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COMMONWEALTH PENNSYLVANIA v. ROBERT MICHENFELDER (03/23/79)

SUPERIOR COURT OF PENNSYLVANIA


submitted: March 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT MICHENFELDER, APPELLANT

No. 1884 October Term, 1978, Appeal from Order of the Court of Common Pleas, Montogomery County, at No. 1846.B-77

COUNSEL

Ronald F. O'Driscoll, Assistant Public Defender, Norristown, for appellant.

James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Hoffman

[ 268 Pa. Super. Page 426]

Appellant contends that the sentence imposed by the lower court was excessive because he received no credit for time spent on parole in good standing ("street time"). We disagree and, accordingly, affirm the order reinstating appellant's sentence.

In September 1977, the lower court accepted appellant's guilty plea to charges of burglary, theft by unlawful taking, and criminal conspiracy and sentenced him to "time served" to 23 months imprisonment. On November 1, 1977, appellant was granted parole. While on parole, appellant was twice arrested and committed various other technical parole violations.*fn1 On May 24, 1978, the court revoked appellant's parole because of his arrests and other technical parole violations.*fn2 The court reinstated appellant's original 23 month sentence because his conduct indicated that he was not rehabilitated. On the record, the lower court denied appellant's specific request for street time credit.

The Board of Parole must give parolees credit for street time where parole is revoked as a result of merely technical violations. 61 P.S. § 331.21a(b). Persons sentenced to a maximum term of less than two years are expressly excluded from the jurisdiction of the Board of Parole. Id. at 331.17. In Commonwealth v. Broden, 258 Pa. Super. 408, 392 A.2d 858 (1978), we specifically rejected a claim that the courts must apply the mandatory provisions of 61 P.S. § 331.21a(b) to parolees not under the jurisdiction of the

[ 268 Pa. Super. Page 427]

Board of Parole. We held that a parolee not subject to the jurisdiction of the Board of Parole is not entitled to credit for street time, even where parole revocation resulted from technical violations.*fn3

Where no statutorily mandated sentence exists, Pennsylvania trial judges are vested with broad discretion in sentencing. This Court will not reverse a judgment of sentence unless an abuse of discretion is shown. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978). Thus, in order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be manifestly excessive. Commonwealth v. Wrona, 442 Pa. 201, 206, 275 A.2d 78, 80-81 (1971).

In the instant case, appellant is not statutorily entitled to credit for time spent on parole in good standing because he is not within the jurisdiction of the Board of Parole. Broden, supra. We must, therefore, look to whether there has been an abuse of discretion by the trial judge. Applying the standard of review articulated in Knight, supra, we find no abuse of discretion in this case. The reinstated 23 month sentence did not exceed the statutory maximum nor was it manifestly excessive in view of the trial judge's conclusion that appellant's two arrests while on parole indicated that he was not rehabilitated.

Order affirmed.


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