J-S81020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT
                                                                    OF
                                                               PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL R. RILEY

                             Appellant                      No. 1008 MDA 2017


         Appeal from the Judgment of Sentence imposed March 7, 2017
           In the Court of Common Pleas of the 17th Judicial District
                              Union County Branch
               Criminal Division at No: CP-60-CR-0000194-2016


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                   FILED APRIL 23, 2018

        Appellant, Michael R. Riley, appeals from the judgment of sentence

imposed on March 7, 2017 by the Court of Common Pleas of the 17th Judicial

District, Union County Branch.1                Appellant challenges the trial court’s

determination that credit for time served while on a parole detainer was not

to be applied to time spent in custody on the charges underlying the March 7,

2017 judgment of sentence. Upon review, we affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1  Appellant purports to appeal from the order denying his post-sentence
motion. Appellant’s Brief at 3. It is well established, however, that in a
criminal action, an appeal properly lies from the judgment of sentence made
final by the denial of post-sentence motions. See, e.g., Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001).
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      The relevant procedural history can be summarized as follows. On May

7, 2016, Appellant committed the crimes of simple assault, false identification

to law enforcement, two counts of disorderly conduct, and harassment. At

the time Appellant was on state parole. On that same day and unrelated to

these new crimes, the Pennsylvania Board of Probation and Parole (the

“Board”), issued a detainer for Appellant for technical parole violations and he

was placed in a county prison pursuant to the state parole detainer.

      On May 16, 2016, Appellant was charged with simple assault, false

identification to law enforcement, two counts of disorderly conduct, and

harassment.

      On June 3, 2016, the Board entered an order recommitting Appellant as

a technical parole violator to serve nine months for multiple technical parole

violations (change of residence without permission, and failure to successfully

complete the “Kintock Erie” program), with automatic release on parole on

February 7, 2017. See Notice of Board Decision, June 3, 2016, at 1-2; see

also N.T. Plea Hearing, 10/13/16, at 9-11.       The Board ordered that the

recommitment be effective as of May 7, 2016, the date on which Appellant

was incarcerated under the state parole detainer.

      On June 9, 2016, a magisterial district judge set bail for the May 16,

2016 charges at $5,000.00 cash, which Appellant did not post.

      On October 13, 2016, Appellant pled guilty to one count of simple

assault, a misdemeanor of the second degree at which time the trial court

modified Appellant’s bail to $5,000.00 unsecured bail.     Appellant however,

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remained incarcerated as a result of being recommitted by the Board as a

result of his technical parole violations.

      On November 18, 2016, the Board “note[d] conviction at Union County,

indictment #194-2016” but took “no action as to that conviction” and

“refer[ed] to Board action of 06/03/2016, to recommit as a technical parole

violator to a state correctional institution/contracted county jail to serve 9

months & reparole 02/07/2017.” Notice of Board Decision, 11/18/16.

      On March 7, 2017, the trial court sentenced Appellant to incarceration

of six to twenty-four months in a state correctional institution as agreed for

pleading guilty to a single count of simple assault arising out of the May 16,

2016 charges. Appellant received credit against this new sentence for twenty-

seven days for the time served from February 8, 2017 to March 6, 2017; that

being the time after which he was released back on state parole after his

recommitment expired to the day before his March 7, 2017 sentencing. At

sentencing, Appellant argued that he was entitled to credit against his new

sentence for all time served from May 7, 2016 through October 13, 2016, that

being the time he was incarcerated due to the Board’s detainer for technical

parole violations through the time he pled to simple assault and was released

on unsecured bail for that crime.       Appellant renewed this claim in post-

sentence motions, which were denied by the trial court on April 6, 2017. Both

the Appellant and the trial court complied with Pa.R.A.P. 1925. In this appeal,

Appellant renews his claim for time credit as presented before the trial court.


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     Appellant argues:

     [T]here can be little doubt that this Court’s holding in
     [Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008)] and
     its progeny make abundantly plain that when a parole detainer
     and detention based upon new criminal charges compete for
     credit, that credit must be applied to the new sentence. A clearer,
     unassailable directive is hard to fathom.

Appellant’s Brief at 10. Appellant’s argument is misplaced.

     A claim based upon the failure to give credit for time served is a

challenge implicating the legality of one’s sentence.    Commonwealth v.

Tobin, 89 A.3d 663, 669 (Pa. Super. 2014).

     Section 9760 governs credit for time served, which, in relevant part,

provides:


     (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.

                                        ***

     (4) If the defendant is arrested on one charge and later
     prosecuted on another charge growing out of an act or acts that
     occurred prior to his arrest, credit against the maximum term and
     any minimum term of any sentence resulting from such
     prosecution shall be given for all time spent in custody under the
     former charge that is not been credited against another sentence.

42 Pa.C.S.A. § 9760(1), (4).

     In construing Section 9760, this Court in Mann held that all time served

by a parole violator while awaiting disposition on new charges must be



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credited to the original sentence if he or she remains in custody solely on a

Board detainer.    Mann, 957 A.2d at 751.        However, if a defendant is

incarcerated prior to disposition on new charges, and has both a detainer and

has failed for any reason to satisfy bail on the new charges, time credit must

be applied to the new sentence. Id. Therefore, if the facts were such that

the reason for Appellant’s incarceration prior to disposition of the May 16,

2016 charges were due solely to the new charges and not the Board detainer,

Appellant would be correct that the time claimed should have been credited

against his sentence on these new charges. However, those are not the facts

in this case.

      The Board lodged its detainer against Appellant as of May 7, 2016, the

day Appellant was picked up as result of his technical violation of his state

parole and ordered that his recommitment commence as of May 7, 2016, and

to continue for a period of 9 months, until February 7, 2017. See N.T. Plea

Hearing,   10/13/16,   at   9-11;   Board’s   Recommitment    Order,   6/3/16.

Therefore, the time Appellant spent incarcerated (which includes the time

credit he now claims) was a result of his recommitment or incarceration for

his parole violation, and not due to the new charges committed as of May 7,

2016. Under Section 9760(4), once credit was given against his old sentence

for which he was recommitted, the time Appellant served in custody on his

new charges was no longer because of those charges within the meaning of

subsection (1) of Section 9760 and therefore, Appellant is not entitled to time


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credit against his sentence on the new charges.      See Commonwealth v.

Merigris, 681 A.2d 194 (Pa. Super. 1996) (construing 18 Pa. C.S.A. §

1360(4), the predecessor statute to Section 9760(4)).

     In light of the foregoing, we agree with the trial court that crediting the

time claimed by Appellant toward the instant sentence would amount to

double credit. See Trial Court Opinion, 6/21/17, at 2. Appellant’s claim is

therefore without merit.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/18




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