J-S52024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

JOSHUA SCOTT SCHAUER

                            Appellant                      No. 161 MDA 2017


            Appeal from the Judgment of Sentence August 31, 2016
               In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000761-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                               FILED AUGUST 22, 2017

        Joshua Scott Schauer appeals from his judgment of sentence, entered

in the Court of Common Pleas of Lebanon County, following his conviction

for delivery of a controlled substance,1 criminal use of a communication

facility,2 and criminal conspiracy.3           After careful review, we vacate and

remand.

        The trial court set forth the relevant facts of the case as follows:

        On March 7, 2013, a jury found [Schauer] guilty of Delivery of a
        Controlled Substance (crack cocaine), Criminal Use of a
        Communication Facility, and two counts of Conspiracy. On June
        26, 2013, the trial court sentenced him to an aggregate term of
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1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 7512(a).
3
    18 Pa.C.S. § 903(c).
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        2 to 10 years’ incarceration, with [Recidivism Risk Reduction
        Incentive (RRRI)]4 eligibility at 18 months.      The sentence
        included a mandatory minimum pursuant to 18 Pa.C.S. § 6317,
        Drug-[F]ree [S]chool [Z]ones. After the denial of post-sentence
        motions, [Schauer] filed a timely direct appeal and began
        serving his sentence.      In December 2014, [Schauer] was
        released on parole after serving 18 months.

        On February 24, 2015, this Court reversed and remanded for
        resentencing as a result of the decision in Alleyne v. United
        States, 133 S.Ct. 2151 (2013), which rendered [s]ection 6317
        unconstitutional.

        On March 18, 2015, the trial court resentenced [Schauer] to 18
        months to 10 years’ incarceration. At the resentencing hearing,
        [Schauer’s] counsel told the court that they were there “on the
        issue of constitutional fault [o]n the mandatory minimum
        sentence.” Counsel then informed the court of [Schauer’s]
        successful participation in addiction and treatment programs
        while he was incarcerated for 18 months and after his release.

        Following argument, the court stated: “So what I’m going to do
        is just a technical resentencing. It’s the same thing only we’ll
        just do time served and he’s immediately released on parole. All
        the other conditions will remain the same as they would have
        previously been imposed.” [Schauer] did not object, and the
        proceeding concluded[.]

        On March 30, 2015, [Schauer’s] counsel filed a Petition to
        [W]ithdraw as Counsel. During the pendency of that withdrawal
        motion, [Schauer] asked counsel to file a direct appeal. Counsel
        filed a [n]otice of [a]ppeal on April 22, 2015, 35 days after the
        court had resentenced [Schauer] in open court. [Thereafter,]
        the trial court filed a Pa.R.A.P. 1925(a) statement requesting the
        Court to quash the appeal as untimely.

Post-Sentence Motion Trial Court Opinion, 12/14/2016, at 1-2 (citations

omitted in original).



____________________________________________


4
    See 61 Pa.C.S. §§ 4501-4512 (RRRI Act).


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     On appeal, our Court found that there had been an administrative

breakdown in the court system and excused Schauer’s untimely filing of his

notice of appeal. The Court vacated and remanded for resentencing so that

the trial court could properly inform Schauer of his rights on the record, see

Pa.R.Crim.P. 704(c)(3)(a) (sentencing proceeding), so that the court could

state its reasons on the record for imposing its sentence in accordance with

42 Pa.C.S. § 9712(b), and to allow Schauer to file a post-sentence motion to

challenge the discretionary aspects of his sentence.     Commonwealth v.

Schauer, No. 722 MDA 2015 (Pa. Super. filed July 28, 2016).

     On August 31, 2016, the trial court resentenced Schauer to 16

months’ to 7 years’ incarceration for the drug delivery conviction, 1 to 7

years’ incarceration for criminal conspiracy, and 1 to 7 years’ incarceration

for the criminal use of communication facility charge.   The conspiracy and

communication sentences were ordered to be served concurrent to the

delivery sentence.    Because Schauer had already served in excess of his

minimum sentence, the court immediately paroled him.          The court also

noted that Schauer was RRRI eligible.

     On September 8, 2016, Schauer filed post-sentence motions which the

court denied on December 28, 2016. Schauer filed a timely notice of appeal

and court-ordered Rule 1925(b) concise statement of errors complained of

on appeal.       On appeal, Schauer presents the following issues of our

consideration:




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       (1)    Did the trial court err by not granting [Schauer] total credit
              for the entire period of time he was incarcerated, solely on
              this matter?

       (2)    Did the trial court err when not taking into consideration
              all the requisite factors when imposing the maximum
              sentence in this matter?

       In his first issue on appeal, Schauer contends that the court erred by

not granting him credit toward the maximum portion of his sentence when

he served more (18 months) than the minimum prior to his being paroled.

Specifically, he claims he should be given an additional credit of six months

toward his maximum sentence representing the excess that he served

beyond his 12-month RRRI minimum sentence.5

       Under section 9760(1) of the Sentencing Code:

       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.

42 Pa.C.S. § 9760(1) (emphasis added).

       Section 9760 is silent with regard to crediting time served in excess of

a defendant’s RRRI minimum sentence. Here, where Schauer had already

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5
 See 61 Pa.C.S. § 4505(c)(2) (RRRI minimum shall be equal to ¾ of the
minimum sentence imposed when minimum sentence is three years or less).


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served more than his minimum sentence, the court correctly credited

Schauer with the total time he had served in prison and on parole by

deducting three years off his maximum sentence, effectively reducing it from

10 years to 7 years’ incarceration. See 42 Pa.C.S. § 9760 (court shall give

credit “against the maximum term and any minimum term.”).

     Although not raised by Schauer on appeal, we recognize that there is a

valid credit issue that we must address sua sponte. See Commonwealth

v. Dixon, 2017 PA Super 129 (claim based upon failure to give credit for

time served is challenge implicating legality of one's sentence which is

appealable as of right); Commonwealth v. Kitchen, 814 A.2d 209, 214

(Pa. Super. 2002) (“unlike discretionary aspects of sentence, the legality of

sentence is never waived and may be the subject of inquiry by an appellate

court sua sponte.”).

     In fashioning Schauer’s sentence, the court made the following

statement regarding credit:

     The Defendant shall not be afforded any credit toward his
     maximum sentence since the Court reduced the sentence
     this date in recognition of an original sentence of 10 years
     and he has served approximately 3 years of that sentence.

     The Court specifically directs the Parole Board not to grant the
     maximum credit on this sentence; however, the Court
     recognizes that he is immediately eligible for parole because the
     incarceration component of his sentence has already been
     served.

N.T. Sentencing Hearing, 8/31/2016, at 10-11 (emphasis in original).




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       In an effort to apply credit for the time he had served to date

(approximately three years), the trial court reduced Schauer’s original

maximum sentence from 10 years to 7 years.             However, section 9760(1)

clearly states that a court shall give credit “against the maximum term” of a

sentence.     Here, rather than reducing the maximum term of Schauer’s

sentence in an effort to reflect credit for time served, the court first should

have set its intended sentence and then applied three years’ credit to the

maximum term of that sentence.             Accordingly, we must vacate Schauer’s

judgment of sentence and remand so that the court can correctly apply

credit under section 9760(1) after it resentences Schauer.6

       Judgment of sentence vacated.           Case remanded for resentencing in

accordance with the dictates of this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2017
____________________________________________


6
  Having determined that Schauer’s sentence must be vacated, we need not
address his remaining issue regarding the discretionary aspect of his
sentence. However, if we were to do so, we would conclude that this issue
does not raise a substantial question. Commonwealth v. Urrutia, 653
A.2d 706, 710 (1995) (allegation that sentencing court “failed to consider”
or “did not adequately consider” certain factors does not raise substantial
question that sentence was inappropriate).



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