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[U] Commonwealth v. Murphy

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA,
v.
MISTY MURPHY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence, December 3, 2012, in the Court of Common Pleas of Cambria County Criminal Division at Nos. CP-11-CR-0000434-2012, CP-11-CR-0000437-2012, CP-11-CR-0002183-2011.

Joseph D. Seletyn, Esq.

BEFORE: FORD ELLIOTT, P.J.E., OTT AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.:

Misty Murphy appeals from the judgment of sentence of December 3, 2012, following her conviction of one count each of criminal trespass, receiving stolen property ("RSP"), and theft by unlawful taking. The sole issue raised on appeal is whether appellant is entitled to additional credit time against her sentence. We vacate the judgment of sentence and remand for further proceedings.

On September 27, 2012, appellant entered an open guilty plea to the above charges. At the time of her plea, appellant was serving a state sentence on charges from Indiana County. Appellant had been sentenced in August 2012[1] to 21 months to 5 years' imprisonment. On December 3, 2012, appellant appeared for sentencing before the Honorable David J. Tulowitzki. Appellant received a sentence of 6 to 12 months' imprisonment for criminal trespass, to be served consecutively to her Indiana County sentence. On the charges of RSP and theft, appellant received concurrent sentences of 12 months' probation.

On December 10, 2012, appellant filed a timely post-sentence motion to modify sentence, arguing that the trial court should have awarded credit for time served from January 26, 2012, when she failed to post bail. As a result of failing to post bail on these charges, appellant remained incarcerated in the Indiana County jail. However, according to appellant, she never received credit for that time against her Indiana County sentence. Therefore, appellant argued she must receive credit from January 26, 2012, against her Cambria County sentence. Appellant also argued that the trial court erred in determining she was not boot camp eligible.

On December 14, 2012, the trial court granted appellant's motion to determine motivational boot camp eligibility, deeming her boot camp eligible. However, the trial court denied appellant's motion for time credit, stating that the court would not award double credit time.

A timely notice of appeal was filed on January 14, 2013.[2] On January 17, 2013, appellant was ordered to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b); appellant timely complied on January 28, 2013, asserting that the trial court erred in denying appellant's post-sentence motion where it determined that appellant was given proper credit for time served. The trial court filed a Rule 1925(a) opinion on January 30, 2013.

"Appellant's challenge to the trial court's failure to award credit for time served prior to sentencing involves the legality of sentence. A claim challenging the legality of a sentence is appealable as of right." Commonwealth v. Little, 612 A.2d 1053, 1053 n.1 (Pa.Super. 1992), citing Commonwealth v. Hollawell, 604 A.2d 723 (Pa.Super. 1992).

The Sentencing Code provides, with regard to awarding credit for time served, in relevant part as follows:

§ 9760. Credit for time served
After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the ...

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