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[U] Commonwealth v. Tarantola

Superior Court of Pennsylvania

February 5, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BARBARA ANN TARANTOLA, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 14, 2013 In the Court of Common Pleas of Monroe County Criminal Division No(s).: CP-45-CR-0002407-2012

BEFORE: BENDER, P.J., LAZARUS, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Barbara Ann Tarantola, appeals from the judgment of sentence entered in the Monroe County Court of Common Pleas on March 14, 2013. Appellant contends the trial court erred in failing to fully credit her for time she spent incarcerated prior to sentencing on the underlying charges. We affirm.

On August 30, 2012, Appellant was charged with numerous criminal offenses including forgery[1] and theft by unlawful taking.[2] Appellant was arrested on those charges on September 14, 2012, in Florida whereupon she was extradited back to Pennsylvania and incarcerated in the Monroe County Correctional Facility. On October 5, 2012, Appellant was arraigned and bail was set.

Meanwhile, on September 25, 2012, New Jersey lodged a detainer, on similar but unrelated charges, against Appellant. Unable to post bond, Appellant remained incarcerated until she pled guilty to first-degree misdemeanor theft[3] on December 21, 2012. That same day, her bail was modified to unsecured status so that she could be transported to New Jersey. However, for some reason, Appellant was not transferred from Monroe County to New Jersey until January 30, 2013. She was released from custody having posted bail in New Jersey on February 13, 2013.

Appellant was sentenced in Monroe County on March 14, 2013, to two to twenty-three months' imprisonment, and ordered to make restitution of $25, 292.85 and pay the costs of the lower court proceedings. In its sentencing order, the trial court determined Appellant was entitled to a time-served credit[4] of eleven days, representing the period from September 14, 2012, to September 25, 2012.[5] Appellant's motion for reconsideration of sentence was denied on March 25, 2013, and this timely appeal from the judgment of sentence followed on March 27, 2013.[6]

In her brief, Appellant raises two issues:

Did the trial court err and abuse its discretion in failing, at the time of sentencing, to give Appellant credit for the time she had served in the Monroe County Correctional Facility pursuant to the charges for which she was sentenced, where no other credit had been given for such time?
Did the trial court err and abuse its discretion in sentencing [Appellant] without giving proper consideration to the provisions for sentencing contained in 42 Pa.C.S.A. § 9760(1)?

Appellant's Brief at 5.

Because Appellant's issues on appeal are interrelated, we address them together. Appellant claims for her first issue that the trial court erred when it determined that she was only entitled to eleven days' credit for time served when, in fact, she was in the Monroe County Correctional Facility from September 14, 2012, to December 21, 2012, as a result of charges arising in Pennsylvania—a total of ninety-eight days. She avers that the trial court improperly calculated her credit based on the possibility that she was to receive credit of 141 days against the New Jersey sentence because, at the time of her Pennsylvania sentencing, the New Jersey sentence was a future event.

For her second issue on appeal, Appellant claims that the plain language of section 9760(1) requires that she receive credit for all time spent in custody relative to the charges for which she was sentenced. Appellant emphasizes that it was improper for the Pennsylvania court to rely on New Jersey's possible award of 141 days of credit on entirely different charges for her time spent incarcerated in Pennsylvania when fashioning Appellant's Pennsylvania sentence. We hold that Appellant is not entitled to relief.

Where an appellant challenges the trial court's failure to award credit for time served prior to sentencing, the claim implicates the legality of the sentence, and thus, the standard of review is de novo. Commonwealth v. Hollawell, 604 A.2d 723, 725 (Pa.Super. 1992); Commonwealth v. Diamond, 546 A.2d 628, 631 n.3 (Pa.Super. 1988).

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 aside since the commission of the offenses on which the sentences were based.
(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.

42 Pa.C.S. § 9760(1)-(4).

Generally, a defendant is entitled to receive full credit for time spent in custody on a criminal charge. 42 Pa.C.S. § 9760(1). However, "The operative rule. . . is that a defendant should receive credit only once for time served before sentencing." Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa.Super. 1996).

In Merigris, the defendant was arrested for burglary in Monroe County on December 23, 1992. "The next day, the United States lodged a detainer against [him] on an unrelated charge." Id. at 194. After pleading guilty to the federal charge, on August 20, 1993, the federal court credited the defendant for time served at the Monroe County Correctional Facility as a result of the federal detainer. On October 21, 1993, the Pennsylvania trial court sentenced the defendant and determined that he was entitled to a credit against his sentence for "two months and five days served on the state charges." Id.

On appeal, the defendant in Merigris claimed that he should receive credit for time served toward both the federal and the state sentences. This Court disagreed, concluding that section 9760(4) bars a defendant from receiving credit against more than one sentence for the same time served. Id. at 195. Applying this Court's rationale in Commonwealth v. Frank, 398 A.2d 663 (Pa.Super. 1979), the Merigris court held "that once the federal court credited [the defendant] for time incarcerated as a result of the federal detainer, [the defendant's] time in custody at the Monroe County Correctional Facility was no longer 'a result of' the charges brought by the Commonwealth." Id.

Instantly, in keeping with the holdings in Merigris and Frank, we conclude that Appellant is not entitled to credit on her Pennsylvania sentence for the period she spent in the Monroe County Correctional Facility from the time the detainer was issued by New Jersey until Appellant entered her guilty plea in Pennsylvania and her bail was modified to unsecured status so that she could be transported to New Jersey. See Merigris, 681 A.2d at 195. That time-period represents time Appellant spent in custody not as a result of the Pennsylvania charges.[7] See id. Accordingly, we affirm the judgment of sentence. See Hollawell, 604 A.2d at 726.

Judgment of sentence affirmed.

Judgment Entered.


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