J-S73033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOHN THOMAS TAYLOR

                            Appellant              No. 423 WDA 2016


             Appeal from the Judgment of Sentence March 2, 2016
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002564-2015


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED OCTOBER 25, 2016

        John Thomas Taylor (“Appellant”) appeals from the judgment of

sentence entered in the Erie County Court of Common Pleas following his

guilty plea to unlawful restraint1 and recklessly endangering another person

(“REAP”).2 After careful review, we affirm.

        On August 18, 2015, Appellant was incarcerated in lieu of bond at

Docket No. CP-25-CR-0002564-2015, the instant matter.       Also on August

18, 2015, a probation detainer was lodged against Appellant on a prior

matter at Docket No. CP-25-CR-0001351-2014.


____________________________________________


1
    18 Pa.C.S. § 2902.
2
    18 Pa.C.S. § 2705.
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       Appellant remained incarcerated and, on January 4, 2016, entered a

guilty plea to unlawful restraint and REAP in the instant matter. On March 2,

2016, the trial court sentenced Appellant to 6 to 23½ months’ incarceration

on the unlawful restraint conviction and 2 years’ probation on the REAP

conviction.    At sentencing, the trial court credited Appellant’s continued

incarceration as follows: August 18, 2015 through November 28, 20153

toward the sentence at Docket No. CP-25-CR-0001351-2014, and November

29, 2015 through January 4, 2016 toward the sentence in the instant

matter.

       Appellant raises the following claim for our review:

       Whether [] Appellant’s sentence is illegal as the trial court
       changed, modified or increased the conditions of the sentence
       for which [] Appellant was detained without the benefit of a
       [p]robation [r]evocation [h]earing and denied [] Appellant credit
       on his current sentence[?]

Appellant’s Brief, p. 4.

       An allegation that a trial court failed to credit time in custody goes to

the legality of the sentence.        Commonwealth v. Clark, 885 A.2d 1030,

1032 (Pa.Super.2005); see also Commonwealth v. Hollawell, 604 A.2d

723, 725 (Pa.Super.1992) (“where an appellant challenges the trial court’s

failure to award credit for time served prior to sentencing, the claim involves

the legality of sentence.” (emphasis in original)). “A claim challenging the
____________________________________________


3
  Appellant’s detainer at Docket No. CP-25-CR-0001351-2014 was not
revoked and his sentence expired on November 28, 2015.



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legality of sentence is appealable as of right.” Hollawell, 604 A.2d at 725;

Clark, 885 A.2d at 1032.         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.

Commonwealth v. Leverette, 911 A.2d 998, 1001-1002 (Pa.Super.2006)

(internal citations omitted).

      The Crimes Code provides, in relevant part:

      § 9760. Credit for time served

      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.

                                      *****

            (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.




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42 Pa.C.S. § 9760 (emphasis provided).

      “Where an offender is incarcerated on both a Board [of Probation and

Parole] detainer and new criminal charges, all time spent in confinement

must be credited to either the new sentence or the original sentence.”

Commonwealth v. Mann, 957 A.2d 746, 749 (Pa.Super.2008) (quoting

Martin v. Pa. Bd. of Probation & Parole, 840 A.2d 299, 309 (Pa.2003))

(emphasis in original). However, once a court credits time spent in custody

toward one offense, that time is no longer “a result of” other charges and

cannot form a basis of a further credit for separate sentences.                     See

Hollawell, 604 A.2d at 726. As this Court has explained, a defendant is not

entitled to double credit:

      The absurdity of appellant’s case is clear.         Following his
      reasoning, appellant would receive a windfall in sentencing for a
      completely unrelated crime. This court does not deal in “volume
      discounts.” The operative rule . . . is that a defendant should
      receive credit only once for time served before sentencing.

Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa.Super.1996) (quoting

Hollawell, 604 A.2d at 726); see also Commonwealth v. Ellsworth, 97

A.3d 1255, 1257 (Pa.Super.2014) (noting that duplicative imposition of

credit for time served constitutes a patent and obvious sentencing mistake).

      Here,   Appellant      received   credit   for   the   entire   period   of   his

incarceration.   The trial court credited the period of incarceration from

August 18, 2015 through November 28, 2015 toward the sentence at Docket

No. CP-25-CR-0001351-2014, and the period of November 29, 2015 through



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January 4, 2016 toward the sentence in the instant matter.        As the trial

court explained,

      It is uncontroverted Appellant received credit at Docket Number
      1351 of 2014 for [the] time period [from August 18, 2015
      through November 28, 2015,] which allowed that sentence to
      max out. Appellant is not entitled to duplicate credit. Hence,
      Appellant is not entitled to credit from August 18, 2015 to
      November 28, 2015 in this case.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed March 30, 2016, p. 4 (footnote

and internal citation omitted). We agree with the Commonwealth and the

trial court that Appellant properly received all credit due.   Accordingly, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




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