J-S07012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KARL R. SAMPSELL,

                            Appellant                 No. 980 MDA 2015


                Appeal from the Order Entered February 5, 2015
                 In the Court of Common Pleas of Union County
                           Criminal Division at No(s):
                           CP-60-CR-0000166-2010
                           CP-60-CR-0000178-2009


BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 19, 2016

       Karl R. Sampsell appeals from the order denying his petition for credit

for time served following the trial court’s imposition of a new sentence after

it revoked his probation.1 We vacate the order below and remand for further

proceedings in accordance with this memorandum.

       Appellant initially pled guilty at No. 178-2009 to one count of

possession with intent to deliver ("PWID") and one count of criminal use of a
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1
   Although not addressed by the parties or the trial court, Appellant's
petition was in the nature of a timely petition filed under the Post-Conviction
Relief Act, 42 Pa.C.S.. §§ 9541-9546, as it raised an issue cognizable under
the PCRA and was filed within one year after judgment of sentence became
final. See Commonwealth v. Davis, 852 A.2d 392, 399 (Pa.Super. 2004).

*
    Former Justice specially assigned to the Superior Court.
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communication facility. He was sentenced on October 12, 2010, to eleven

and one-half months to twenty-three months imprisonment followed by

three years probation on the PWID count.         On the other count, he was

sentenced to five years probation to run concurrently to the sentence

imposed at the first count.

       On September 15, 2011, Appellant pled guilty at No. 166-2010 to one

count of PWID and was sentenced to six to twelve months incarceration, to

run concurrently with the sentence at No. 178-2009, and a five-year period

of probation to run consecutively to imprisonment and probation at that

number. Thus, in effect, Appellant began serving an aggregate sentence of

incarceration on October 12, 2010.

       On March 24, 2014, while on probation, Appellant was charged with

PWID, possession of a controlled substance, and possession of drug

paraphernalia.      The Commonwealth filed a motion to revoke Appellant’s

probation at both numbers on March 31, 2014. Following a hearing on May

16, 2014, the court revoked Appellant’s probation and resentenced him at

No. 178-2009 to one to two years imprisonment on the communications

facility count and a consecutive term of one to three years incarceration on

the PWID count.2 At No. 166-2010, Appellant was resentenced to two and

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2
 The certified record does not contain transcripts of the original sentencing
hearings or the subsequent revocation and resentencing hearings.



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one-half to five years incarceration, to be served consecutive to the

sentences imposed at No. 178-2009.               Thus, Appellant’s new aggregate

sentence was four and one-half years to ten years incarceration. The court

then stated that Appellant would receive a Recidivism, Risk, Reduction,

Incentive (“RRRI”) sentence of forty-five months and twenty-five days, with

a credit for time served of fifty-three days from March 24, 2014 to May 16,

2014.

        On May 30, 2014, Appellant filed a motion to modify his sentence to

state intermediate punishment, which the court denied. Upon subsequently

learning that its RRRI calculation was incorrect, however, the court issued a

June 25, 2014 order amending the sentence to forty-five months with the

same credit for time served.3

        On October 23, 2014, Appellant filed the pro se petition for credit for

time spent in custody that is the subject of the within appeal, alleging that

he was entitled to 598 days of credit for time served in prison on the

aforementioned sentences. Counsel was appointed. On January 20, 2015,

the court issued a rule upon the Commonwealth to respond to the petition,


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3
  Even after the thirty-day period for a post-sentence motion has expired,
the trial court has the inherent power to modify a sentence and correct
patent or obvious mistakes such as credit for time served.            See
Commonwealth v. Martz, 926 A.2d 514 (Pa.Super. 2007); 42 Pa.C.S. §
5505.



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which it did. Following a hearing on February 5, 2015, the court dismissed

the petition.

        Appellant timely appealed and complied with the court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

court issued its Rule 1925(a) opinion and the matter is ripe for our review.

Appellant presents one issue: “Whether the Lower Court abused its

discretion and failed to give proper credit for time served.” Appellant’s brief

at 7.

        The within petition was filed almost four months after the trial court

modified Appellant’s sentence and that sentence became final. Although the

trial court did not expressly state that it was treating the petition as a first

PCRA      petition,   it   appointed   counsel   and   held     a   hearing.   See

Commonwealth v. Fowler, 930 A.2d 586, 590 (Pa.Super. 2007) (treating

motion for time credit as petition for PCRA relief).          Since the PCRA is the

only method for obtaining collateral review where an issue is cognizable

under that Act, this petition will be treated as a first PCRA petition.        See

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002)

(concluding the appellant's motion to vacate sentence qualified as a PCRA

petition).

        Our standard of review of a trial court's denial of PCRA relief is
        limited to determining whether the order is supported by the
        record evidence and is free of legal error. Commonwealth v.
        Liebensperger, 2006 PA Super 178, 904 A.2d 40, 44 (Pa.Super.
        2006); Commonwealth v. Yakell, 2005 PA Super 209, 876

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     A.2d 1040, 1042 (Pa.Super. 2005). Our scope of review is limited
     to the PCRA court's factual findings and the evidence of record.
     Commonwealth v. Duffey, 585 Pa. 493, 502, 889 A.2d 56, 61
     (2005). We grant great deference to the PCRA court and will not
     disturb  findings    supported     by   the   certified  record.
     Commonwealth v. Sampson, 2006 PA Super 119, 900 A.2d
     887, 890 (Pa.Super. 2006), appeal denied, 589 Pa. 720, 907
     A.2d 1102 (2006).

Bowser, at 590. The alleged failure to award credit for time served prior to

revocation of probation and resentencing presents a legality of sentence

question subject to plenary review. Commonwealth v. Menezes, 871 A.2d

204 (Pa.Super. 2005).

      Appellant alleges that he was entitled to credit under 42 Pa.C.S. §

9760 for 598 days he spent in prison at Nos. 178-2009 and 166-2010. He

breaks down the dates as follows:

      4/20/09 – 4/21/09 = 1 day
      4/9/10 - 5/10/10 = 31 days
      10/12/10 – 2/15/12 = 492 days
      3/24/14 -6/5/14 = 74 days

Petition for time Spent in Custody, 10/21/14, at 4. He acknowledges that he

received thirty-one days of credit at No. 166-2010 and fifty-four days of

credit from March 24, 2014 to May 16, 2014, at the revocation sentencing.

In essence, he is seeking one day of credit for April 20, 2009, the 492 days

he spent incarcerated on the original sentences, and twenty-one days he

served in the county from May 16, 2014 to June 5, 2014, prior to being

accepted at a state facility.




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      The Commonwealth counters that under Bowser, supra, Appellant

already received credit for the 492-day period of incarceration from October

12, 2010 through February 15, 2012, when he was paroled. The Bowser

Court reasoned that credit was given when the defendant therein was

paroled and did not have to serve the remaining portion of his incarceration.

Credit having been given once, the Bowser Court concluded there was no

reason to award duplicate credit in the second component of the sentence,

i.e., probation.

      We agree with the Commonwealth that no credit is due against

Appellant’s original sentence. When a defendant’s probation is revoked, “the

sentencing alternatives available to the court shall be the same as were

available at the time of initial sentencing, due consideration being given to

the time spent serving the probation.         42 Pa.C.S. § 9771(b); see

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super. 2013) (upon

revocation of probation, the sentencing court is limited only by the

maximum sentence it could have imposed at the time of the original

sentence).    When a split sentence is originally imposed, the term of

imprisonment together with the probationary period cannot exceed the

statutory maximum.      However, when probation is revoked on a split

sentence, the probationary time served is not considered for purposes of

calculating whether the statutory maximum is exceeded.         42 Pa.C.S. §

9771(b); Commonwealth v. Crump, 995 A.2d 1280 (Pa.Super. 2010). At

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re-sentencing, the trial court need only give due consideration to the time

spent on probation, but need not credit any probationary time.          Id.

Bowser, Crump, and Infante make it clear that a defendant is entitled to

time served following revocation of probation only if the total sentences

imposed exceed the statutory maximum.

     Appellant’s new sentence, added to his original sentence, does not

exceed the statutory maximum that could have been imposed originally. At

No. 178-2009, Appellant was sentenced to eleven and one-half months to

twenty-three months imprisonment followed by three years probation for

PWID, which carries a maximum sentence of ten years.        35 P.S. § 780-

113(a)(30).   Upon revocation, he was sentenced to one to three years

incarceration on that count.   That aggregate sentence did not exceed the

statutory maximum.     On the third-degree felony communications count,

Appellant was originally sentenced to five years probation. Upon revocation,

he was sentenced to 1-2 years imprisonment on that charge.       Again, the

combined sentence did not exceed the statutory maximum of seven years

for the third-degree felony. The revocation sentence of two and one-half to

five years incarceration imposed at No. 166-2010, together with the original

sentence of six to twelve months imprisonment, an aggregate sentence of

three to six years imprisonment, did not exceed the ten year statutory

maximum for PWID.      Since the total sentences imposed herein did not

exceed the statutory maximum sentences, Appellant is not entitled to a

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credit for 492 days of time served on the original sentence.                Cf.

Commonwealth v. Williams, 662 A.2d 658 (Pa.Super. 1995) (where the

defendant had already served time and then was sentenced after revocation

of probation to the lawful maximum, he should have been awarded credit for

original time served).

        Appellant already received thirty-one days credit for April 20, 2010 to

May 10, 2010.       Of the seventy-four days he seeks, fifty–three days were

credited in the May 16, 2014 sentencing order. The Commonwealth has no

objection to awarding Appellant credit for the twenty-one days he spent in

the county jail before he was accepted into a state facility.    However, the

sentencing court declined to award credit for that time, finding that this

twenty-one day period would be applied by the Department of Corrections

towards Appellant’s parole eligibility date.

        Title 42 Pa.C.S. § 9760, governing credit for time served, does not

address time spent in custody after imposition of sentence.4 We agree with

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4
    42 Pa.C.S. § 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
(Footnote Continued Next Page)


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the trial court that the Department of Corrections should credit Appellant’s

twenty-one days from May 17, 2014 to June 5, 2014 in calculating his parole

date.     Remaining is whether Appellant is entitled to one day of credit for

April 20, 2009 to April 21, 2009, when he was in custody awaiting bail on

the initial charges at No. 178-2009.             The trial court did not address the

issue.    Since it appears that Appellant never previously received credit for

this time spent in custody awaiting bail, we vacate the order and remand for

the PCRA court to enter an order crediting Appellant with one day of time

served.

         Order vacated.     Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

         Judge Fitzgerald Joins the Majority

         Judge Ott Concurs in the Result.




                       _______________________
(Footnote Continued)

               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.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2016




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