J-S67045-19

                                   2020 PA Super 5


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAJUAN SAUNDERS                            :
                                               :
                       Appellant               :   No. 1283 MDA 2019

               Appeal from the PCRA Order Entered July 10, 2019
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0000420-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                           FILED JANUARY 10, 2020

        Appellant, Dajuan Saunders, appeals from the order entered in the

Court of Common Pleas of Lackawanna County denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46,

following an evidentiary hearing. After a careful review, we affirm.

        The relevant facts and procedural history are as follows: On November

20, 2010, police stopped Appellant’s vehicle in Lackawanna County, and at

lower court docket number 2011 CR 1456, he was charged with offenses

related to driving while under the influence of alcohol (“DUI”)-highest rate of

alcohol, 75 Pa.C.S.A. § 3802(c). Appellant pled guilty to the offense, and since

it was his second offense, he was sentenced to one year to five years in prison.

Appellant served time in prison on this conviction from July 11, 2011, until

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*   Former Justice specially assigned to the Superior Court.
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November 26, 2012, at which time he was placed on probation. N.T., 6/25/18,

at 2.

        While on probation with regard to 2011 CR 1456, Appellant was

arrested, convicted, and sentenced with regard to an aggravated assault he

committed in Monroe County. This triggered a probation revocation hearing

with regard to 2011 CR 1456, and following the revocation of his probation at

2011 CR 1456, Appellant served time in prison from March 23, 2013, until

March 22, 2016. Id. at 3. Appellant averred 11½ months of this time was

credited towards his Monroe County sentence while the remaining 24½

months was credited towards his probation revocation sentence for 2011 CR

1456. Id. at 3-4.

        Meanwhile, Appellant filed a petition for writ of habeas corpus in the

federal court with regard to his conviction at 2011 CR 1456, and on February

12, 2016, the United States District Court for the Middle District of

Pennsylvania vacated the conviction.1 See Saunders v. Asure, No. 13-CV-

3056, 2016 WL 561947 (M.D. Pa. Feb. 12, 2016). Appellant was subsequently

released from prison.

        On February 9, 2017, in the instant matter, Appellant was arrested in

Lackawanna County while in possession of a plastic bag containing heroin, and


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1 The federal court reasoned that guilty plea counsel was ineffective in failing
to advise Appellant before he pled guilty that in order to be convicted under
Section 3802(c) his blood alcohol content had to have been taken within two
hours of driving. Appellant’s blood was drawn outside this two hour window.

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he was charged with various offenses, which were docketed at lower court

number 2017 CR 420. On September 29, 2017, Appellant, who was

represented by counsel, entered a guilty plea to one count of possession with

the intent to deliver (“PWID”), 35 P.S. § 780-113(a)(30), and one count of

criminal use of a communication facility, 18 Pa.C.S.A. § 7512(a).

      On December 8, 2017, following a hearing, Appellant was sentenced to

two years to four years in prison for PWID, as well as a consecutive one year

of probation for criminal use of a communication facility. The sentences were

to commence on December 8, 2017, and the trial court indicated Appellant

was boot camp eligible as long as he met all of the other requirements. The

trial court gave Appellant 142 days of credit for time he served pretrial from

February 20, 2017, to July 1, 2017, with regard to the instant offenses.

Despite being provided with his post-sentence and appeal rights, Appellant

filed neither a post-sentence motion nor a direct appeal.

      On February 21, 2018, Appellant filed a timely, pro se PCRA petition,

and counsel was appointed to assist him. Appellant filed an amended PCRA

petition alleging that with respect to the instant case (2017 CR 420) he should

be given credit for time served in the unrelated DUI criminal case (2011 CR

1456) since the latter conviction was vacated by the federal court.

Specifically, Appellant requested that, with regard to his conviction at 2017

CR 420, the PCRA court give him credit of 41 months for time he served with

regard to the vacated sentence at 2011 CR 1456. Id. at 4-5.


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      On June 25, 2018, the matter proceeded to a PCRA evidentiary hearing.

At the hearing, Appellant argued that he has 41 months of time that he served

on a now-vacated sentence and, therefore, the state “owes him [this] time.”

Id. at 5. In response, the Commonwealth argued that Appellant might have

a civil remedy for the time he served with regard to 2011 CR 1456; however,

the prison time was not to be “banked” for future use against subsequent

crimes. Id. at 8.

      By order entered on July 10, 2019, the PCRA court denied Appellant’s

PCRA petition, and on July 31, 2019, this timely, counseled appeal followed.

All Pa.R.A.P. 1925 requirements have been met.

      On appeal, Appellant presents the following sole issue in his “Statement

of the Questions Involved” (verbatim):

      I.    Did the trial court commit an error of law and/or abuse its
            discretion in failing to apply the Defendant’s credit for time
            served under 11 CR 1456 to the sentence imposed in 17 CR
            420?

Appellant’s Brief at 4 (suggested answer omitted).

      In the case sub judice, Appellant was given 142 days of credit for the

time he served in pretrial detention (February 20, 2017, to July 1, 2017) with

regard to the instant offenses at 2017 CR 420. However, Appellant contends

that he is entitled to additional credit for time served. Specifically, he avers

he is entitled to credit for time he served in prison with regard to his conviction

in an unrelated case, 2011 CR 1456, which was later vacated by the federal

court. In this vein, Appellant asserts “[t]he only place that the confinement

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[from the now vacated sentence] can be applied is [to] the present sentence

[for 2017 CR 420].” Appellant’s Brief at 11.

      We begin by acknowledging that “[o]ur standard of review regarding a

PCRA court’s order is whether the determination of the PCRA court is

supported   by   the   evidence   of     record   and   is   free   of   legal   error.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011). “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Id.

      A claim asserting that the trial court failed to award credit for time

served implicates the legality of the sentence. Commonwealth v. Johnson,

967 A.2d 1001, 1003 (Pa. Super. 2009). Issues relating to the legality of a

sentence are questions of law. Commonwealth v. Aikens, 139 A.3d 244,

245 (Pa. Super. 2016). Our standard of review over such questions is de novo

and the scope of review is plenary. Id.

      The Pennsylvania Sentencing Code, with regard to awarding credit for

time served, provides as follows:

      § 9760. Credit for time served
      After reviewing the information submitted under section 9737
      (relating to report of outstanding charges and sentences) the
      court shall give credit as follows:
      (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.



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      (2) Credit against the maximum term and any minimum term shall
      be given to the defendant for all time spent in custody under a
      prior sentence if he is later reprosecuted and resentenced for the
      same offense or for another offense based on the same act or
      acts. This shall include credit in accordance with paragraph (1) of
      this section for all time spent in custody as a result of both the
      original charge and any subsequent charge for the same offense
      or for another offense based on the same act or acts.
      (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 relation
      to the sentence set aside since the commission of the offenses on
      which the sentences were based.
      (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 has not been credited against another
      sentence.

42 Pa.C.S.A. § 9760.

      In the case sub judice, Appellant does not recognize the existence of

this statute and has not developed any argument indicating that any provision

of Section 9760 is applicable to his request for credit for time served with

regard to 2011 CR 1456. In any event, we conclude Appellant is not entitled

to the credit he seeks for the unrelated, now vacated sentence.

      No language in 42 Pa.C.S.A. § 9760 provides, or even suggests, that an

individual is entitled to credit for time served for periods of incarceration on

offenses committed years prior to and wholly unrelated to the current charges.

Rather, this Court has noted the general rule is that “[c]redit is not given…for

a   commitment     by   reason    of   a     separate   and   distinct   offense.”

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J-S67045-19


Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa.Super. 1995) (quotation

omitted).

       Further, our Supreme Court has cautioned that the Pennsylvania

Constitution neither permits nor requires the establishment of “penal checking

accounts,” whereby time served on unrelated charges later declared invalid

may be subsequently applied toward a future sentence.                Martin v.

Pennsylvania Bd. of Probation and Parole, 576 Pa. 588, 605, 840 A.2d

299, 308-09 (2003).           See Commonwealth v. Clark, 885 A.2d 1030

(Pa.Super. 2005) (noting that those who have been wrongfully detained for

invalid charges may not generally apply that time to unrelated sentences).

       In the case sub judice, as to Appellant’s case at 2017 CR 420, we

conclude the lower court did not err in refusing to give Appellant credit for the

time he served with regard to his earlier vacated sentence at 2011 CR 1456.

Simply put, our Constitution does not permit defendants to “bank” time served

with regard to one conviction so that it may later be credited against a wholly

unrelated subsequent conviction.2

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2 We note that, in developing his claim, Appellant relies on Gasper v. Com.,
Bd. of Probation and Parole, 388 A.2d 1139 (Pa.Cmwlth 1978) (en banc).
Initially, we note that we are not bound by the decisions of our sister court.
See Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa.Super. 2010).
Further, as discussed infra, Gasper is distinguishable from the case sub
judice.
       In Gasper, the appellant was sentenced in three separate cases and,
after he was paroled on his first and second sentences, he began serving his
third sentence. His second sentence was dismissed at one point and credit



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       For all of the foregoing reasons, we affirm.

       Affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/10/2020




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for time served on the second sentence was applied to the third sentence,
which he was then currently serving. The appellant argued credit should be
applied to both his first and third sentences. The Commonwealth Court
concluded this would constitute an improper double credit, and thus, the court
denied the request.
      Unlike the appellant in Gasper, Appellant in the case sub judice was not
currently serving his sentence on 2017 CR 420 when the federal court vacated
his sentence in 2011 CR 1456. Rather, Appellant committed his crimes in
2017 CR 420 nearly a year after the federal court vacated his sentence at
2011 CR 1456. Moreover, it is noteworthy that in Gasper the Commonwealth
Court did not analyze or specifically apply Section 9760.


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