J-S06035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

CODY ROBERT MILLER

                               Appellant               No. 398 EDA 2016


           Appeal from the Judgment of Sentence December 29, 2015
       in the Court of Common Pleas of Monroe County Criminal Division
                       at No(s): CP-45-CR-0001172-2015
                                 CP-45-CR-0001177-2015

BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 28, 2017

        Appellant Cody Robert Miller appeals from a judgment of sentence of

twelve to forty-eight months’ imprisonment imposed in the Monroe County

Court of Common Pleas (“Monroe County court”) for retail theft 1 and driving

under the influence (“DUI”).2       Appellant argues that the Monroe County

court erred by failing to award him credit for three of the seven months he

was incarcerated prior to sentencing. The Commonwealth agrees that relief

is due. We vacate and remand for resentencing.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a)(1).
2
    75 Pa.C.S. § 3802(d)(1)(i).
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     On November 25, 2014, Appellant was sentenced in the Northampton

County Court of Common Pleas to twelve months’ probation for possession

of drug paraphernalia.

     On May 20, 2015, Appellant was arrested in Monroe County in the

cases presently on appeal, which the Monroe County court docketed at Nos.

1172-2015 and 1177-2015. Because Appellant was unable to post bail, he

was incarcerated in Monroe County. On August 26, 2015, Appellant pleaded

guilty to retail theft at No. 1172-2015 and DUI at No. 1177-2015.

     On August 27, 2015, law enforcement officials transported Appellant to

Northampton County on a probation detainer issued in the Northampton

County case. Appellant remained incarcerated in Northampton County until

December 29, 2015, when he returned to the Monroe County court for

sentencing.

     On December 29, 2015, the Monroe County court ordered Appellant to

serve an aggregate state sentence of twelve to forty-eight months’

imprisonment.3     The   court gave   Appellant credit for    his period of

incarceration in Monroe County—May 20, 2015 to August 27, 2015—but did

not award credit for his period of incarceration in Northampton County.




3
  In No. 1172-2015, the court sentenced Appellant to nine to forty-two
months’ imprisonment for retail theft.  In No. 1177-2015, the court
sentenced Appellant to a consecutive term of three to six months’
imprisonment for DUI.



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     On January 6, 2016, Appellant filed post-sentence motions asserting

that his sentence was excessive. He did not object to the lack of credit for

time served in Northampton County.          On January 7, 2016, the Monroe

County court denied Appellant’s post-sentence motions.

     Appellant’s    probation   violation   hearing    in   Northampton   County

apparently took place on January 8, 2016.4            It appears that Appellant’s

probation officer informed the court about Appellant’s Monroe County

sentence and asked that “we close this case out so [Appellant] can serve his

state sentence.”    N.T., Probation Violation Hr’g, 1/8/16, at 3.      It further

appears that the Northampton County court agreed to “close this case”

because Appellant “has other issues in SCI to deal with.” Id. at 4.

     On February 3, 2016, Appellant filed timely appeals in both Monroe

County cases.      This Court docketed both appeals at the same caption

number.     Both Appellant and the Monroe County court complied with

Pa.R.A.P. 1925.

     Appellant raises one issue on appeal:

          Where upon review of the record from another county it is
          learned that [A]ppellant received no time credit for time
          spent in that county on a probation violation, is not
          [Appellant] entitled to credit on the sentence served in the
          home county that formed the basis for the probation
          violation?


4
  The certified record from Monroe County does not include the transcript of
the Northampton County hearing. An alleged hearing transcript is appended
to Appellant’s brief.



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Appellant’s Brief, at 6. In response to Appellant’s brief, the Commonwealth

filed a letter stating that it agreed with Appellant’s position.

      Appellant challenges the Monroe County court’s refusal to award credit

for time served in Northampton County. This is a question of law, because it

implicates the legality of Appellant’s sentence. Commonwealth v. Aikens,

139 A.3d 244, 245 (Pa. Super. 2016).         Our standard of review over such

questions is de novo, and our scope of review is plenary. Id.              Although

Appellant did not raise this argument in his post-sentence motions, we will

review this issue because challenges to the legality of sentence are non-

waivable.   Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super.

2002).

      Section 9760 of the Pennsylvania Judicial Code governs credit for time

served and provides in pertinent part:

         After reviewing the information . . . 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.

42 Pa.C.S. § 9760(1).

      Our analysis of section 9760(1) in Commonwealth v. Smith, 853

A.2d 1020 (Pa. Super. 2004), is controlling. The defendant in Smith was

sentenced to probation on a firearms charge.         Id. at 1023.   Three years


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later, he was arrested in a second case. Id. He was released on bail in the

second case but was incarcerated on a probation detainer issued in the first

case. Id. He remained in jail on the detainer for approximately one year

and then proceeded to trial in the second case.      Id.   The jury found him

guilty, and the trial court sentenced him to a term of imprisonment. Id. at

1022.    Subsequently, the court closed the probation violation in the first

case without imposing further penalty, but it refused to credit the time

served on the probation detainer against the defendant’s sentence in the

second case. Id. at 1022-23.

        On appeal, applying section 9760(1), this Court held that the

defendant was entitled to credit in the second case for time served on the

detainer issued in the first case. Id. at 1025. We further reasoned that the

principle of “equitable crediting of pre-trial incarceration,” which our

Supreme Court delineated with respect to parole in Martin v. Pa. Bd. of

Prob. and Parole, 840 A.2d 299, 308–09 (Pa. 2003), applies with equal

force to probation.    Smith, 853 A.2d at 1026.        We stated that where

“pretrial incarceration is attributable to both [a] probation detainer and . . .

new criminal charges, it must be attributed to either [the] sentence under

the new criminal charges or to [the] sentence imposed for violation of

probation.”    Id.    Because the court closed the defendant’s probation

violation proceedings without imposing penalty, the time he served in




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pretrial detention on the probation detainer in the first case had to be

credited against the sentence imposed in the second case. Id.

       Pursuant to Smith, if the Northampton County case was closed

without further penalty, the Monroe County court is required to award

Appellant credit for time served on the Northampton County detainer.

Appellant was on probation in Northampton County at the time of his arrest

in Monroe County. Following this arrest, Appellant was incarcerated both for

failing to post bail in Monroe County and as a result of the Northampton

County detainer. Thus, his pretrial incarceration was attributable to both his

Monroe County arrest and his Northampton County detainer.         The Monroe

County court sentenced him to imprisonment but only awarded him credit

for three of his seven months of pretrial incarceration.

       It appears, however, that the Northampton County court later closed

Appellant’s probation case without penalty.    If so, he would be entitled to

receive credit in Monroe County for all pretrial incarceration, including time

served in Northampton County, because Appellant’s lone prison sentence

was in Monroe County. See Smith, 853 A.2d at 1022-23, 1026.

       Conceivably, the Monroe County court declined to credit Appellant for

time   served   in   Northampton   County   because    it   assumed   that   the

Northampton County court would sentence Appellant to imprisonment for his

probation violation and credit Appellant’s incarceration in Northampton

County against his Northampton County sentence. Although this assumption



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was reasonable, it now appears that the Northampton County court took a

different course of action.

      To confirm what action the Northampton County court took, we direct

the Monroe County court to hold a hearing to determine the disposition of

the Northampton County case. If the Northampton County case was closed

without further penalty, we direct the Monroe County court to award

Appellant credit for all time served between the date of arrest in Monroe

County, May 20, 2015, and the date of sentencing, December 29, 2015.

      Judgment of sentence vacated.       Case remanded for sentencing

proceedings in accordance with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




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