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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

Appe||ee
v.

JACOB JAMES TARR

 

Appe||ant No. 151 WDA 2016

Appeal from the Judgment of Sentence dated November 19, 2015
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-OOOO454-2015

CP-42-CR-OOOO455-2015

BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 08, 2016

Appe||ant Jacob James Tarr appeals from the judgment of sentence
entered November 19, 2015, in the Court of Common Pleas of McKean
County. Appe||ant argues that the trial court erred in denying him credit for
time served (95 days) toward his sentence. We vacate and remand.

In July 2015, while on state parole for prior offenses, Appe||ant was
charged with, among other things,1 unauthorized use of an automobile2 (CP-

42-0000454-2015) and furnishing liquor to minors3 (CP-42-CR-OOO455-

 

* Retired Senior Judge assigned to the Superior Court.

1 The other charges were later dismissed.

2 18 Pa.c.s. § 3928.

3 18 Pa.c.s. § 6310.1.

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2015). In connection with CP-42-OOOO454-2015, Appe||ant was incarcerated
on July 16, 2015, and bail was set at $20,000. In connection with CP-42-
CR-OOO455-2015, bail was set at $2,000 on July 23, 2015. Appe||ant was
unable to post bail in either case.

On November 19, 2015, the trial court imposed an aggregate sentence
of 9 to 24 months of incarceration for these offenses, with no credit for time
served. At the sentencing hearing, the court explained that the time
Appe||ant was incarcerated between his arrest on July 16, 2015, and
November 19, 2015, would not be credited toward his new sentence
“because all the time that he has incurred so far . . . goes towards any State
Parole Detainer” associated with his prior offenses. N.T. 11/19/15, at 9.
The trial court concluded that Appe||ant's failure to post bail for his current
offenses did not affect the allocation of credit for time served. Id. at 10. On
November 30, 2015, Appe||ant filed a motion to reconsider/modify sentence,
which the trial court denied on December 28, 2015.

Appe||ant filed a timely appeal, in which he raises the following issue:

Whether the trial court misapplied the law in failing to give the
Defendant credit for time served awaiting disposition on new
charges toward his new sentence?

Appe||ant's Brief at 2. In a Rule 1925(a) opinion, the trial court reiterated
the same reasons for not crediting time served as it stated at the sentencing
hearing. See Trial Court Opinion, 5/2/16, at 1.

“A challenge to the trial court's failure to award credit for time served

prior to sentencing involves the legality of a sentence." Commonwealth v.

_2_

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Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). Thus, our review is
plenary and de novo. See Commonwealth v. Lomax, 8 A.3d 1264, 1267
(Pa. Super. 2010).

The relevant portion of the Sentencing Code provides:

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).

In Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008), this
Court addressed the manner in which credit for time served is to be
apportioned where a defendant is awaiting trial for new charges while
simultaneously awaiting disposition of an alleged parole/probation violation

associated with previous offenses:

[A]ll time served by a parole violator while awaiting disposition
on new charges must be credited to the original sentence if he or
she remains in custody solely on a Board detainer. If the
defendant is incarcerated prior to disposition, and has
both a detainer and has failed for any reason to satisfy
bai|, the credit must be applied to the new sentence by
the sentencing court. In this circumstance, the credit must be
applied by the trial court as a sentencing condition, as the Board
and the Commonwealth Court have no jurisdiction to alter
sentencing conditions on later review. If the new sentence is
shorter than the time served, the balance can be applied to the
original sentence, but the sentencing court must specify “time
served" in the sentencing order for the new offense, so that the
Board will be able to apply the credit.

Mann, 957 A.2d at 751 (emphasis added) (internal citations omitted).

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Appe||ant argues that, under Mann, the trial court was required to
apply the credit for the time he was incarcerated, due to both a state parole
detainer and his inability to post bail on his new offenses, to his new
sentence. We agree. The above-quoted language from Mann clearly
requires this result.4

In declining to apply credit for time served to Appe||ant's new
sentence, the trial court relied on the following language from an earlier
portion of the Mann opinion: “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." Trial Court Opinion, 5/2/16, at 1 (quoting Mann, 957
A.2d at 749). This sentence states the general requirement of the
Sentencing Code that credit must be given for time spent in confinement by
applying it to either the original sentence or the new sentence, but it does
not address which of the two sentences is to be credited. We answered that
question in the later passage of the Mann opinion, where, after extensively
reviewing the case law, we held that when, as here, the defendant is both

incarcerated on a parole detainer and incarcerated on new charges because

 

4 The Commonwealth did not file a brief in this case. By a letter dated

July 19, 2016, the Commonwealth explained: “After review of Appe||ant's
brief and the issue appealed, the Commonwealth does not oppose the
appeal. Based on a review of the relevant case law, the Commonwealth
agrees that the case should be remanded for resentencing."

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of an inability to make bail, the credit for time served prior to the disposition
of the new offenses must be applied to the new sentence by the sentencing
court. See Mann, 957 A.2d at 751.

Accordingly, we vacate the judgment of sentence and remand with the
instruction that the sentencing court is to apply credit for the 95 days
Appe||ant was in custody between his arrest on the new charges and his
sentencing for those offenses to the balance of Appe||ant's new sentence.

Judgment of sentence vacated. Remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

