Appeal from the Order of September 1, 2011 In the Court of Common Pleas of Columbia/Montour County Criminal Division at No(s): CP-47-CR-0000205-2003
The opinion of the court was delivered by: Stevens, P.J.
BEFORE: STEVENS, P.J., PANELLA, J., and MUNDY, J.
The Commonwealth appeals the Order entered in the Court of Common Pleas of Columbia/Montour County, which gave Appellee Dereck Martz credit for January 21, 2010 to August 12, 2011, when he was at liberty due to a clerical error.*fn1 For the reasons discussed infra, we conclude the trial court erred in awarding credit for the time Appellee was erroneously at liberty. Thus, we vacate the trial court's sentencing order as it relates to credit for "time served" and remand with specific instructions. In all other respects, we affirm.
The relevant facts and procedural history are as follows: On June 22, 2005, a jury convicted Appellee on one count of indecent assault, 18 Pa.C.S.A. § 3126(a)(7), and one count of corruption of minors, 18 Pa.C.S.A. § 6301(a)(1), in connection with his sexual assault of an eleven-year-old girl. On February 22, 2006, the trial court sentenced Appellee to one year to four years in prison for indecent assault, and one year to four years in prison for corruption of minors, the sentences to run consecutively. Thus, Appellee's aggregate sentence was two years to eight years in prison. Additionally, the trial court found Appellee to be a sexually violent predator for Pennsylvania's Megan's Law III*fn2 purposes.
On August 10, 2006, the trial court filed an amended sentencing order indicating Appellee's sentences were to run concurrently, resulting in a reduced aggregate sentence of one year to four years in prison. On direct appeal, this Court affirmed Appellee's conviction but held the trial court erred when it filed its amended sentencing order reducing Appellee's sentence. Commonwealth v. Martz, 926 A.2d 514 (Pa.Super. 2007). Therefore, on June 25, 2007, upon remand, the trial court reinstated
Appellee's original sentence in which Appellee was to serve his sentences consecutively, thus resulting in an aggregate of two years to eight years in prison. However, after the trial court reinstated Appellee's original sentence, for unknown reasons, the Montour County Clerk of Courts failed to transmit the June 25, 2007 sentencing order to the Pennsylvania Department of Corrections (the DOC).
On January 18, 2008, Appellee filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. However, during the pendency of his petition, unaware Appellee's sentences were to run consecutively, the DOC released Appellee from custody on January 21, 2010, at the end of his maximum four-year "concurrent" sentence. That is, Appellee was not placed on parole; but rather, he was released from prison after he "maxed out" his August 10, 2006 sentence, which imposed concurrent sentences, as opposed to his reinstated June 25, 2007 sentence, which imposed consecutive sentences.
Believing Appellee was no longer eligible for relief since he was not "currently serving a sentence of imprisonment, probation, or parole for the crime," 42 Pa.C.S.A. § 9543(a)(1)(i), the Commonwealth moved to dismiss Appellee's PCRA petition. On June 22, 2010, the PCRA court granted the Commonwealth's motion, thereby dismissing Appellee's PCRA petition without reaching the merits thereof. On July 12, 2010, Appellee filed a notice of appeal to this Court.
Subsequently, on August 11, 2011, the Commonwealth discovered the Clerk of Courts had failed to send the June 25, 2007 re-sentencing order to the DOC, and therefore, Appellee had been mistakenly released from prison before the completion of his sentence. As a result, the Commonwealth applied for a bench warrant, and, on August 12, 2011, Appellee was detained. On September 1, 2011, following a hearing,*fn3 the trial court recommitted Appellee to serve the remainder of his sentence under the terms of the June 25, 2007 re-sentencing order. However, the trial court gave Appellee credit for "time served" from January 21, 2010, when he was mistakenly released from prison due to an apparent clerical error, until September 1, 2011, when he was recommitted to serve the remainder of his sentence.*fn4 The Commonwealth filed a notice of appeal to this Court, arguing in its timely-filed court-ordered Pa.R.A.P. 1925(b) statement that the trial court imposed an illegal sentence on September 1, 2011, when it gave Appellee credit for "time served" while he was at liberty.*fn5 In its Pa.R.A.P. 1925(a) opinion, in responding to the Commonwealth's issue, the trial court explained, in relevant part, the following:
In reviewing a series of cases, the [Pennsylvania]
Commonwealth Court said that "[t]hese cases indicate that a prisoner has the right to serve a sentence continuously rather than in installments, but a continuous sentence may be interrupted by some fault of the prisoner....The principle is applicable where prison authorities erroneously release a prisoner from prison and then deny the prisoner credit for the time spent outside of prison." Forbes v. Pennsylvania Department of Corrections, 931 A.2d 88, 93 (Pa.Cmwlth. 2007)[, affirmed, 596 Pa. 492, 946 A.2d 103 (2008) (per curiam)] (citations omitted). In this case, the prisoner was erroneously released due to no fault of his own, but due to a systemic clerical error. He had a right to serve his sentence continuously. Practically speaking, he is back in prison with almost two and one-half years left to serve on his maximum sentence, one of which will satisfy his minimum sentence.
Trial Court's Pa.R.A.P. 1925(a) Opinion filed 10/20/11 at 2-3.
On appeal, the Commonwealth's sole contention is that the trial court erred in giving Appellee credit for "time served" from January 21, 2010, when he was mistakenly released from prison due to a clerical error, until August 12, 2011, when Appellee was detained.*fn6
Initially, we note that the Commonwealth presents a challenge to the legality of Appellee's sentence. See Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super. 2009). "[T]herefore, our task is to determine whether the trial court erred as a matter of law and, in doing so, our scope of review ...