The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAMIEN DUVELL SPEED
Appellant No. 961 WDA 2014
Appeal from the Judgment of Sentence May 15, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002979-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 06, 2015
Appellant, Damien Duvell Speed, appeals from the judgment of
sentence entered May 15, 2014, in the Court of Common Pleas of Erie
County. On appeal, Speed argues that the trial court erred when it denied
his post-sentence motion for credit for time served, choosing instead to
defer awarding any credit until after the Pennsylvania Board of Probation and
Parole (“the Board”) made a determination regarding the revocation of
Speed’s probation. After careful review, we find the trial court erred when it
deferred the application of credit for time served until after disposition of
revocation by the Board. Accordingly, we vacate Speed’s judgment of
sentence and remand for resentencing.
We briefly summarize the history of this case as follows. On March 20,
2014, a jury convicted Speed of possession of heroin and possession of drug
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paraphernalia.1 On May 15, 2014, the trial court sentenced Speed to 12 to
24 months’ incarceration. At the time of the commission of these crimes,
Speed was on state probation for previous drug and firearms offenses.
Speed filed a post-sentence motion nunc pro tunc requesting that the trial
court award credit for time served, which the trial court denied.
On appeal, Speed challenges the trial court’s denial of credit for time
served. This issue raises a challenge to the legality of a sentence. See
Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). The
application of credit for time served is governed by 42 Pa.C.SA. § 9760,
which states in part the following:
(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.
42 Pa.C.S.A. § 9760(1). “[I]t is noteworthy that 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 with the sentencing court.” Commonwealth v. Ellsworth,
97 A.3d 1255, 1257 (Pa. Super. 2014) (citation omitted).
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1
35 Pa.C.S.A. §§ 780-113(a)(16) and (32).
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It is undisputed that Speed is entitled to credit for time served. The
trial court explained its reasons for denying Speed’s motion as follows:
Over the last year, this [c]ourt has experienced a number
of situations where it has afforded defendants credit for time
served at sentencing, only to be later notified by the Board that
after revocation it afforded the defendant the same credit.
(Because most revocations occur subsequent to sentencing, this
[c]ourt is not in a position to determine at sentencing what the
Board will do with respect to credit.) The Board then advised
this [c]ourt that unless it wanted to afford duplicate credit, it had
to issue an order amending the original sentence subtracting
from its order any time awarded by the Board. This created
additional work for the trial court. In an attempt to eliminate the
extra step of modifying sentencing orders, this [c]ourt advised
the Erie County Adult Probation Department to contact state
parole agents prior to sentencing to determine on a case-by-case
basis whether the defendant would be obtaining credit in the
event of a revocation. This did not totally resolve the issue.
Therefore, this [c]ourt adopted the policy of deferring the issue
of credit in some cases until the Board has acted on the
revocation. It is this policy that is at issue in this appeal.
Trial Court Opinion, 6/26/14 at 3.
For guidance on the appropriate procedure for the application of credit
for time served, we turn to this Court’s decision in Commonwealth v.
Mann, 957 A.2d 746 (Pa. Super. 2008). In Mann, a panel of this Court held
that “because the Board is without jurisdiction to apply credit when it is
omitted from a sentencing order, the sentencing court must include credit
for time served in the order imposing sentence for an appellant's new
offenses.” Mann, 957 A.2d at 748 (emphasis added). The panel explained
that:
While no single case offers a specific, unified, time-served
credit application schema, we read [Gaito v. Pa. Bd. of
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Probation & Parole, 412 A.2d 568 (Pa. 1980)], [Martin v. Pa.
Bd. Of Probation & Parole, 840 A.2d 299 (Pa. 2003)], and
[McCray v. Pa. Dept. of Corrections, 872 A.2d 1127 (Pa.
2005)] together as providing a resolution to the questions of
where time-served credits are to be applied and by which
adjudicatory body: all time served by a parole violator while
awaiting disposition on new charges must be credited to the
original sentence if he or she remains in custody solely on a
Board detainer. Gaito, supra. If the defendant is incarcerated
prior to disposition, and has both a detainer and has failed for
any reason to satisfy bail, the credit must be applied to the new
sentence by the sentencing court. See Id.; see Martin, supra.
In this circumstance, the credit must be applied by the trial court
as a sentencing condition, as the Board and the Commonwealth
Court have no jurisdiction to alter sentencing conditions on later
review. See McCray. If the new sentence is shorter than the
time served, the balance can be applied to the original sentence,
see Martin, supra, but the sentencing court must specify “time
served” in the sentencing order for the new offense, so that the
Board will be able to apply the credit. See McCray.
Id. at 751.
Here, Speed was incarcerated on new charges prior to the Board’s
disposition of any possible probation revocation. In such a circumstance,
the decision in Mann clearly dictates that any credit “must be applied to the
new sentence by the sentencing court[,]” as the Board is without the
authority to impose credit for time served when it is omitted from the
sentencing order. Id. Accordingly, we find the trial court’s decision to defer
application of credit until after disposition by the Board was in error. See
id.; see Ellsworth, supra. Therefore, we vacate Speed’s judgment of
sentence and remand for resentencing with consideration of credit for time
served.
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Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: February 6, 2015
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