Com. v. Duffield, C.

J-S49021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
COREY ALLEN DUFFIELD
Appellant No. 479 MDA 2018
Appeal from the Judgment of Sentence imposed February 2, 2018
In the Court of Common Pleas of Centre County
Criminal Division at No: CP-14-CR-0001458-2017
BEFORE: SHOGAN, STABILE, JJ., and STEVENS, P.J.E.*
JUDGMENT ORDER BY STABILE, J.: FILED NOVEMBER 30, 2018
Appellant, Corey Allen Duffield, appeals from the February 2, 2018
judgment of sentence imposing 90 days of incarceration for driving on a
suspended license1 followed by five years of intermediate punishment for
driving under the influence of a controlled substance2 (“DUI”). We vacate and
remand.
On August 29, 2017, Appellant was arrested in Centre County for the
instant offenses and detained for a violation of his parole on two Clinton
County DUI sentences. Appellant was incarcerated because he was unable to
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 1543 (this statute has been amended effective October 20,
2018).
2 75 Pa.C.S.A. § 3802(d).
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post bail. On January 29, 2108, his Clinton County parole was revoked.
Instantly, the trial court did not give Appellant credit for his pre-sentence
confinement. At the hearing on Appellant’s post-sentence motion, the Centre
County Specialty Court Coordinator testified that she believed the Clinton
County authorities adjusted the expiration date of Appellant’s maximum term
to account for the time he served on the detainer. N.T. Post-Sentence Motion,
2/20/18, at 7-8. As it is unclear from the record whether that occurred, the
trial court has requested a remand. Trial Court Opinion, 4/18/18, at 1-2.
A court’s failure to award credit for time served, in accord with 42
Pa.C.S.A. § 9760, implicates the legality of the sentence. Commonwealth
v. Clark, 885 A.2d 1030, 1032 (Pa Super. 2005). Our Supreme Court has
acknowledged that § 9760 does not address proper application of credit for
time served where the defendant is incarcerated for a new offense and
detained for a parole violation. Martin v. Pa. Bd. Of Prob. & Parole, 840
A.2d 229, 303-04 (Pa. 2003). In Gaito v. Pa. Bd. Of Prob. & Parole, 412
A.2d 568 (Pa. 1980), our Supreme Court held that, in such a case, the time
served should normally be applied to the sentence for the new offense. Id.
at 571. The Court also acknowledged in a footnote that time served can be
credited toward the prior offense if the defendant is acquitted or receives no
sentence for the new offense. Id. at 571 n.6. The Martin Court relied on
Gaito to hold that a defendant could receive credit for time served against his
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original sentence where he only received a 48-hour sentence for the new
offense. Martin, 840 A.2d 229. Gaito and Martin remain good law:
Gaito remains the general law in this Commonwealth
respecting how credit should be allocated for a convicted parole
violator wo receives a new sentence of incarceration, and the
exception to Gaito, set forth at footnote 6 and further developed
in Martin, is limited to cases in which a convicted parole violator
receives a term of incarceration for new charges that is shorter
than his pre-sentence confinement, such that the application of
the Gaito rule would result in excess incarceration.
Smith v. Pennsylvania Bd. Of Prob. & Parole, 171 A.3d 759, 768-69 (Pa.
2017).
The Commonwealth argues against remand, claiming Appellant is
attempting to receive time-served credit toward the instant sentence and the
Clinton County sentences. The Commonwealth correctly notes that this Court,
in Commonwealth v. Ellsworth, 97 A.3d 1255 (Pa. Super. 2014), held that
“duplicative imposition of credit for time served constitute[s] a patent and
obvious mistake” that is amenable to correction beyond the thirty-day period
specified in 42 Pa.C.S.A. § 5505. Id. at 1257.
In light of all of the foregoing, we vacate the judgment of sentence and
remand for a determination of whether Appellant has received proper credit
for time served in accord with all applicable law.
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J-S49021-18
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2018
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