March 7, 2014
COMMONWEALTH OF PENNSYLVANIA,
MISTY MURPHY, Appellant
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.
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 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. 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 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.
(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.A. § 9760(1), (4).
The decided cases have held generally that a defendant shall be given "credit for any days spent in custody prior to the imposition of sentence, but only if such commitment is on the offense for which sentence is imposed. Credit is not given, however, for a commitment by reason of a separate and distinct offense."
Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa.Super. 1995), quoting Commonwealth ex rel. Bleecher v. Rundle, 217 A.2d 772, 774 (Pa.Super. 1966) (citations omitted).
Pursuant to 42 Pa.C.S. § 9760(4), credit is to be awarded if, on the date of the defendant's arrest on charges for which he is being sentenced, he was already incarcerated for unrelated charges for which he was not given credit on any other sentence. In such circumstances, the defendant must be given credit for time served from the date of his arrest on the subject charges until the date of his sentencing for those charges, even though he was already incarcerated on unrelated charges on the date of his arrest. Principally, subsection (4) of the statute has been applied in situations where the defendant is in custody in another county or state on unrelated charges at the time he is arrested by the authorities in the sentencing county, and where he has not received credit against any other sentence for the time spent in custody in such other county or state.
Id. at 1003, citing Little, supra (additional citations omitted).
Instantly, appellant claims that she remained incarcerated in Indiana County after failing to post bond on these charges. According to appellant, she is owed credit from January 26, 2012, as that time was never credited to her Indiana County sentence. She alleges that the sentencing court in Indiana County did not award her any credit time.
The case of Little, supra, is instructive. There, the appellant was arrested in January 1991 and charged with theft, RSP, conspiracy, and retail theft in connection with an incident in Centre County. Little, 612 A.2d at 1053-1054. The appellant was unable to post bail. Id. at 1054. In the meantime, at the time of his arrest on the Centre County charges, the appellant was already incarcerated and awaiting trial in Allegheny County on a number of unrelated charges, having also failed to post bail in Allegheny County. Id.
In April 1991, the appellant pled guilty to theft in Centre County and was sentenced to 30 days to 23½ months' incarceration with no credit for time served. Id. Subsequently, the appellant's Allegheny County charges were nol prossed. Id. On appeal, the appellant argued that the trial court should have granted him credit for time served while he was in custody in the Allegheny County jail. Id. This court agreed, stating,
It is undisputed that Appellant was confined in Allegheny County on unrelated matters when he was arrested for the Centre County crimes he was alleged to have committed prior to his Allegheny County confinement. The trial court acknowledges that prior to sentencing on the Centre County charges he was not given credit in Allegheny County for the time spent in their facility and, in fact, the Allegheny County charges were subsequently nol prossed. Under these circumstances we find the provisions of § 9760(4) applicable and conclude the trial court erred in not crediting Appellant for the time served in the Allegheny County prison, since Allegheny County did not credit him for this period of confinement prior to the imposition of the Centre County sentence.
Id. at 1055. See also Commonwealth v. Mann, 957 A.2d 746, 749 (Pa.Super. 2008) ("If a defendant . . . remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence."), quoting Gaito v. Pa. Bd. of Probation & Parole, 488 Pa. 397, ___, 412 A.2d 568, 571 (1980) (emphasis deleted). Cf. Miller, supra (appellant not entitled to credit for the drug charge, where he posted bail on the drug charge and was released, and was later arrested on unrelated charges of which he was eventually tried and acquitted; appellant's incarceration was not attributable to the drug charge).
The case sub judice is indistinguishable from Little. As in Little, appellant was incarcerated in Indiana County awaiting trial when she was arraigned on these charges. Bail was set at $50, 000, which appellant was unable to post, and she remained in jail in Indiana County. According to appellant, she did not receive credit for this time against her Indiana County sentence, presumably because it related to the Cambria County charges. While the Cambria County court did direct that appellant receive credit for time served, the order was not specific. "The Department of Corrections, an executive agency, has no power to change sentences, or to add or remove sentencing conditions, including credit for time served; this power is vested in the sentencing court." Mann, 957 A.2d at 749, citing McCray v. Pa. Dept. of Corrections, 582 Pa. 440, ___, 872 A.2d 1127, 1133 (2005). The DOC is not going to apply credit time from January 26, 2012 without being specifically ordered to do so by the sentencing court.
We also disagree with the trial court's statement that appellant should either raise the issue with the Indiana County court or, alternatively, file a petition for writ of mandamus in Commonwealth Court. (Trial court opinion, 1/30/13 at 3.) Appellant was allegedly in custody as a result of failing to make bail on these new charges filed in Cambria County. The Indiana County court would have no basis to award appellant credit time against her sentence for time spent in custody on unrelated charges brought in Cambria County. Appellant's time spent in custody is attributable to these charges, not the Indiana County charges.
Furthermore, appellant's Indiana County sentence was imposed in August 2012, and it is well established that even claims of an illegal sentence must be raised via a timely PCRA petition within one year of judgment of sentence. Assuming appellant did not take a direct appeal, any such petition filed in Indiana County would likely be out of time. See Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999) ("Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto.") (citation omitted); 42 Pa.C.S.A. § 9545(b)(1) ("Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final . . .").
Regarding a petition for writ of mandamus in the Commonwealth Court, appellant is challenging the legality of her sentence for failure to award statutorily mandated time credit, not the DOC's calculation of her time served. Appellant properly raised this issue in Cambria County at sentencing and in post-sentence motions, and this court has jurisdiction in the matter. Compare Commonwealth v. Perry, 563 A.2d 511, 512-513 (Pa.Super. 1989); Black v. Pennsylvania Department of Corrections, 889 A.2d 672, 674 (Pa.Cmwlth. 2005) (appropriate vehicle for redress of any specific calculation of time served would be an original action in the Commonwealth Court challenging the DOC's computation, after exhausting any administrative remedies available through the DOC's internal grievance process).
However, we observe that appellant seeks time credit from January 26, 2012, when she was unable to make bail, until December 3, 2012, the date of her sentencing in Cambria County. Appellant was sentenced in Indiana County in August 2012 to 21 months to 5 years' imprisonment, and had already served four months of her state sentence when she was sentenced in this case. (Notes of testimony, 12/3/12 at 6.) When she appeared for sentencing in Cambria County before Judge Tulowitzki, appellant was incarcerated at SCI Muncy and had commenced serving her Indiana County sentence. (Id. at 2-3.) Therefore, appellant would only be entitled to credit time from January 26, 2012, to her date of sentencing in Indiana County in August 2012. Any award of credit time after August 2012 would constitute double credit. Again, it will be necessary for the trial court on remand to ascertain when appellant's Indiana County sentence began to run, confirm that she did not receive any time credit for her Indiana County sentence, and determine whether, in fact, as appellant alleges, she was in custody in the Indiana County jail after January 26, 2012, as a result of failing to post bail on the Cambria County charges. Assuming those prerequisites are satisfied, appellant is statutorily entitled to time credit against her Cambria County sentence. Little. We acknowledge, as the trial court states, that it did give appellant credit for time served; however, there is no indication as to what that credit was. Additionally, the trial court does not have access to Indiana County court records. It should be emphasized that appellant bears the burden on remand of producing record-based evidence for the trial court to support her claims.
Judgment of sentence vacated. Remanded to the trial court for further proceedings and recomputation of sentence, if necessary, in accordance with this memorandum. Jurisdiction relinquished.