J-S23015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellee

                     v.

JONATHAN JOEL PUPPO

                           Appellant                       No. 3136 EDA 2016


             Appeal from the Judgment of Sentence June 2, 2016
               In the Court of Common Pleas of Carbon County
             Criminal Division at No(s): CP-13-CR-0001138-2014


BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                     FILED JULY 19, 2017

     Appellant, Jonathan Joel Puppo, appeals from the judgment of

sentence entered on June 2, 2016 in the Criminal Division of the Court of

Common Pleas of Carbon County. We affirm.

     The facts and procedural history in this case are as follows. In 2014,

Appellant    was   serving    a     probationary    sentence     at   docket   number

CP-13-CR-200-2011 (CR-200-2011) because of a conviction arising from the

unlawful sale of a firearm.           After he incurred new charges, including

aggravated    assault     charges    in   the   present   case   at   docket   number

CP-13-CR-0001138-2014 (CR-1138-2014), Appellant was remanded to the

custody of the Carbon County Detention Facility.             On January 15, 2015,
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Appellant signed a stipulation agreeing to waive his right to a Gagnon II1

hearing.    At that time, Appellant received a violation of probation (VOP)

sentence of six to 12 months’ incarceration, which was deemed to

commence on November 3, 2014.                  On May 13, 2015, approximately six

months later (and shortly after the minimum term on Appellant’s VOP

sentence expired), Joseph Bettine of the Carbon County Adult Probation

office visited Appellant in jail.       The trial court summarized that visit as

follows:

       During the visit, [Appellant] indicated to Mr. Bettine that he
       wanted to [serve the maximum term of his VOP sentence]
       because he knew he would not be released due to the new
       charges [filed in] the present case[, CR-1138-2014]. Mr. Bettine
       responded that that would be acceptable.          There was no
       discussion clarifying whether [Appellant] would receive credit for
       time served in the present case without being paroled for the
       sentence he was then serving for CR-200-2011. As a result of
       that conversation, [Appellant] never applied for nor received
       parole, and he served the remainder of his [maximum 12-month
       VOP sentence].

Trial Court Opinion, 11/16/16, at 2 (footnotes omitted).




____________________________________________


1
  Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (noting that probationer
is entitled to two hearings, a pre-revocation hearing and a final revocation
hearing, before a final revocation decision can be made).




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       On January 19, 2016, Appellant pled guilty to aggravated assault in

CR-1138-2014.2        Thereafter, on June 2, 2016, the trial court sentenced

Appellant to 15 to 30 months’ incarceration, followed by one year of state

probation in the present case. The court also awarded Appellant 210 days

credit toward his sentence.

       Appellant filed a post-sentence motion on June 10, 2016.        In his

motion, Appellant argued that he should receive credit for time served in the

amount of 187 days for the period from May 3, 2015 to November 5, 2015,

which essentially represents the balance of Appellant’s VOP sentence at

CR-200-2011 following the visit by Mr. Bettine. Appellant also argued that

the trial court should reconsider his eligibility for a motivational boot camp

program, the Recidivism Risk Reduction Incentive (RRRI) program, and state

intermediate punishment.

       Following a hearing on August 19, 2016, the court, on August 30,

2016, entered an order granting partial relief on Appellant’s post-sentence

motion.      Specifically, the court denied Appellant’s request for state

intermediate punishment, as well as his request to participate in the RRRI

program. The court also denied Appellant’s request for additional credit for



____________________________________________


2
  Appellant simultaneously entered guilty pleas at two separate docket
numbers. As neither of these convictions nor sentences play any role in our
analysis herein, we shall not refer to them further.



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time served. The court granted Appellant’s request to be considered for the

boot camp program.

       Appellant filed a timely notice of appeal on September 27, 2016.3

That same day, the court instructed Appellant to file, within 21 days, a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant’s concise statement filed on October 27, 2016 included

the issues raised in his brief. The trial court issued its Rule 1925(a) opinion

on November 16, 2016. Appellant’s claims are now ripe for our review.4

       In his first issue, Appellant alleges that the trial court erred in refusing

to award him credit for time served in the Carbon County Correctional
____________________________________________


3
 On August 29, 2016, Appellant’s counsel withdrew and discontinued a prior
appeal filed on June 29, 2016.
4
  In its opinion, the trial court initially argues that because Appellant filed his
concise statement nine days after the court’s deadline, the untimely
submission waived review of Appellant’s claims. See Trial Court Opinion,
11/16/16, at 5. In his brief, Appellant responds that he did not waive
appellate review since neither he nor his counsel received a copy of the
court’s September 27, 2016 order. See Appellant’s Brief at 7. It is
well-settled that “[a] claim based upon the failure to give credit for time
served is a challenge implicating the legality of one's sentence.”
Commonwealth v. Dixon, 2017 WL 1549015, *1 (Pa. Super. 2017);
Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa. Super. 2014).                       A
challenge to the legality of a sentence is appealable as of right and is not
subject to waiver even if the appellant omits the claim from his concise
statement. Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super.
2008), aff’d, 17 A.3d 332 (Pa. 2011); see also Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (claim that implicates legality of
sentence cannot be waived and need not be properly preserved before the
trial court). Since Appellant’s time credit claim challenges the legality of his
sentence, we decline to find waiver based upon the untimely nature of his
concise statement.



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Facility from May 3, 2015 through November 5, 2015, a period of 187 days.

See Appellant’s Brief at 4.     Appellant’s second issue asserts that he is

entitled to resentencing under the circumstances of this case. Id.

      Our scope and standard of review for illegal sentence claims is as

follows:

      The scope and standard of review applied to determine the
      legality of a sentence are well established. If no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction. An illegal sentence must be
      vacated. In evaluating a trial court's application of a statute, our
      standard of review is plenary and is limited to determining
      whether the trial court committed an error of law.

Dixon, 2017 WL 1549015, at *1, citing Commonwealth v. Leverette, 911

A.2d 998, 1001–1002 (Pa. Super. 2006).

      Pennsylvania courts award credit for time served pursuant to 42

Pa.C.S.A. § 9760. It states, in relevant 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.

42 Pa.C.S. § 9760(1).      “The principle underlying this statute is that a

defendant should be given credit for time spent in custody prior to

sentencing for a particular offense.”    Commonwealth v. Hollawell, 604

A.2d 723, 725 (Pa. Super. 1992).




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     Where an offender is incarcerated on both a probation detainer and

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

either the new sentence or the original sentence.      Martin v. Pa. Bd. Of

Probation & Parole, 840 A.2d 299 (Pa. 2003). “A defendant shall be given

credit for any days spent in custody prior to the imposition of sentence, but

only if such commitment is on the offense for which sentence is imposed.”

Commonwealth v. Infante, 63 A.3d 358, 367 (Pa. Super. 2013).                A

sentencing court lacks authority to award credit for time served on prior,

unrelated charges.   Wassell v. Commonwealth, 658 A.2d 466, 469 (Pa.

Cmmwlth. 1995).

     In rejecting Appellant’s claim, the trial court reasoned as follows:

     In this case, the time [Appellant] served from May [3], 2015 to
     November 5, 2015 counted toward his sentence for
     CR-200-2011 because he was never paroled.           Whether the
     failure to seek parole was the result of negligence or
     misunderstanding on [Appellant’s] part or a miscommunication
     between [Appellant] and Mr. Bettine of Carbon County Adult
     Probation cannot be known. In any event, [Appellant] indicated
     to Mr. Bettine that he wished to [serve the maximum sentence
     at CR-200-2011] and that he did not want to be paroled.
     Because [Appellant] was committed for a separate and distinct
     offense from May [3], 2015 to November 5, 2015, [the trial
     court] was without authority to award credit for that time served
     toward the new, unrelated charge in the present case.

Trial Court Opinion, 11/16/16, at 7 (footnote omitted).

     We perceive no error in the trial court’s determination. Appellant does

not contend that he was paroled from his VOP sentence. Without a parole

order, it is axiomatic that Appellant’s commitment during the challenged


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period related exclusively to his VOP sentence and, because of this, the trial

court lacked authority to award credit towards the sentence imposed for

Appellant’s aggravated assault conviction.     Accordingly, Appellant is not

entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




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