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Commonwealth v. Johnson

February 26, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ERIC RICHARD JOHNSON, APPELLANT



Appeal from the Judgment of Sentence January 10, 2008, In the Court of Common Pleas of WASHINGTON County, CRIMINAL at No(s): CP-63-CR-0001735-2006.

The opinion of the court was delivered by: Freedberg, J.

BEFORE: BOWES, FREEDBERG, and FITZGERALD*fn1, JJ.

OPINION

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas for Washington County after a hearing in which Eric Richard Johnson ("Appellant") was found to be in violation of his probation. We vacate the sentence and remand to the trial court for resentencing in accordance with the reasoning set forth below.

¶ 2 The facts are not in dispute. On July 27, 2006, Appellant was charged with Possession of a Controlled Substance (two counts), Possession with Intent to Deliver a Controlled Substance (two counts) and Dealing in Proceeds of Unlawful Activities. After a preliminary hearing, all charges were held over for court. Subsequently, Appellant missed a scheduled court appearance. He was arrested on a bench warrant and incarcerated. Appellant did not post bail and, therefore, remained incarcerated until October 11, 2007. On that date, Appellant pleaded guilty to one felony count of Possession with Intent to Deliver a Controlled Substance. The trial court sentenced him to twenty-three months probation including participation in a drug treatment program. Appellant was released the following day.

¶ 3 On November 8, 2007, pursuant to a probation detainer, Appellant was incarcerated for missing curfew in violation of the terms of his drug treatment program. On January 10, 2008, the trial court revoked his probation and resentenced him to a period of incarceration of not less than fifteen months to no more than thirty months, to be served in a state correctional facility. After specific request by Appellant's counsel, the trial court refused to award any credit for time served.

¶ 4 The sole question Appellant raises on appeal*fn2 is whether the trial court erred or abused its discretion in denying Appellant's motion at resentencing for credit for time served for those periods of time he spent incarcerated prior to conviction, from June 21, 2007 to October 12, 2007, and pursuant to the probation detainer, from November 8, 2007 to January 9, 2008. We find that Appellant is entitled to credit for the time served.

¶ 5 "The review in an appeal from judgment of sentence which has been imposed following revocation of probation is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence." Commonwealth v. Beasley, 570 A.2d 1336, 1337 (Pa. Super. 1990) (internal quotations omitted), citing Commonwealth v. Gilmore, 348 A.2d 425, 427 (Pa. 1975). 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. Menezes, 871 A.2d 204, 207 (Pa. Super. 2005), citing Commonwealth v. Hollawell, 604 A.2d 723 (Pa. Super. 1992).

¶ 6 It is well established that there is no constitutional right to credit for time served prior to trial or sentence. Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 304 (Pa. 2004), citing Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979). Statutes which afford pre-sentence confinement credit are founded upon the recognition that "an indigent offender, unable to furnish bail, should serve no more and no less time in confinement than an otherwise identically situated offender who succeeds in furnishing bail." Martin, 840 A.2d at 304.*fn3

¶ 7 In Pennsylvania, our legislature has codified pre-sentence confinement credit in the following manner:

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.

(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.

(3) If the defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set ...


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