, 5/03/12, at 1). On May 7, 2012, the trial court issued a detainer.

(See Detainer, 5/07/12, at 1).

     On October 22, 2012, following a trial, a jury in Indiana County

convicted Appellant of retail theft and receiving stolen property. (See PCRA

Court Opinion, 6/27/14, at 1).     On November 21, 2012, the Court of

Common Pleas of Indiana County sentenced Appellant to a term of

incarceration of not less than three months nor more than twelve months.

(See Notice of Charges and Hearings Rights & Written Request for

Revocation, 1/29/13, at 1; see also PCRA Ct. Op., supra at 1).

     On   January   29,   2013,   the   Jefferson    County   Adult   Probation

Department issued a Notice of Charges and Hearings Rights & Written

Request for Revocation, stating that Appellant had violated his probation in

both cases because he failed to report on May 1, 2012, and because of the

conviction in Indiana County. (See Notice of Charges and Hearings Rights &

Written Request for Revocation, supra at 1).        At a Gagnon I hearing on

January 30, 2013, the trial court took judicial notice of the Indiana County

conviction and sentence and heard testimony from Appellant on the failure

to report charge. (See Gagnon I Hearing, 1/30/13, at 2-3). Following a

Gagnon II hearing on February 19, 2013, the trial court revoked Appellant’s

probation in both cases based upon the Indiana County conviction but did


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not issue a ruling with respect to the failure to report charge. (See Gagnon

II hearing, 2/19/13, at 3-5).     The trial court immediately resentenced

Appellant to an aggregate term of incarceration of not less than three and

one-half nor more than seven years. (See id. at 4).

     On October 23, 2013, Appellant, acting pro se, filed a petition

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, challenging one of the underlying simple assault convictions.     (See

PCRA Petition, 10/23/13, at 3).   On November 20, 2013, Appellant filed a

motion for reconsideration of sentence, which the trial court denied on

November 22, 2013.

     Subsequently, the court appointed counsel to represent Appellant on

the PCRA petition. On February 11, 2014, PCRA counsel filed an amended

PCRA petition alleging that the revocation of probation could not stand

because the Court of Common Pleas of Indiana County had, on November 4,

2013, nol prossed the conviction that served as the basis for the revocation

of probation. (See Amended PCRA Petition, 2/11/14, at 2).

     On June 27, 2014, the PCRA court granted, in part, Appellant’s PCRA

petition; it vacated the judgment of February 19, 2013, but directed the

Commonwealth to notify the court within thirty days if it intended to present

evidence at a new Gagnon II hearing. (See PCRA Ct. Op., 6/27/14, at 2-

3). On July 23, 2014, the Commonwealth notified the court that it intended

to present evidence at a new Gagnon II hearing.


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     The new Gagnon II hearing took place on December 8, 2014; at the

hearing, the Commonwealth presented the testimony of three witnesses to

the events that took place at the Walmart in Indiana County on April 28,

2012. (See Gagnon II Hearing, 12/08/14, at 4-27). The Commonwealth

did not present any evidence with respect to the failure to report charge.

(See id.). Following the hearing, the trial court again revoked Appellant’s

probation and sentenced him to an aggregate term of incarceration of not

less than three and one-half nor more than five years.      (See Sentence,

12/08/14, at 1). The trial court denied Appellant’s request to receive credit

for time served in the Indiana County Jail from May 4, 2012 to November

26, 2012. (See id.).

     On December 10, 2014, Appellant filed a motion for modification of

sentence, which the court denied on December 12, 2014.          The instant,

timely appeal followed.    On December 31, 2014, the trial court ordered

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b).     Appellant filed a timely Rule 1925(b) statement on

January 7, 2015. On January 14, 2015, the trial court filed an opinion. See

Pa.R.A.P. 1925(a).

     On appeal, Appellant raises the following question for our review:

     1. Did the [trial] court, at [the] time of entering its probation
        revocation sentences in these two cases on December 8,
        2014, err or abuse its discretion in denying [Appellant’s]
        request, made both by oral motion and by written motion to
        modify sentence, for credit for time served for that period of
        time spent incarcerated at the Indiana County Jail from May

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           4, 2012 to November 26, 2012, pursuant to both a Jefferson
           County probation detainer and a then pending Indiana County
           criminal charge, when said Indiana County criminal
           charge/conviction was later subject to a nol pros after an
           award of a new trial on collateral review by the Indiana Court
           of Common Pleas?

(Appellant’s Brief, at 5).

      Appellant argues that the revocation sentence is illegal under 42 Pa.

C.S.A. § 9760, because the trial court did not award him credit for time

served.    (See Appellant’s Brief, at 14).   A claim that the court failed to

award credit for time served implicates the legality of sentence.           See

Commonwealth v. Clark, 885 A.2d 1030, 1032 (Pa. Super. 2005).

Therefore, our standard of review is de novo and our scope of review is

plenary.    See Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super.

2014).

      Sentencing credit for time served is provided for pursuant to 42 Pa.

C.S.A. § 9760, which states in pertinent part:

      (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.

                                   *    *    *

      (3) If the defendant is serving multiple sentences, and if one of
      the sentences is set aside as the result of direct or collateral
      attack, credit against the maximum and any minimum term of
      the remaining sentences shall be given for all time served in


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        relation to the sentence set aside since the commission of the
        offenses on which the sentences were based.

42 Pa. C.S.A. § 9760(1) and (3).

        In the instant matter, Appellant argues that:

              Because [his] incarceration, from May 4, 2012 through
        November 26, 2012, is attributable to both his probation
        detainer (Jefferson County Bench Warrant) and the new criminal
        charges (Indiana County theft charges), it must be attributed to
        either his sentence under the new criminal charges or to the
        sentence imposed for violation of probation/parole.            As
        [Appellant’s] Indiana County charges were the subject of a nol
        pros he must received credit for this time against his revocation
        sentences out of Jefferson County [pursuant to this Court’s
        decision in Commonwealth v. Smith, 853 A.2d 1020, 1026
        (Pa. Super. 2004)].

(Appellant’s Brief, at 25). We agree.

        In Smith, the appellant was detained, partially because of a probation

detainer, while awaiting trial on new criminal charges. See Smith, supra at

1023.     The trial court ultimately closed the probation violation without

imposing any penalty; however, a jury found Smith guilty on the new

criminal charges.     See id. at 1022-23.      The trial court denied Smith’s

request to give him credit for time served on the probation detainer against

his sentence on the new criminal matter. See id. at 1023.

        On appeal, this Court concluded that the trial court erred, holding that

because Smith’s pre-trial detention was a result of both the probation

detainer and the new criminal charges, he was entitled to have that time

credited against his new sentence on the criminal charges. See id. at 1026.

In so doing, we adopted the principle regarding “equitable crediting of pre-

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trial incarceration,” which the Pennsylvania Supreme Court delineated with

respect to parole in Martin v. Pa. Bd. of Prob. and Parole, 840 A.2d 299,

308-09 (Pa. 2003), and applied it to probation. Id. at 1026. We specifically

stated that where “pretrial incarceration is attributable to both [a] probation

detainer and the new criminal charges, it must be attributed to either [a

defendant’s] sentence under the new criminal charges or to a sentence

imposed for violation of probation.”   Id.; see also Martin, supra at 309

(“where an offender is incarcerated on both a [Parole] Board detainer and

new criminal charges, all time spent in confinement must be credited to

either the new sentence or the original sentence.”) (footnote omitted).

      In its Rule 1925 opinion, the trial court acknowledges Smith but

argues that we should construe it narrowly and that it is inapplicable

because, in Smith, the court did not find that the defendant had violated

probation. (See Trial Court Opinion, 1/14/15, at 2). The trial court further

argues that Smith is inapposite because, in the instant matter, a jury found

Appellant guilty of the new criminal charges and their subsequent dismissal

was the result of a procedural error on the part of the trial court and not

based upon a finding that Appellant was innocent.      (See id. at 2-3).   We

disagree.

      The trial court does not point to, and we see nothing in Smith, that

supports its analysis.   The Smith Court squarely held that where pretrial

incarceration was attributable to both a probation detainer and new criminal


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charges, the defendant was entitled to credit for time served against either

the sentence on the new criminal charges or the sentence imposed for

violation of probation. See Smith, supra at 1026. Here, because the new

criminal charges were nol prossed, Appellant was entitled to credit for time

served in pre-trial detention against the sentence imposed for violation of

probation. See id.; see Martin, supra at 309. The trial court committed

an error of law when it failed to credit Appellant’s sentence. Accordingly, we

are constrained to vacate the December 8, 2014 judgment of sentence and

remand for resentencing in a manner consistent with this decision.

      Judgment of sentence vacated.         Case remanded for resentencing

consistent with this decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2015




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