J-S67012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KODY VERNON KISSEL                    :
                                       :
                   Appellant           :   No. 789 MDA 2019

       Appeal from the Judgment of Sentence Entered April 9, 2019
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0005577-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KODY VERNON KISSEL                    :
                                       :
                   Appellant           :   No. 790 MDA 2019

       Appeal from the Judgment of Sentence Entered April 9, 2019
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0006388-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KODY VERNON KISSEL                    :
                                       :
                   Appellant           :   No. 791 MDA 2019

       Appeal from the Judgment of Sentence Entered April 9, 2019
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0006644-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
J-S67012-19


                                                 :
                v.                               :
                                                 :
                                                 :
    KODY VERNON KISSEL                           :
                                                 :
                       Appellant                 :   No. 792 MDA 2019

          Appeal from the Judgment of Sentence Entered April 9, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0005573-2016


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

MEMORANDUM BY OLSON, J.:                                    FILED JULY 30, 2020

        Appellant, Kody Vernon Kissel, appeals from the judgment of sentence

entered on April 9, 2019, following his guilty pleas to burglary, theft, and

narcotics offenses arising out of four distinct criminal episodes as charged by

the Commonwealth in four separate criminal informations.1 We vacate the

judgment of sentence in part and affirm in all other respect.




____________________________________________


*   Former Justice specially assigned to the Superior Court.

1  More specifically, at docket number CP-67-CR-0005573-2016 (hereinafter
“5573”), Appellant pled guilty to burglary and theft by unlawful taking. 18
Pa.C.S.A.    §§ 3502(a)(2)      and   3921(a).       At   docket     number
CP-67-CR-0005577-2016 (hereinafter “5577”), Appellant pled guilty to three
counts each of burglary, theft by unlawful taking, and receiving stolen
property. 18 Pa.C.S.A. §§ 3502(a)(2), 3921(a), and 3925(a). At docket
number CP-67-CR-0006388-2016 (hereinafter “6388”), Appellant pled guilty
to possession of heroin and possession with intent to deliver heroin. 35
§§ 780-113(a)(16)       and    780-113(a)(30).       At   docket     number
CP-67-CR-0006644-2016 (hereinafter “6644”), Appellant pled guilty to retail
theft. 18 Pa.C.S.A. § 3929(a)(1).



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       We summarize the relevant facts and procedural history of this case as

follows. Appellant entered open guilty pleas to the aforementioned charges

on April 7, 2017. Appellant was accepted into the York County Drug Treatment

Court Program but was unsuccessful and removed from the program on July

17, 2018. Appellant re-entered the treatment program on December 18,

2018, but was discharged again on January 15, 2019. On March 25, 2019,

the trial court sentenced Appellant.           Relevant to this appeal, Appellant

requested 502 days of credit for time served.2            After both parties filed

post-sentence motions, the trial court resentenced Appellant as follows. At

docket number 5573, the trial court imposed a sentence of two to five years

of imprisonment. At docket number 6644, the trial court imposed a sentence

of nine months to two years of incarceration. The trial court imposed the

sentences at docket numbers 5573 and 6644 concurrently to each other. At

docket number 5577, the trial court imposed a sentence of two to five years

of incarceration.     The trial court imposed this sentence consecutive to the

sentences at docket numbers 5573 and 6644. At docket number 6388, the

trial court sentenced Appellant to serve two to five years of imprisonment for

possession of heroin with the intent to deliver, together with a concurrent term

of incarceration of two to four months’ imprisonment for simple possession of

____________________________________________


2  The Commonwealth does not dispute that Appellant was entitled to 502
days of credit for time-served. However, as will be discussed, the dispute
centers on the application of the credit to Appellant’s sentences.




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heroin.3 The trial court ordered the sentence imposed at docket number 6388

to run consecutively to the sentences imposed at docket numbers 5573 and

6644, as well as consecutively to the sentence at docket number 5577.

Accordingly, Appellant received an aggregate sentence of six to 15 years in

prison.

       The trial court gave Appellant 502 days of credit against the concurrent

sentences imposed at docket numbers 5573 and 6644, but denied credit

against the consecutive sentences at docket numbers 5577 and 6388. N.T.,

3/25/2019, at 19-20. The trial court determined that Appellant was eligible

for the Recidivism Risk Reduction Incentive (RRRI) program. Appellant and

the Commonwealth again filed post-sentence motions.4 On April 10, 2019,

the trial court entered an order, which provided in pertinent part:

       The RRRI minimum sentences on the above captioned cases are
       vacated, and [Appellant] is hereby sentenced to an aggregate
____________________________________________


3  The sentences for possession of heroin with the intent to deliver and simple
possession of heroin should have merged for sentencing purposes. See
Commonwealth v. James, 46 A.3d 776, 780 (Pa. Super. 2012). Thus, we
vacate the sentence for simple possession, but because we have not upset the
trial court’s overall sentencing scheme at docket number 6388, we need not
remand for resentencing. See Commonwealth v. Robinson, 817 A.2d
1153, 1163 n.14 (Pa. Super. 2003) (finding no need for remand because
vacating assault sentence did not disturb sentencing scheme where the
assault sentence was concurrent with other terms and did not increase the
aggregate length of incarceration).

4 Appellant challenged the application of his credit for time-served. The
Commonwealth argued that Appellant received illegal sentences under the
RRRI.




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       RRRI minimum sentence of 8 years [and four] month[s] (100)
       months, [Appellant] shall be given credit [at docket numbers]
       5573 [] and 6644 [] of 502 days. His request for credit time [at
       docket numbers] 5577 [] and 6388 [] is hereby denied. All
       remaining conditions of the sentences shall remain in full force
       and effect.

Order of Court, 4/10/2019, at *1. This timely appeal resulted.5

       On appeal, Appellant presents the following issue for our review:

       Did the [t]rial [c]ourt err when it did not give [] Appellant credit
       against the maximum terms and minimum terms for all time spent
       in custody as a result of the charges for which a prison sentence

____________________________________________


5 Appellant filed separate copies of the notice of appeal listing all four-docket
numbers at each docket. On May 17, 2019, the trial court directed Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied timely on June 7, 2019. On August 7,
2019, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

On June 4, 2019, this Court issued a rule to show cause why the appeal should
not be quashed based upon our Supreme Court’s decision in Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018) (holding that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each of those cases” pursuant to Pa.R.A.P. 341 and its note).
Appellant did not file a response. On June 6, 2019, this Court entered a per
curiam order consolidating the four docketed cases. On February 5, 2020,
this Court entered a per curiam order staying this matter pending the en banc
resolution of Commonwealth v. Johnson, 1620, 2045, 2046, 2047 EDA
2018, concerning the proper application of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) in light of Commonwealth v. Creese, [216] A.3d [1142]
(Pa. Super. [] 2019) (reading Walker as a mandate to quash unless notices
of appeal bearing only one trial court docket number are filed at each docket
resolved by the order challenged on appeal). On July 9, 2020, the en banc
panel in Johnson expressly overruled Creese, supra and held that as long
as the appellant files a separate notice of appeal at each trial court docket,
“[t]he fact that the notices [of appeal] contained [more than one trial court
docket number] is of no consequence.” Commonwealth v. Johnson, 2020
WL 3869723 at *11 (Pa. Super. 2020). Accordingly, we decline to quash the
instant appeal.


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      is imposed or as a result of the conduct on which such charge is
      based?

Appellant’s Brief at 1.

      Appellant claims that “the trial court's failure to credit [Appellant’s] five

hundred two (502) days of credit time to [docket numbers] 5577 [] and []

6388 [] constituted an abuse of the trial court's discretion and was improper

and in violation of Section 9760 of the Pennsylvania sentencing statute.”

Appellant’s Brief at 2 (superfluous capitalization omitted). Appellant argues

that pursuant to 42 Pa.C.S.A § 9760, he “is entitled to have time served for a

probation detainer credited toward his sentence [because] the pre-trial

incarceration resulted in part from the charges for which he is serving a

sentence.” Appellant’s Brief at 3, citing Commonwealth v. Smith, 853 A.2d

1020, 1025 (Pa. Super. 2004).       Appellant argues that he “served time on

detainers” which “grew out of [Appellant’s] alleged criminal activity, at least

in part, from [docket numbers] 5577 [] and [] 6388[.]” Appellant’s Brief at

3. Appellant also claims that the trial court failed to consider “appropriate

mitigating circumstances” when applying credit for time served. Appellant’s

Brief at 2 and 4.

      Failure to give credit for time served implicates the legality of the

sentence imposed. See Commonwealth v. Davis, 852 A.2d 392, 399 (Pa.

Super. 2004). This Court has stated:

      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

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      plenary and is limited to determining whether the trial court
      committed an error of law.

Commonwealth v. Whatley, 221 A.3d 651, 653 (Pa. Super. 2019) (citation

omitted).

      Credit for time served is governed by 42 Pa.C.S.A. § 9760, which

provides, in pertinent 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.

                           *           *            *

      (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(1) and (4) (emphasis added).

      “Section 9760 does not contemplate credit for time served to be

awarded twice. Similarly, our Courts have consistently held that such double

credit for time served is neither contemplated, nor authorized, by Section

9760[.]” Barndt v. PA Dept. of Corrections, 902 A.2d 589, 595 (Pa.

Cmwlth. 2006); see also Taglienti v. Dep't of Corrections, 806 A.2d 988,

993 (Pa. Cmwlth. 2002) (“[Credit for time served prior to the sentencing date

is governed by Section 9760 which does not provide for credit for time on

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unrelated offenses or when credit has been already credited against another

sentence.”); see also Commonwealth v. Hollowell, 604 A.2d 723, 726 (Pa.

Super. 1992) (where defendant was sentenced separately on convictions

resulting from two criminal informations, and awarded credit for time

previously served as to one set of charges, he was not entitled to credit for

time served on second set of charges; appellant should not receive a windfall

for sentencing on completely unrelated crime).

      Here, the trial court determined:

      The Court credited [Appellant] 502 days against his sentence in
      case [] 5573 [] and case [] [6644] [], which run concurrent to one
      another. The sentences imposed for cases [] 5577 [] and [] 6388
      [] run consecutive to [] 5573 [], and to each other. Therefore, the
      time has already been credited against another sentence, the
      sentence in case [] 5573 [], pursuant to 42 Pa.C.S.A. §9760(4).
      [Appellant] is essentially arguing for triple credit. [Although
      Appellant acknowledges that credit for 502 days was applied
      against the sentences imposed at 5573 and 6644, which were set
      to run concurrently, he asks that the same 502 days credit be
      applied against the consecutive sentences at 5577 and 6388.
      Appellant] cites no authority for such generous credit. As the
      credit [awarded against Appellant’s] sentences [was applied]
      according to statute, his sentences should not be disturbed.

Trial Court Opinion, 8/7/2019, at 4.

      We discern no abuse of discretion by the trial court in refusing to credit

Appellant for time-served at docket numbers 5577 and 6388. As Section 9760

and interpretive case law make clear, Appellant is only entitled to credit for

time-served “that has not been credited against another sentence.” 42

Pa.C.S.A. § 9760(4) (emphasis added). Here, there is no dispute that the trial

court applied 502 days credit for time-served to another sentence. Thus, the


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trial court lacked statutory authority to apply the same credit for time-served

to the consecutive sentences imposed at docket numbers 5577 and 6388.

Moreover, Appellant is not entitled to a sentencing windfall. As such, we reject

Appellant’s claim that he received an illegal sentence. Accordingly, Appellant’s

sole appellate claim fails.

      Sentence for possession of heroin vacated. Judgment of sentence on

remaining convictions affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/30/2020




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