J-S08032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 LEROY BENJAMIN TOWNSEND                 :
                                         :   No. 1106 WDA 2017
                    Appellant

           Appeal from the Judgment of Sentence June 30, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0001812-2017


BEFORE:    LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED: April 2, 2018

      Appellant Leroy Benjamin Townsend appeals the judgment of sentence

imposed by the Court of Common Pleas of Erie County following his conviction

of Retail Theft. Appellant argues that the trial court failed to properly award

him credit for time served. We vacate and remand.

      The lower court summarized the facts of the case as follows:

            On May 15, 2017, Appellant was arrested for Retail Theft
      and committed to the Erie County Prison because he was unable
      to make bond. Concurrently, the Board of Probation and Parole
      (“the Board”) filed a detainer because Appellant was on state
      supervision at the time of his arrest. Separately, Appellant was
      subject to a probation violation warrant issued May 17, 2017 for
      a sentence he was serving for Retail Theft in Allegheny County.

            Appellant remained incarcerated until June 30, 2017, when
      he pled guilty in this case to a first degree misdemeanor, Retail
      Theft. At his request, his case went to immediate sentencing.
      Appellant was sentenced to 6 to 24 months of incarceration,
      consecutive to the state sentence Appellant was previously

____________________________________
* Former Justice specially assigned to the Superior Court.
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      serving. All credit for time served was accorded to the state
      sentence Appellant was serving at the time he committed the
      Retail Theft in this case.

Trial Court Opinion, 10/6/17, at 1. Appellant filed this timely appeal.

      The sole issue that Appellant raises on appeal is whether the trial court

was required to award credit for time served from May 15, 2017 to June 30,

2017 (47 days) to the new sentence at this docket instead of awarding them

to Appellant’s original sentence.      As an initial matter, we note that,

“[g]enerally, a plea of guilty amounts to a waiver of all defects and defenses

except those concerning the jurisdiction of the court, the legality of the

sentence, and the validity of the guilty plea.” Commonwealth v. Morrison,

173 A.3d 286, 290 (Pa.Super. 2017).         “A claim based upon the failure to

give credit for time served is a challenge implicating the legality of one's

sentence.   A claim challenging the legality of sentence is appealable as of

right.” Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa.Super. 2017).

      The Pennsylvania Sentencing Code provides, with regard to awarding

credit for time served, in relevant part 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 conduct on which such a charge is based. Credit shall
      include credit for the time spent in custody prior to trial, during
      trial, pending sentence, and pending the resolution of an appeal.
                                      ***

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      (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. § 9760(1), (4).

      In   a   recently   published   decision,   Commonwealth      v.   Gibbs,

___A.3d.___, 2018 PA Super 62 (Mar. 19, 2018), this Court addressed a

nearly identical challenge to a trial court’s decision to apply credit for time

served to the parole violator’s original sentence instead of the sentence on the

new charges. The Gibbs court summarized the applicable law as follows:

      [Section 9760] does not specifically contemplate credit for time
      served following a parole violation and revocation. Our Supreme
      Court has held, however, that this credit statute mandates an
      offender receive credit for all incarceration served before
      sentencing for which he is being detained in custody. Gaito v.
      Pa. Bd. of Probation and Parole, 488 Pa. 397, 412 A.2d 568
      (1980). Determining who applies the credit and to which offense
      it applies has been difficult.

                                      ***
      In Martin [v. Pa. Bd. of Probation and Parole, 576 Pa. 588,
      840 A.2d 299 (2003),] the court painstakingly attempted to
      fashion a rule that would work in all situations where confinement
      was the result of both the detainer for a parole violation and the
      failure to meet conditions of bail on the new offense. The court
      reviewed many cases and searched for a comparable resolution of
      this issue in other jurisdictions. Id. at 304–08. The court
      observed that “[u]nique combinations of circumstances will be
      presented in different cases that tip the balance for or against the
      particular allocation of credit.        Id. at 308.      Ultimately,
      the Martin court left the application of time served to the Board's
      discretion and held that where an offender was incarcerated on
      both a Board detainer and new criminal charges, all time spent in



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     confinement must be credited by the Board to either the new
     sentence or the original sentence. Id. (emphasis added).

     Following the Martin decision in 2003, however, other cases have
     addressed the issues of whether the Board or the sentencing court
     should determine credit for time served and to which offense that
     credit should be applied. See e.g. McCray v. Pa. Dept. of
     Corrections, 582 Pa. 440, 872 A.2d 1127 (2005); Melhorn v.
     Pa. Bd. of Probation and Parole, 883 A.2d 1123 (Pa. Cmwlth.
     2005), rev'd, 589 Pa. 250, 908 A.2d 266 (2006); Armbruster v.
     Pa. Bd. of Probation and Parole, 919 A.2d 348 (Pa. Cmwlth.
     2007).     Ultimately, these cases determined that where a
     sentencing court does not give an inmate full credit for time
     served, the inmate's remedy is in the trial court, and through the
     direct appeal process, not through the Board. Armbruster, 919
     A.2d at 356.

     Finally, in Commonwealth v. Mann, 957 A.2d 746 (Pa. Super.
     2008), this Court determined that while no single case offers a
     specific, unified, time-served credit application schema, reading
     several key cases together, the Court found that they collectively
     provided a resolution to the questions of where time-served
     credits are to be applied and by which adjudicatory body:

           [A]ll time served by a parole violator while awaiting
           disposition on new charges must be credited to the
           original sentence if the inmate remains in custody
           solely on a Board detainer. If the inmate is
           incarcerated prior to disposition and has both a
           detainer and has failed for any reason to satisfy bail,
           the credit must be applied to the new sentence by the
           sentencing court. If the new sentence is shorter than
           the time served, the balance can be applied to the
           original sentence, but the sentencing court must
           specify “time served: in the sentencing order for the
           new offense, so that the Board will be able to apply
           the credit.

     Id. at 751. (emphasis added) (citations omitted).


Gibbs, 2018 PA Super 62, at *1-3 (emphasis added). In Gibbs, the appellant

asked that credit for time served from his arrest to his sentencing be applied


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to his new charges when he had been subject to a Board detainer for a parole

violation and did not satisfy bail on the new charges. Based on the rule set

forth in Mann, the Gibbs court held that the trial court erred in crediting the

appellant the time he served prior to the disposition of the new charges to his

original 2007 sentence, and not to his new sentence.

      Likewise, in this case, Appellant was on state supervision at the time of

his arrest for the instant charges. Appellant remained incarcerated from his

arrest to his sentencing on the charges in this case due to his failure to make

bond as well as the Board detainer.    Pursuant to Gibbs and Mann, the trial

court was required to award Appellant the credit for time he served prior to

the disposition of the new charges on the new sentence.

      Accordingly, we vacate the judgment of sentence and remand. The

sentencing court is instructed to apply credit to the balance of Appellant’s new

sentence for all the time he was in custody between his arrest on the new

charges and his sentencing for those offenses. In the event the credit exceeds

his remaining time, it may be applied to his original sentence.

      Judgment of sentence vacated. Remanded with instructions. Jurisdiction

relinquished.




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J-S08032-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2018




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