Com. v. Eck, E.

J-S34018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC JAMES ECK :
:
Appellant : No. 1810 MDA 2019
Appeal from the Judgment of Sentence Entered July 19, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0002093-2013
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 22, 2020
Appellant, Eric James Eck, appeals nunc pro tunc from the judgment of
sentence of four to ten years’ incarceration, imposed after his previous
sentence of six years’ probation for his conviction of conspiracy to commit
criminal trespass was revoked, due to his being charged with new criminal
offenses. Herein, Appellant challenges the discretionary aspects and legality
of his sentence. After careful review, we affirm.
The trial court provided a brief summary of the facts of Appellant’s case,
as follows:
Appellant conspired with another individual to break into a
residence located at 426 Pearson Avenue in Loyalsock Township,
Lycoming County, Pennsylvania. On November 13, 2013[,] at
approximately 9:50 p.m., Appellant drove [his] co-conspirator to
the residence. The co-conspirator broke the glass in the back door
of the residence with a crow bar, unlocked the door, entered the
residence, and turned on his flashlight. The residence was
occupied by a 91-year[-]old woman[,] who was lying in a hospital
bed, breathing with the assistance of oxygen. Appellant and his
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co-conspirator were apprehended by members of the
Pennsylvania State Police, who were conducting surveillance due
to numerous burglaries that had occurred in the area in the
previous weeks.
Trial Court Opinion (TCO), 12/7/18, at 3.
Based on these facts,
Appellant was charged with conspiracy to commit burglary
of an occupied structure, a felony of the first degree, and
conspiracy to commit criminal trespass, a felony of the second
degree. On June 28, 2016, Appellant pled guilty to the charges;
however, his sentencing was deferred due to his cooperation in
the prosecution of his co-conspirator.
On September 13, 2017, the parties agreed to the
withdrawal and dismissal of Count 1, burglary. On Count 2,
conspiracy to commit trespass, Appellant was sentenced to six
years’ probation consecutive to a sentence of state incarceration
in a separate case that would have Appellant under parole
supervision into the year 2020.1
1 See CP-41-CR-0000909-2011.
On March 14, 2018, Appellant was before the court for a
preliminary probation violation (Gagnon I[1]) hearing[,] at which
the court found probable cause that Appellant violated the
conditions of his probation by absconding from supervision and by
committing two … new criminal [offenses that led to] charges [of]
… receiving stolen property and possession with intent to deliver
a controlled substance.
On July 19, 2018, the court held a final violation (Gagnon II)
hearing. The court found that Appellant violated his probation by
absconding from supervision and by committing [these] new
crimes. The court revoked Appellant’s probation and resentenced
Appellant to four to ten years’ incarceration in a state correctional
institution[,] consecutive to any and all sentences he was
presently serving.
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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TCO at 1-2. Notably, in the sentencing order, the court stated: “The defendant
is RRRI[2] eligible and the RRRI minimum is forty (40) months.” Sentencing
Order, 7/19/18, at 1. However, the very next sentence of the order declared,
“The defendant is not RRRI eligible.” Id.Appellant did not file a post-sentence motion. While he timely filed a
notice of appeal, that appeal was ultimately dismissed by this Court based on
Appellant’s failure to file a brief. Thereafter, Appellant filed a timely petition
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
seeking the restoration of his appeal rights. The PCRA court granted
Appellant’s petition on September 19, 2019, permitting him to file a nunc pro
tunc post-sentence motion and a direct appeal.
On September 26, 2019, Appellant filed a motion for modification of his
sentence. Therein, he challenged the discretionary aspects of his sentence,
claiming that “[t]he court failed to give meaningful consideration to the
sentencing factors, positive rehabilitative steps that [Appellant] had taken, or
additional incarceration that he had already received for the offenses [that]
constituted violations of probation.” Motion to Modify Sentence, 9/26/19, at
2. Appellant also challenged the inconsistency in the court’s sentencing order
regarding his eligibility for the RRRI program, and he also alleged that he was
entitled to credit for time served. See id.
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2 Recidivism Risk Reduction Incentive (RRRI) Act, 61 Pa.C.S. §§ 4501-4512.
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On October 17, 2019, the court conducted a hearing on Appellant’s post-
sentence motion. The following day, it issued an order and opinion denying
Appellant’s motion for modification of his sentence. That same day, the court
entered an amended sentencing order correcting the “patent and obvious
error in its July 19, 2018 sentencing order by striking the sentence, ‘The
defendant is RRRI eligible and the RRRI minimum is forty (40) months.’”
Amended Order, 10/18/19, at 1. The court explained that Appellant,
has received multiple[,] previous RRRI minimum sentences. The
Commonwealth has not approved a[n] RRRI minimum in this case,
and the court does not believe that a[n] RRRI minimum is
appropriate under the facts and circumstances of this case. See
61 Pa.C.S. § 4505(c)(3). Accordingly, [Appellant] is not eligible
for RRRI.
Id.
Appellant filed a nunc pro tunc notice of appeal on November 4, 2019.
He also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The court filed its Rule
1925(a) opinion on January 13, 2020. Herein, Appellant states three issues
for our review:
1. Did the sentencing court fail to give meaningful consideration
to the sentencing factors, positive rehabilitative steps taken by
Appellant, and additional incarceration he received for the same
conduct, thereby resulting in an excessive and unreasonable
sentence under the circumstances?
2. Did the [c]ourt err in holding that Appellant is not an eligible
offender for a[n] RRRI sentence under 61 Pa.C.S.[] § 4503 when
the Commonwealth never objected on the record to a[n] RRRI
sentence?
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3. Did the sentencing court err in denying [Appellant] credit for
time served?
Appellant’s Brief at 4.
In Appellant’s first issue, he claims that his sentence is unduly harsh
because the court failed to properly weigh certain mitigating circumstances in
his case, such as his cooperation in the prosecution of his co-conspirator and
his efforts at rehabilitation. This claim implicates the discretionary aspects of
Appellant’s sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
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to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In this case, Appellant filed a timely notice of appeal after his appellate
rights were reinstated, and he preserved his arguments in his nunc pro tunc
post-sentence motion.3 Additionally, Appellant has included a Rule 2119(f)
statement in his appellate brief, asserting that the court imposed a manifestly
excessive sentence because it did not consider the mitigating factors of his
cooperation and efforts at rehabilitation. “An allegation that the sentencing
court failed to consider certain mitigating factors generally does not … raise a
substantial question.” Moury, 992 A.2d at 171 (citations omitted).
Nevertheless, even if Appellant’s challenge did constitute a substantial
question for our review, we would deem it meritless.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
____________________________________________
3 The Commonwealth claims that Appellant failed to preserve his
discretionary-aspects-of-sentencing arguments in his post-sentence motion.
Based on the language of Appellant’s motion to modify his sentence, set forth
above, we disagree. Appellant sufficiently raised his claims in that motion
and, therefore, they are preserved for our review.
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In the court’s December 7, 2018 opinion, it provided a lengthy
discussion of its sentencing decision, which unequivocally demonstrates that
it considered the mitigating factors cited by Appellant. The court explained:
Appellant’s prior record score was a four and the offense
gravity score for conspiracy to commit criminal trespass also was
a four, which resulted in a standard[,] minimum guideline range
of 6-16 months and a mitigated guideline range of 3-6 months.
Despite the fact that Appellant committed this crime while he was
on supervision under the Intermediate Punishment Program for
conspiracy to commit forgery in case [CP-41-]CR-[0000]909-
2011, which could be considered an aggravating factor, the plea
agreement negotiated by the parties was accepted and Appellant
was sentenced to six years’ probation. The court noted that the
sentence was below the standard range[,] but it was negotiated
between the parties and was appropriate based on Appellant’s
total time of incarceration previously, his cooperation in the
prosecution of his co-conspirator, and the fact that Appellant
admitted himself into the Teen Challenge program.
Unfortunately, Appellant did not take advantage of this
lenient sentence. Appellant continued to use controlled
substances. Appellant asked to go to the Teen Challenge program
again, rather than be sentenced to incarceration in this case.
Appellant, however, had been sent to numerous rehabilitation
programs, but nothing worked; he kept using controlled
substances.
Appellant resumed using controlled substances shortly after
he was paroled from state prison on April 18, 2017. He tested
positive for heroin and cocaine in June 2017[,] and was sent to
Colonial House in York, Pennsylvania. In July 2017, he tested
positive for cocaine and was sent to outpatient rehabilitation. In
August 2017, he failed to attend Safe Haven Outpatient and again
tested positive for cocaine. Appellant was supposed to appear for
sentencing in this case on August 21, 2017, but he failed to appear
and a bench warrant was issued. On August 29, 2017, Appellant
admitted himself to Teen Challenge.
On September 13, 2017, Appellant was [originally]
sentenced in this case. On October 26, 2017, he was kicked out
of a recovery house. In November 2017, he failed to attend a
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Drug and Alcohol appointment. He was placed on a GPS unit and
continued in treatment. On December 15, 2017, a bench warrant
was issued because Appellant absconded from supervision.
Appellant also continued to commit crimes. On October 24,
2017, he received stolen property in York County, and he was
charged with that offense on November 6, 2017, see CP-67-CR-
[000]7826-2017. On January 3, 2018, he was arrested for
possession with intent to deliver a controlled substance in York
County, see CP-67-CR-0000532-2018.
Appellant’s counsel noted that Appellant assisted in the
prosecution of his co[-]conspirator and another individual, he
received a lot of certificates for programs that he completed in
state prison, he helped others in state prison, and he completed a
four month therapeutic program at Gaudenzia in 2015. The court
considered this information but found that such did not justify a
lesser sentence in this case.
Appellant cooperated in the prosecution of other individuals
to obtain the best deal possible for himself. He was credited with
his assistance when he received his original probationary
sentence. Appellant, however, failed to uphold his end of the
bargain when he failed or refused to abide by the conditions of his
supervision. Furthermore, his probation was not revoked for mere
technical violations, but rather for two new criminal convictions[,]
as well as absconding from supervision.
Appellant completed programs in state prison so that he
could be paroled. Apparently, he did not learn anything from
those programs or from his various drug rehabilitation programs
because soon after he was released, he went back to using
controlled substances. He also committed two new crimes within
the first four months after he was sentenced to probation in this
case. Despite certificates from prison programs and numerous
rehabilitation programs, nothing worked.
Appellant was not facing a lengthy period of incarceration
on his new charges[,] as they resulted in one to two years’ state
incarceration and a period of consecutive probation. Although he
was also facing a state parole revocation, he had not received his
“green sheet” indicating the length of his parole “set back.”
Moreover, Appellant was not entitled to a volume discount for his
crimes. This case was a separate incident which, given Appellant’s
abysmal supervision history during the time he was on probation,
deserved a separate and significant period of incarceration.
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The court considered everything that Appellant had done
and his rehabilitative needs, but resources are limited. Appellant
had numerous opportunities at rehabilitation, but nothing worked.
When Appellant decided to continue to commit crimes, he took the
risk that his actions would result in state incarceration. After all
the breaks and resources that Appellant ha[s] squandered, the
focus of the court was on the protection of the community. Every
previous time that Appellant was released to the community, he
fell back into a life of drugs and crime. Therefore, to protect the
public, the court imposed a sentence that would ensure that
Appellant would not be released into the community for a
significant period of time. See [N.T.] Sentencing…, [7/19/18,] at
21-24.
As the Pennsylvania Supreme Court noted in
Commonwealth v. Pasture[, 107 A.3d 21 (Pa. 2014)]:
[A] trial court does not necessarily abuse its discretion in
imposing a seemingly harsher post-revocation sentence
where the defendant received a lenient sentence and then
failed to adhere to the conditions imposed on him. In point
of fact, where the revocation sentence was adequately
considered and sufficiently explained on the record by the
revocation judge, in light of the judge’s experience with the
defendant and awareness of the circumstances of the
probation violation, under the appropriate deferential
standard of review, the sentence, if within the statutory
bounds, is peculiarly within the judge's discretion.
[Id. at] 28…. Appellant received a lenient sentence but quickly
failed to adhere to the conditions imposed on him. The court
reviewed the circumstances of the probation violations and
Appellant’s supervision history on the record. It considered the
information provided, and arguments made by, Appellant’s
counsel; it simply did not accord them much weight. It was not
an abuse of discretion to do so.
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will…. An abuse of discretion
may not be found merely because an appellate court might
have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or
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such lack of support so as to be clearly erroneous…. The
rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to determine
the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it.
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011)
(quoting Commonwealth v. Walls, … 926 A.2d 957, 961 ([Pa.]
2007)(internal citations omitted)). The court based its decision
on the particular circumstances of this case and not on any
partiality, prejudice, bias, or ill-will against Appellant.
Finally, “[t]he sentencing court’s institutional advantage is,
perhaps, more pronounced in fashioning a sentence following the
revocation of probation, which is qualitatively different than an
initial sentencing proceeding…. [I]t is a different matter when a
defendant reappears before the court for sentencing proceedings
following a violation of the mercy bestowed upon him in the form
of a probationary sentence.” Commonwealth v. Derry, 150
A.3d 987, 992 (Pa. Super. 2016) (quoting Pasture, 107 A.3d at
27). A[t a] VOP sentencing hearing[,] additional factors and
concerns are at issue. Those include the defendant’s time spent
on probation and whether the sentence imposed is essential to
vindicate the authority of the court, or the defendant’s conduct
indicates that it is likely that he will commit another crime if he is
not imprisoned, or if the defendant was convicted of another
crime. 42 Pa.C.S. § 9771(c); Derry, 150 A.3d at 994. The court
considered all of these factors in imposing its sentence.
TCO at 3-7.
The court’s comprehensive discussion convinces us that it considered
the mitigating factors now raised by Appellant. The court did not abuse its
discretion by giving those factors little weight, given Appellant’s history of
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drug use and criminal activity, and his squandering the multiple rehabilitative
opportunities provided to him. Thus, Appellant’s first issue is meritless.4
Next, Appellant avers that the court erred by deeming him ineligible for
the RRRI program.
A challenge to a court’s failure to impose an RRRI sentence
implicates the legality of the sentence. Commonwealth v.
Tobin, 89 A.3d 663, 670 (Pa. Super. 2014). “It is legal error to
fail to impose a[n] RRRI minimum on an eligible offender.” Id.Thus, as “statutory interpretation implicates a question of law, our
scope of review is plenary and our standard of review is de novo.”
Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa. Super. 2012)
(citation omitted).
Commonwealth v. Finnecy, 135 A.3d 1028, 1033 (Pa. Super. 2016).
At the sentencing hearing in this case, there was no discussion of
Appellant’s RRRI eligibility until the very end of the proceeding, when defense
counsel simply stated, “Judge, one last thing, he is RRRI eligible.” N.T.
Sentencing, 7/19/18, at 24. Immediately thereafter, the proceeding
concluded and, as discussed supra, the court’s written sentencing order
inconsistently stated that Appellant was not RRRI eligible, yet also imposed
an RRRI minimum sentence. At the hearing on Appellant’s post-sentence
motion challenging that inconsistency, the court indicated that it was not
applying an RRRI minimum sentence because Appellant was not an eligible
____________________________________________
4 We note that Appellant briefly asserts that the court erred by imposing his
sentence in this case to run consecutively to any other term of incarceration
that he is serving in unrelated cases. See Appellant’s Brief at 12. Appellant
did not state this claim in his Rule 2119(f) statement, thus failing to establish
that it constitutes a substantial question for our review. In any event, we
would discern no merit to this claim for the reasons set forth by the court in
the above-quoted portion of its opinion.
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offender based on his prior conviction for accidents involving death or personal
injury while not properly licensed under 75 Pa.C.S. § 3742.1. See N.T.
Hearing, 10/17/19, at 5.
However, in the court’s subsequent written order and opinion denying
Appellant’s post-sentence motion, it acknowledged that Appellant’s prior
conviction under section 3742.1 was not a delineated offense rendering him
ineligible for the RRRI program. Specifically, the court explained:
To be entitled to a[n RRRI] … minimum, a defendant must
meet the definition of an “eligible offender” which includes the
requirement that the defendant or inmate has not been found
guilty of or previously convicted of or adjudicated delinquent for
or an attempt or conspiracy to commit a personal injury crime as
defined in 18 P[a.C].S. § 11.103. 61 Pa.C.S.[] § 4503. A
“personal injury crime” includes any “act, attempt or threat to
commit an act which would constitute a misdemeanor or felony
under the following: 75 Pa.C.S. § 3742 (relating to accidents
involving death or personal injury). 18 P[a.C].S. § 11.103. On or
about March 17, 2000, [Appellant] was convicted of … accidents
involving death or personal injury while not properly licensed in
violation of 75 Pa.C.S. § 3742.1. See CP-41-CR-000[]1828-
1999.3 Despite the fact that a violation of section 3742.1 involves
death or personal injury, it is not listed as a “personal injury crime”
in 18 P[a.C].S. § 11.103.
3 The docket sheet incorrectly lists this offense as a violation
of 75 Pa.C.S. § 3742. However, both the [i]nformation and
the criminal complaint list this offense as a violation of 75
Pa.C.S. § 3742.1.
Trial Court Opinion, 10/18/19, at 1-2.
Nevertheless, the court decided not to impose an RRRI term under the
discretion afforded by section 4505(c)(3). See id. at 2. That provision states:
(c) Recidivism risk reduction incentive minimum
sentence.--If the court determines that the defendant is an
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eligible offender or the prosecuting attorney has waived the
eligibility requirements under subsection (b), the court shall
provide notice of eligibility to the defendant and enter a
sentencing order that does all of the following:
***
(3) Notwithstanding paragraph (2) [(pertaining to the
imposition and calculation of an RRRI minimum for an
eligible defendant)], if the defendant was previously
sentenced to two or more recidivism risk reduction incentive
minimum sentences, the court may, in its discretion, with
the approval of the prosecuting attorney, impose the
recidivism risk reduction incentive minimum sentence as
provided for in paragraph (2).
61 Pa.C.S. § 4505(c)(3).
Here, the court found — and Appellant does not dispute — that he was
previously sentenced to two or more RRRI minimum terms. See Trial Court
Opinion, 10/18/19, at 2. Thus, the trial court discerned that, under section
4505(c)(3), it had the discretion to impose, or refuse to impose, an RRRI
minimum sentence in the present case. If it did deem Appellant RRRI eligible,
the Commonwealth would be required to approve that decision. The court
ultimately decided not to apply an RRRI minimum, concluding that the “facts
and circumstances” of Appellant’s case did not warrant that sentence. Id.
The court also observed that the Commonwealth had not approved the
imposition of an RRRI sentence. Id.
On appeal, Appellant does not challenge the court’s interpretation or
application of section 4505(c)(3). Instead, the main thrust of his argument is
that the Commonwealth essentially approved the imposition of an RRRI
minimum sentence because it did not object to the same. See Appellant’s
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Brief at 13. However, we agree with the Commonwealth that “no approval of
the Commonwealth was necessary[,]” as the court “chose not to make …
Appellant [RRRI] eligible.” Commonwealth’s Brief at 12.
In regard to whether the court abused its discretion by declining to
impose an RRRI minimum term, Appellant provides only the following, single
sentence challenge: “Given the overall length of the sentence, [Appellant’s]
history of completing programming within the correctional facility, and his
need for substance abuse treatment, it was error to deny him placement in
the RRRI program.” Appellant’s Brief at 13. Appellant’s cursory argument,
which is not supported by any legal authority, fails to demonstrate an abuse
of discretion by the trial court. As the court made clear in its lengthy
discussion of its sentencing decision, supra, Appellant has been given multiple
opportunities to rehabilitate his drug addiction issues, yet he has continuously
returned to a life of crime and drug use when not incarcerated. Thus, the
court determined that a lengthy sentence, with no RRRI eligibility, was
warranted. We discern no abuse of discretion in the court’s decision.
In Appellant’s final issue, he contends that the court did not give him
appropriate credit for time served. “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. Johnson, 967 A.2d 1001, 1003 (Pa. Super.
2009) (citations omitted).
Appellant’s entire argument in support of his time-credit claim is as
follows:
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In this case, the time that Appellant … is seeking credit for
[was] time served from November 15, 2013, through April 21[],
2014. He was incarcerated in lieu of bail in this case, but
ultimately received a sentence of probation, so that time was not
credited to this matter. The court declined to provide such credit,
a violation of the sentencing code[, 42 Pa.C.S. § 9760(1).5].
Furthermore, the court abused its discretion by refusing to
grant credit for time spent since the date of the probation violation
sentencing in this matter. While [Appellant] is serving a sentence
for an offense in another county, that sentence was the primary
reason he faced a probation violation in this case, and the
consecutive service of these sentences led to an excessively harsh
result[,] as discussed above. The grant of credit for time served
since the time of resentencing would temper the unduly harsh
impact of consecutive sentences for the offense and the probation
violation resulting therefrom.
Appellant’s Brief at 14.
In rejecting Appellant’s time-credit argument, the trial court explained:
When [Appellant’s] Intermediate Punishment sentence was
revoked on February 12, 2015[,] under docket number CP-41-CR-
0000909-2011, [Appellant] received credit for November 15,
2013 to April 21, 2014, along with several other times periods. A
copy of the order is attached to this Opinion as Exhibit 1.
[Appellant] is not entitled to duplicate credit. Commonwealth v.
Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014);
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5 That provision states:
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 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).
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Commonwealth v. Merigris, … 681 A.2d 194, 195 ([Pa. Super.]
1996).
As a result of convictions in York County,2 [Appellant’s]
parole in case CP-41-CR-0000909-2011 was revoked and he was
ordered to serve a total of 2 years of back time. See N.T.
[Sentencing] … at 5-6. Additionally, on April 11, 2018, [Appellant]
was sentenced to serve one to two years’ incarceration in a state
correctional institution for a drug offense in York County. See CP-
67-CR-0000532-2018. The sentence imposed on July 19, 2018[,]
in [Appellant’s] current case (CR-2093-2013) was ordered to be
served consecutively to any sentence [Appellant] was presently
serving. As a result, [Appellant] is not entitled to any credit in
this case and he cannot begin to serve the sentence in this case
until after he serves his parole back time and at least his minimum
sentence for his York County case.
2 See CP-67-CR-0000532-2018 and CP-67-CR-0007826-
2017.
Trial Court Opinion, 10/18/19, at 2-3.
The record supports the court’s decision that Appellant was given credit
for time served from November 15, 2013, to April 21, 2014, in the case
docketed at CP-41-CR-0000909-2011. See id. at Exhibit 1. Additionally, we
reject Appellant’s argument that, to balance out the ‘unduly harsh’ sentence
imposed in this case, he should be afforded double credit for the time he
served on his new criminal charges that resulted in the present probation
revocation and resentencing.
This Court has held that a defendant is not entitled to “receiv[e]
credit against more than one sentence for the same time served.”
… Merigris, … 681 A.2d [at] 195…. We have acknowledged that
such “double credit” is prohibited both by the statutory language
of Section 9760 and by the principle that a defendant be given
credit only for “time spent in custody ... for a particular offense.”
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Ellsworth, 97 A.3d at 1257. Accordingly, Appellant’s third issue does not
warrant relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2020
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