J-S54014-18



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
                v.                       :
                                         :
                                         :
 DEANDRE LEVON JONES                     :
                                         :
                     Appellant           :   No. 1781 WDA 2017

        Appeal from the Judgment of Sentence September 26, 2017
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0001457-2017


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.                      FILED NOVEMBER 26, 2018

      Deandre Levon Jones challenges the judgment of sentence entered in

the Erie County Court of Common Pleas, following his convictions on drug

offenses. Specifically, he contests the inclusion of juvenile adjudications in

calculating his prior record score pursuant to 204 Pa. Code § 303.6. Appellant

believes this provision of the Pennsylvania Sentencing Guidelines violates the

Eighth Amendment’s proportionality requirements. Appellant also requests the

application of credit for time served to his sentence. We remand with

instructions.

      The facts and procedural history of this case are as follows. During a

phone call, Appellant arranged to sell heroin to a buyer. Unfortunately for

Appellant, his customer was a confidential informant. After he was charged

with eleven separate offenses stemming from the incident, Appellant pled
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guilty to possession with intent to distribute, criminal use of a communications

facility, and driving under a suspended license.1 The court sentenced him to

an aggregate six to fourteen years’ incarceration. In doing so, the court noted

Appellant’s young age and high prior record score indicating his status as a

repeat    first-   and   second-degree         felony   offender   (“RFEL”).   See   N.T.

Sentencing, 9/26/17, at 17.

       Appellant filed a timely post-sentence motion, asking the court to modify

his sentence. The court held a hearing, but ultimately denied the motion.

Appellant filed a timely notice of appeal, and this case is now before us.

       Appellant first challenges the trial court’s calculation of his prior record

score as an RFEL. Appellant suggests that the Pennsylvania Sentencing

Guideline permitting inclusion of the “most serious juvenile adjudication of

each prior disposition … in the Prior Record Score” is unconstitutional. 204 Pa.

Code. § 303.6. As support for this proposition, Appellant offers the United

States Supreme Court cases of Miller v. Alabama, 567 U.S. 460 (2012)

(holding mandatory life without parole sentences imposed on juveniles are

unconstitutional), Montgomery v. Louisiana, 136 S.Ct. 718 (2015)

(determining Miller applies retroactively during collateral proceedings).

       Though the trial court considered this a discretionary aspects claim,

Appellant clearly disputes the constitutionality of the sentencing guideline.

Such a challenge raises a question of law. See Commonwealth v. Bonner,
____________________________________________


1 35 P.S. § 780-116(a)(30); 18 Pa.C.S.A. § 7512(a); and 75 Pa.C.S.A. §
1543(a), respectively.

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135 A.3d 592, 597 (Pa. Super. 2016). Therefore, our standard of review is de

novo, and our scope of review is plenary. See id.

      To be included in an offender’s prior record score, juvenile offenses must

have occurred on or after the offender’s 14th birthday, and the juvenile court

must have made an express finding that the adjudication was for a felony or

an enumerated first-degree misdemeanor. See 204 Pa. Code § 303.6(a).

“Only the most serious juvenile adjudication of each prior disposition is

counted in the Prior Record Score.” Id., at subsection (b). As noted, Appellant

has a prior record score of RFEL, based in large part on his juvenile

adjudications.

      Appellant concedes his challenge is nearly identical to the one presented

to a previous panel of this Court in Bonner. There, Bonner also argued that

juvenile adjudications should be weighed differently than adult convictions for

purposes of calculating a prior record score. The panel reasoned:

      Roper, Graham, and Miller all addressed the constitutionality of
      sentencing a defendant for offenses committed as a juvenile. In
      this case, [Bonner] was an adult when he committed the instant
      offenses. Thus, Roper, Graham, and Miller are inapposite. Here,
      [Bonner] is being held to account for conduct and choices he made
      as an adult with full knowledge of the nature and scope of his own
      criminal past, including juvenile adjudications. Thus, [Bonner’s]
      contention that the sentencing guidelines fail to recognize the lack
      of maturity of a youthful offender holds little sway in the instant
      circumstances. Moreover, the sentencing guidelines attempt to
      ensure that a defendant knows the prior juvenile adjudications
      that will be used during subsequent adult sentencing proceedings
      by limiting such use to those committed after he turned 14 and
      that (typically) occurred within the past 14 years. They also
      include only the most serious adjudication of each disposition,
      effectively giving the defendant a volume discount for criminal

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      conduct committed as a juvenile.

135 A.3d at 601 (citations omitted).

      The panel noted Bonner had committed his offenses as an adult, and

that the criminal justice system seeks to “reduce the risk of recidivism by

imposing harsher punishments upon those who have previously committed

crimes, either as juveniles or adults, and failed to conform their conduct

appropriately.” Id., at 601. The Court concluded that the inclusion of juvenile

adjudications in the calculation of a prior record score does not violate the

proportionality principles of the Eighth Amendment.

      Appellant acknowledges we are bound by the holding in Bonner. See

Appellant’s Brief, at 14. Thus, he is due no relief on his first argument.

      Appellant’s second challenge concerns the trial court’s refusal to award

him credit on this sentence for time served.

      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.A. § 9760(1).

      “[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. Credit is not given, however, for a commitment

by reason of a separate and distinct offense.” Commonwealth v. Clark, 885

A.2d 1030, 1034 (Pa. Super. 2005) (citations and internal quotations



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omitted).

      Appellant seeks to have 58 days of credit for time served from April 12,

2017, to June 9, 2017, applied to his sentence. The sentencing court denied

this request, stating it applied that credit at a different docket. Appellant

agrees he was given some time credit at the other docket, but maintains that

credit represented a different period of incarceration.

      Before reaching the merits of this issue, we note the Commonwealth

has incorrectly asserted Appellant waived this issue by failing to include it in

his Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant’s

challenge to the amount of time credit he received implicates the legality of

his sentence, so this issue cannot be waived. See Commonwealth v. Gibbs,

181 A.3d 1165, 1166 (Pa. Super. 2018).

      The sentencing transcript reveals Appellant began serving a sentence at

another docket on June 9, 2017. See N.T. Sentencing, 9/26/17, at 12.

Appellant’s counsel asked that the time he served beginning on April 12, 2017,

when he was arrested for the crimes at issue here, until June 9, 2017, be

applied toward his sentence. See id., at 13. The sentencing court responded

that it had already given him credit for this time at the other docket. See id.

When asked, the probation officer who prepared Appellant’s pre-sentence

investigation report stated that Appellant had been given 53 days of credit

time at the other docket. See id.

      Appellant asserts the 53 days of credit awarded at the other docket

actually represents the time he served for those crimes before posting bail,

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from October 17, 2016, to December 6, 2016. He concludes he has not been

awarded time credit for the 58 days from April 12, 2017, to June 9, 2017 at

either docket.

      The record does not settle this discrepancy. Examination of the docket

sheets from Appellant’s other conviction confirms Appellant was awarded 53

days of time credit for a sentence beginning on June 9, 2017. And those docket

sheets support his assertion that he served 53 days in jail before posting bail

on December 6, 2016. So, we cannot say with certainty if Appellant has been

awarded credit for the time served from April 10, 2017, when he was

incarcerated again, until June 9, 2017, when he began serving the other

sentence.

      Thus, out of an abundance of caution, we remand for the trial court to

examine the award of credit time. Appellant is not entitled to “double credit”—

a duplicate award of credit for time served at both dockets. Rather, we instruct

the trial court to determine whether Appellant has been given credit for the

time served from April 10, 2017, to June 9, 2017, at either docket. If not, the

trial court is directed to award those 58 days of time credit to Appellant’s

sentence.

      The trial court shall make this determination within 30 days of the

remand and report its findings in a supplemental Rule 1925(a) opinion.

      Case remanded with instructions. Panel jurisdiction retained.




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