Com. v. Sampsell, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________
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.
J-S07012-16
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
____________________________________________
2
The certified record does not contain transcripts of the original sentencing
hearings or the subsequent revocation and resentencing hearings.
-2-
J-S07012-16
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,
____________________________________________
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.
-3-
J-S07012-16
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
-4-
J-S07012-16
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.
-5-
J-S07012-16
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
-6-
J-S07012-16
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
-7-
J-S07012-16
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
____________________________________________
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)
-8-
J-S07012-16
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.
-9-
J-S07012-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2016
- 10 -