Com. of Pa. v. Gibbs

181 A.3d 1165

COMMONWEALTH of Pennsylvania, Appellee

v.Marcus GIBBS, Appellant

No. 987 WDA 2017

Superior Court of Pennsylvania.

Submitted February 5, 2018

Filed March 19, 2018

Jessica A. Fiscus, Public Defender, Erie, for appellant.

Molly W. Anglin, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY KUNSELMAN, J.

Marcus Gibbs appeals from the sentence entered against him because he claims the trial court did not properly award him credit for time served against his new criminal charges. After careful review, we vacate and remand.

Gibbs has a lengthy criminal history, dating back to 1999. This docket served as his fifth conviction for possession of drugs, separate from convictions for possession with intent to deliver drugs. It is also his third conviction for driving while his operating privileges were suspended or revoked. Gibbs pled guilty to five charges in this matter:

Count 1: Possession of a Controlled Substance

Count 2: Possession of Marijuana—Small Amount Personal UseCount 3: Possession of Drug Paraphernalia

Count 4: Disorderly Conduct

Count 5: Driving While Operation Privileges Suspended or Revoked.¹

When Gibbs was arrested on November 17, 2016, his bond was set at $75,000 straight. He never posted bail and remained incarcerated until the time of his sentencing. These charges all occurred while Gibbs was on state parole for previous charges that occurred in 2007. Technically, Gibbs remained incarcerated on both the new criminal charges and a parole board detainer.

On May 31, 2017, the court sentenced Gibbs on the new charges as follows:

Count 1: Incarceration for a minimum period of 6 months and a maximum period of 12 months, consecutive to 1157 of 2007 and 2780 of 2007, plus costs, a $100.00 fine and lab fee in the amount of $239.00.

Count 2: Probation by the state probation department for a period of 30 days, concurrent to Count 3.

Count 3: Probation by the state probation department for a period of 12 months, consecutive to Count 5.

Count 4: Probation by the state probation department for a period of 6 months consecutive to Count 3.

Count 5: Incarceration for a period of 60 days, consecutive to Count 1, and a $500.00 fine plus surcharges.

All credit for time served went to Gibbs' detainers at Docket Numbers 1157 of 2007 and 2870 of 2007. Gibbs filed a timely notice of appeal, raising one issue for our review.

1. Did the sentencing court impose an illegal sentence when it failed to award credit for time served on the instant docket?

Gibbs' Brief at 8.

A claim asserting that the trial court failed to award credit for time served implicates the legality of the sentence. Commonwealth v. Johnson , 967 A.2d 1001, 1003 (Pa. Super. 2009). Issues relating to the legality of a sentence are questions of law. Commonwealth v. Aikens , 139 A.3d 244, 245 (Pa. Super. 2016). Our standard of review over such questions is de novo and the scope of review is plenary. Id.

The Pennsylvania Sentencing Code, with regard to awarding credit for time served, provides 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 conduct on which such a charge is based. Credit shall include credit for the 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). This statute does not specifically contemplate credit for time served following a parole violation and revocation. Our Supreme Court has held, however, that this credit statute mandates an offender receive credit for all incarceration served before sentencing for which he is being detained in custody. Gaito v. Pa. Bd. of Probation and Parole , 488 Pa. 397, 412 A.2d 568 (1980). Determining who applies the credit and to which offense it applies has been difficult.

In reaching its decision to apply credit for time served on Gibbs' original sentence, the trial court relied on the Supreme Court decision in Martin v. Pa. Bd. of Probation and Parole , 576 Pa. 588, 840 A.2d 299 (2003). Based on Martin , the trial court believed it could award the credit to either the original charges or the new charges.

In Martin , the court painstakingly attempted to fashion a rule that would work in all situations where confinement was the result of both the detainer for a parole violation and the failure to meet conditions of bail on the new offense. The court reviewed many cases and searched for a comparable resolution of this issue in other jurisdictions. Id. at 304–08. The court observed that "[u]nique combinations of circumstances will be presented in different cases that tip the balance for or against the particular allocation of credit. Id. at 308. Ultimately, the Martin court left the application of time served to the Board's discretion and held that where an offender was incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited by the Board to either the new sentence or the original sentence. Id. (emphasis added).

Following the Martin decision in 2003, however, other cases have addressed the issues of whether the Board or the sentencing court should determine credit for time served and to which offense that credit should be applied. See e.g. McCray v. Pa. Dept. of Corrections , 582 Pa. 440, 872 A.2d 1127 (2005) ; Melhorn v. Pa. Bd. of Probation and Parole , 883 A.2d 1123 (Pa. Cmwlth. 2005), rev'd 589 Pa. 250, 908 A.2d 266 (2006) ; Armbruster v. Pa. Bd. of Probation and Parole , 919 A.2d 348 (Pa. Cmwlth. 2007). Ultimately, these cases determined that where a sentencing court does not give an inmate full credit for time served, the inmate's remedy is in the trial court, and through the direct appeal process, not through the Board....