Com. v. Abel, J. ( 2019 )

J-A30024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA CAIN ABEL, :
:
Appellant. : No. 283 WDA 2018
Appeal from the Judgment of Sentence, November 13, 2017,
in the Court of Common Pleas of Greene County,
Criminal Division at No(s): CP-30-CR-0000043-2017.
BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 20, 2019
Joshua Cain Abel appeals from the judgment of sentence imposed in
Greene County after entering guilty pleas to robbery, criminal attempt to
commit robbery, three counts of terroristic threats, three counts of simple
assault, and theft by unlawful taking.1 Abel requests the application of credit
for time served. After careful review, we vacate and remand with instructions.
The relevant facts and procedural history, as gleaned from the certified
record, are as follows. Following a series of robberies, spreading over three
Pennsylvania counties, authorities arrested Abel in West Virginia on February
4, 2016. Abel also faced criminal charges in West Virginia. On February 5,
2016, Trooper William Brown of the Pennsylvania State Police, charged Abel
with robbery and other related offenses committed at Gabler’s Drug Store
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1 18 Pa.C.S.A §§ 3701(a)(1)(ii), 901, 2706, 2701, and 3921.
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* Retired Senior Judge assigned to the Superior Court.
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located in Greene County, Pennsylvania. Although Abel was also facing
prosecutions for similar robberies in Westmoreland and Fayette Counties,
West Virginia held Abel on a Greene County detainer.
The West Virginia court imposed a “time served” sentence on the West
Virginia conviction on or about December 21, 2016, thereby making Abel
available to Pennsylvania pursuant to his waiver of extradition. 2 Abel was
brought to Pennsylvania on January 13, 2017. On June 5, 2017, the Fayette
County court accepted Abel’s guilty plea and sentenced him to two to four
years’ incarceration concurrent to his West Virginia sentence. Then, on August
3, 2017, the Westmoreland County court imposed a concurrent sentence of
two to four years’ incarceration, after Abel plead guilty to charges related to
another pharmacy robbery. The certified record does not establish that Abel
received any credit for time served as to any of his sentences.
Abel pled guilty to charges in the current case in Greene County on
August 25, 2017. The court ordered a pre-sentence investigation prior to
sentencing. The trial court then went over the applicable sentencing
guidelines and the pre-sentence report was admitted into evidence.3 The court
____________________________________________
2 As shall be shown infra, the certified record contains very little information
regarding the various sentences imposed on Abel. Abel relies upon his
reproduced record, while the Commonwealth relies upon information in the
pre-sentence report. The pre-sentence report is silent as to any time credit
Abel had previously received.
3 The District Attorney told the trial court that the person who “basically put
together all the essential information for the Court,” was not present, but
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then heard testimony from Abel and his mother, as well as counsel for Abel
and the Commonwealth. Ultimately, the trial court sentenced Abel to four to
eight years’ incarceration that were to run concurrent with any previously
imposed sentence, with credit for time served from December 21, 2016 to
June 5, 2017.
Abel filed a motion for reconsideration of sentence, which the trial court
denied following a hearing. Abel filed a timely pro se notice of appeal, and
the trial court subsequently appointed current counsel. Both Abel and the trial
court have complied with Pa.R.A.P. 1925.
Abel presents the following issues for our consideration:
Did the sentencing court err in failing to credit [Abel] for
all time committed for the offense for which he was charged,
including time awaiting extradition from out of state
and/or
Should the Superior Court remand the matter to the
sentencing court for findings and recalculation such that the
[sentencing court’s] calculation for time served may be
properly reviewed?
Abel’s Brief at 10. We will address these claims together.
A claim based upon the failure to credit time served is a challenge to the
legality of the sentence. Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.
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rather, a different member of the staff was present. Id. at 9. Defense counsel
also informed the trial court that Abel has been in custody continuously from
the date he was first arrested in West Virginia on February 4, 2016,
approximately twenty-one months.
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Super. 2014). Issues relating to the legality of a sentence are questions of
law, and as such, our standard of review is de novo and our scope of review
is plenary. Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa. Super.
2013).
Concerning credit for time served, the Pennsylvania Sentencing Code
provides in relevant part as follows:
§ 9760. Credit for time Served
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.
42 Pa.C.S.A. § 9760(1) and (4).
Generally, a defendant is entitled to receive full credit for time spent in
custody on a criminal charge. 42 Pa.C.S.A. § 9760(1). However, “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).
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Abel admits he received credit for the period between December 21,
2016, and June 5, 2017, but contends that “the record does not clearly reflect
how the [trial court] calculated the credit for time served[.]” Abel’s Brief at
14. According to Abel:
The trial court did not allow [Abel] credit from the time
of his arrest in February 2016 in West Virginia on an arrest
[warrant] prior to requisition and waiver of extradition
through the date of sentencing on November 11, 2017,
when [Abel] was sentenced concurrently to other sentences.
The Court without explanation allowed only credit for the
period December 21, 2016 to June 5, 2017. The matter
should be remanded to the trial court to credit [Abel] all
time from February, 2016.
Abel’s Brief at 17.
Our review of the record does not settle this discrepancy. The only
evidence of record regarding the issue of credit for time served is as follows:
[DISTRICT ATTORNEY]: So, I think -- I think from
the pre-sentence investigation, and from the impression
that was given to counsel, there was some indication that
he was still serving [the West Virginia] sentence. My
understanding is that there is no detainer [for] him. The
pre-sentence says he received a one to four-year term of
incarceration, but the Court is familiar with West Virginia’s
sentences - -
THE COURT: It’s odd compared to ours.
[DISTRICT ATTORNEY]: So, when he came here,
he did not come via interstate detainer, he basically waived
extradition and they gave him to us. So, I don’t have any
indication that he is still serving that sentence. So, the - -
and the reason why that’s important is because we don’t
believe he received credit for some of the time that he was
in Pennsylvania because Westmoreland County did not give
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him credit, and Fayette County did not give him credit,
because Greene County brought him back - -
THE COURT: Okay. I could see how that could
happen.
[DISTRICT ATTORNEY]: Okay. And then, he was
sentenced in Fayette and then he was sentenced in
Westmoreland, and they gave him credit for certain time,
but not for all the time.
THE COURT: Okay.
[DISTRICT ATTORNEY]: There’s a chunk of time
for which he did not receive credit, it appears, from
December 21, 2016 to June 5, 2017, which is when he was
sentenced in Fayette County at 101 of 2017.
THE COURT: Okay.
[DISTRICT ATTORNEY]: And, the Court will note
from the pre-sentence [report], he was sentenced in
Westmoreland County on August 3, 2017.
THE COURT: Okay.
[DISTRICT ATTORNEY]: So, on June 5th, Fayette
County gave him a two to four, and then, I guess it’s a
partially concurrent - -
THE COURT: June 5th - - and his plea here was
August, right?
[DISTRICT ATTORNEY]: His plea here was in
August.
THE COURT: Okay.
[DISTRICT ATTORNEY]: So, - -
THE COURT: June 5th - - okay. Go ahead.
[DISTRICT ATTORNEY]: June 5th they sentenced
him and then he was sentenced subsequently concurrent as
of August 3rd in Westmoreland. So, right now - -
THE COURT: Well, wait. What happened on June
5th then?
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[DISTRICT ATTORNEY]: June 5th he was sentenced
in Fayette County - -
THE COURT: Oh, Fayette?
[DISTRICT ATTORNEY]: - - two to four. And then,
August 3rd, sentenced concurrent as of that date, and
counsel can correct me if I’m incorrect, two to four. So, it’s
--
THE COURT: In Westmoreland?
[DISTRICT ATTORNEY]: - - yeah. So, it’s
overlapping, concurrent.
THE COURT: Okay.
[DISTRICT ATTORNEY]: So, - - but the only credit
- - the only credit for which he has not received credit, which
he is due by this Court today is for that period of time.
N.T., 11/13/17, at 3-6.
The District Attorney then discussed a small amount of restitution owed
by Abel. The trial court then attempted to calculate the appropriate amount
of credit to which Abel was entitled:
THE COURT: Okay. Just one second. May - - so,
- - like - -
[DISTRICT ATTORNEY]: Oh, you want the dates?
I mean - -
THE COURT: No. I’m just kind of - -
[DISTRICT ATTORNEY]: - - the numbers?
THE COURT: - - trying to - - so, it’s something like
five months, sixteen days?
[DEFENSE COUNSEL]: That sounds about right,
Your Honor.
***
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THE COURT: And, you said - - so, that’s two to
four from June 5th, and there’s a two to four from August
3rd, and - -
[DISTRICT ATTORNEY]: So, its partially
concurrent - -
THE COURT: - - West Virginia has that
indeterminate sentence, or however they do that.
[DISTRICT ATTORNEY]: Which - - my
understanding is, I don’t know that he’s being - - serving
that.
THE COURT: Yeah. Did you represent him in West
Virginia, by any chance?
[DEFENSE COUNSEL]: No, Your Honor. And, what
I--
THE COURT: Yeah, their sentencing scheme is
different.
[DEFENSE COUNSEL]: I’ve learned that the hard
way. What I think happened was, we were under the
impression because of this parole date versus discharge,
you could either, you know - - he could have either done
one or two, so we were under the impression that he was
trying to do two to four and be discharged at two - -
THE COURT: In West Virginia?
[DEFENSE COUNSEL]: Yeah. But, what it turns
out was that he actually was paroled at one. So, by the time
he finally was brought here - - and your County was the first
to bring him up here.
THE COURT: So, then - - so, that’s why there is
some - -
[DEFENSE COUNSEL]: Yes. And, the other
counties didn’t catch up to Greene County for several
months, and that time couldn’t have been taken anyways.
THE COURT: Okay.
N.T. 11/13/17, at 6-8.
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The Commonwealth contends that the trial court “properly gave credit
for time served that was not already credited toward another sentence.”
Commonwealth’s Brief at 6. The record neither supports nor refutes this
position, as it does not provide us with the information needed to verify
whether Abel received credit, on any previous sentence, for the time from
February 4, 2016 to June 16, 2016, and from June 5, 2017 to November 13,
2017. Thus, we cannot say with certainty whether Abel has been awarded
credit for all time served.
Accordingly, in the interest of caution, we remand for a hearing in order
to examine the award of credit for time served. Abel is not entitled to “double
credit” – a duplicate award of credit for time served at the multiple dockets.
Merigris, supra. Rather, we instruct the trial court to determine whether
Abel has been given credit for time served from February 4, 2016 to June 16,
2016, and from June 5, 2017 to November 13, 2017, at the West Virginia,
Fayette, Westmoreland, or Greene County dockets. If not, the trial court is
directed to award the unaccredited time to Abel’s Greene County sentence.
Judgment of sentence vacated. Remanded with instructions.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2019
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