J-S06035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.
CODY ROBERT MILLER
Appellant No. 398 EDA 2016
Appeal from the Judgment of Sentence December 29, 2015 in the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001172-2015 CP-45-CR-0001177-2015
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 28, 2017
Appellant Cody Robert Miller appeals from a judgment of sentence of
twelve to forty-eight months’ imprisonment imposed in the Monroe County
Court of Common Pleas (“Monroe County court”) for retail theft 1 and driving
under the influence (“DUI”).2 Appellant argues that the Monroe County
court erred by failing to award him credit for three of the seven months he
was incarcerated prior to sentencing. The Commonwealth agrees that relief
is due. We vacate and remand for resentencing.
* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 3929(a)(1). 2 75 Pa.C.S. § 3802(d)(1)(i). J-S06035-17
On November 25, 2014, Appellant was sentenced in the Northampton
County Court of Common Pleas to twelve months’ probation for possession
of drug paraphernalia.
On May 20, 2015, Appellant was arrested in Monroe County in the
cases presently on appeal, which the Monroe County court docketed at Nos.
1172-2015 and 1177-2015. Because Appellant was unable to post bail, he
was incarcerated in Monroe County. On August 26, 2015, Appellant pleaded
guilty to retail theft at No. 1172-2015 and DUI at No. 1177-2015.
On August 27, 2015, law enforcement officials transported Appellant to
Northampton County on a probation detainer issued in the Northampton
County case. Appellant remained incarcerated in Northampton County until
December 29, 2015, when he returned to the Monroe County court for
sentencing.
On December 29, 2015, the Monroe County court ordered Appellant to
serve an aggregate state sentence of twelve to forty-eight months’
imprisonment.3 The court gave Appellant credit for his period of
incarceration in Monroe County—May 20, 2015 to August 27, 2015—but did
not award credit for his period of incarceration in Northampton County.
3 In No. 1172-2015, the court sentenced Appellant to nine to forty-two months’ imprisonment for retail theft. In No. 1177-2015, the court sentenced Appellant to a consecutive term of three to six months’ imprisonment for DUI.
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On January 6, 2016, Appellant filed post-sentence motions asserting
that his sentence was excessive. He did not object to the lack of credit for
time served in Northampton County. On January 7, 2016, the Monroe
County court denied Appellant’s post-sentence motions.
Appellant’s probation violation hearing in Northampton County
apparently took place on January 8, 2016.4 It appears that Appellant’s
probation officer informed the court about Appellant’s Monroe County
sentence and asked that “we close this case out so [Appellant] can serve his
state sentence.” N.T., Probation Violation Hr’g, 1/8/16, at 3. It further
appears that the Northampton County court agreed to “close this case”
because Appellant “has other issues in SCI to deal with.” Id. at 4.
On February 3, 2016, Appellant filed timely appeals in both Monroe
County cases. This Court docketed both appeals at the same caption
number. Both Appellant and the Monroe County court complied with
Pa.R.A.P. 1925.
Appellant raises one issue on appeal:
Where upon review of the record from another county it is learned that [A]ppellant received no time credit for time spent in that county on a probation violation, is not [Appellant] entitled to credit on the sentence served in the home county that formed the basis for the probation violation?
4 The certified record from Monroe County does not include the transcript of the Northampton County hearing. An alleged hearing transcript is appended to Appellant’s brief.
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Appellant’s Brief, at 6. In response to Appellant’s brief, the Commonwealth
filed a letter stating that it agreed with Appellant’s position.
Appellant challenges the Monroe County court’s refusal to award credit
for time served in Northampton County. This is a question of law, because it
implicates the legality of Appellant’s sentence. Commonwealth v. Aikens,
139 A.3d 244, 245 (Pa. Super. 2016). Our standard of review over such
questions is de novo, and our scope of review is plenary. Id. Although
Appellant did not raise this argument in his post-sentence motions, we will
review this issue because challenges to the legality of sentence are non-
waivable. Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super.
2002).
Section 9760 of the Pennsylvania Judicial Code governs credit for time
served and provides in pertinent part:
After reviewing the information . . . 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.
42 Pa.C.S. § 9760(1).
Our analysis of section 9760(1) in Commonwealth v. Smith, 853
A.2d 1020 (Pa. Super. 2004), is controlling. The defendant in Smith was
sentenced to probation on a firearms charge. Id. at 1023. Three years
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later, he was arrested in a second case. Id. He was released on bail in the
second case but was incarcerated on a probation detainer issued in the first
case. Id. He remained in jail on the detainer for approximately one year
and then proceeded to trial in the second case. Id. The jury found him
guilty, and the trial court sentenced him to a term of imprisonment. Id. at
1022. Subsequently, the court closed the probation violation in the first
case without imposing further penalty, but it refused to credit the time
served on the probation detainer against the defendant’s sentence in the
second case. Id. at 1022-23.
On appeal, applying section 9760(1), this Court held that the
defendant was entitled to credit in the second case for time served on the
detainer issued in the first case. Id. at 1025. We further reasoned that the
principle of “equitable crediting of pre-trial incarceration,” which our
Supreme Court delineated with respect to parole in Martin v. Pa. Bd. of
Prob. and Parole, 840 A.2d 299, 308–09 (Pa. 2003), applies with equal
force to probation. Smith, 853 A.2d at 1026. We stated that where
“pretrial incarceration is attributable to both [a] probation detainer and . . .
new criminal charges, it must be attributed to either [the] sentence under
the new criminal charges or to [the] sentence imposed for violation of
probation.” Id. Because the court closed the defendant’s probation
violation proceedings without imposing penalty, the time he served in
-5- J-S06035-17
pretrial detention on the probation detainer in the first case had to be
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J-S06035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.
CODY ROBERT MILLER
Appellant No. 398 EDA 2016
Appeal from the Judgment of Sentence December 29, 2015 in the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001172-2015 CP-45-CR-0001177-2015
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 28, 2017
Appellant Cody Robert Miller appeals from a judgment of sentence of
twelve to forty-eight months’ imprisonment imposed in the Monroe County
Court of Common Pleas (“Monroe County court”) for retail theft 1 and driving
under the influence (“DUI”).2 Appellant argues that the Monroe County
court erred by failing to award him credit for three of the seven months he
was incarcerated prior to sentencing. The Commonwealth agrees that relief
is due. We vacate and remand for resentencing.
* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 3929(a)(1). 2 75 Pa.C.S. § 3802(d)(1)(i). J-S06035-17
On November 25, 2014, Appellant was sentenced in the Northampton
County Court of Common Pleas to twelve months’ probation for possession
of drug paraphernalia.
On May 20, 2015, Appellant was arrested in Monroe County in the
cases presently on appeal, which the Monroe County court docketed at Nos.
1172-2015 and 1177-2015. Because Appellant was unable to post bail, he
was incarcerated in Monroe County. On August 26, 2015, Appellant pleaded
guilty to retail theft at No. 1172-2015 and DUI at No. 1177-2015.
On August 27, 2015, law enforcement officials transported Appellant to
Northampton County on a probation detainer issued in the Northampton
County case. Appellant remained incarcerated in Northampton County until
December 29, 2015, when he returned to the Monroe County court for
sentencing.
On December 29, 2015, the Monroe County court ordered Appellant to
serve an aggregate state sentence of twelve to forty-eight months’
imprisonment.3 The court gave Appellant credit for his period of
incarceration in Monroe County—May 20, 2015 to August 27, 2015—but did
not award credit for his period of incarceration in Northampton County.
3 In No. 1172-2015, the court sentenced Appellant to nine to forty-two months’ imprisonment for retail theft. In No. 1177-2015, the court sentenced Appellant to a consecutive term of three to six months’ imprisonment for DUI.
-2- J-S06035-17
On January 6, 2016, Appellant filed post-sentence motions asserting
that his sentence was excessive. He did not object to the lack of credit for
time served in Northampton County. On January 7, 2016, the Monroe
County court denied Appellant’s post-sentence motions.
Appellant’s probation violation hearing in Northampton County
apparently took place on January 8, 2016.4 It appears that Appellant’s
probation officer informed the court about Appellant’s Monroe County
sentence and asked that “we close this case out so [Appellant] can serve his
state sentence.” N.T., Probation Violation Hr’g, 1/8/16, at 3. It further
appears that the Northampton County court agreed to “close this case”
because Appellant “has other issues in SCI to deal with.” Id. at 4.
On February 3, 2016, Appellant filed timely appeals in both Monroe
County cases. This Court docketed both appeals at the same caption
number. Both Appellant and the Monroe County court complied with
Pa.R.A.P. 1925.
Appellant raises one issue on appeal:
Where upon review of the record from another county it is learned that [A]ppellant received no time credit for time spent in that county on a probation violation, is not [Appellant] entitled to credit on the sentence served in the home county that formed the basis for the probation violation?
4 The certified record from Monroe County does not include the transcript of the Northampton County hearing. An alleged hearing transcript is appended to Appellant’s brief.
-3- J-S06035-17
Appellant’s Brief, at 6. In response to Appellant’s brief, the Commonwealth
filed a letter stating that it agreed with Appellant’s position.
Appellant challenges the Monroe County court’s refusal to award credit
for time served in Northampton County. This is a question of law, because it
implicates the legality of Appellant’s sentence. Commonwealth v. Aikens,
139 A.3d 244, 245 (Pa. Super. 2016). Our standard of review over such
questions is de novo, and our scope of review is plenary. Id. Although
Appellant did not raise this argument in his post-sentence motions, we will
review this issue because challenges to the legality of sentence are non-
waivable. Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super.
2002).
Section 9760 of the Pennsylvania Judicial Code governs credit for time
served and provides in pertinent part:
After reviewing the information . . . 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.
42 Pa.C.S. § 9760(1).
Our analysis of section 9760(1) in Commonwealth v. Smith, 853
A.2d 1020 (Pa. Super. 2004), is controlling. The defendant in Smith was
sentenced to probation on a firearms charge. Id. at 1023. Three years
-4- J-S06035-17
later, he was arrested in a second case. Id. He was released on bail in the
second case but was incarcerated on a probation detainer issued in the first
case. Id. He remained in jail on the detainer for approximately one year
and then proceeded to trial in the second case. Id. The jury found him
guilty, and the trial court sentenced him to a term of imprisonment. Id. at
1022. Subsequently, the court closed the probation violation in the first
case without imposing further penalty, but it refused to credit the time
served on the probation detainer against the defendant’s sentence in the
second case. Id. at 1022-23.
On appeal, applying section 9760(1), this Court held that the
defendant was entitled to credit in the second case for time served on the
detainer issued in the first case. Id. at 1025. We further reasoned that the
principle of “equitable crediting of pre-trial incarceration,” which our
Supreme Court delineated with respect to parole in Martin v. Pa. Bd. of
Prob. and Parole, 840 A.2d 299, 308–09 (Pa. 2003), applies with equal
force to probation. Smith, 853 A.2d at 1026. We stated that where
“pretrial incarceration is attributable to both [a] probation detainer and . . .
new criminal charges, it must be attributed to either [the] sentence under
the new criminal charges or to [the] sentence imposed for violation of
probation.” Id. Because the court closed the defendant’s probation
violation proceedings without imposing penalty, the time he served in
-5- J-S06035-17
pretrial detention on the probation detainer in the first case had to be
credited against the sentence imposed in the second case. Id.
Pursuant to Smith, if the Northampton County case was closed
without further penalty, the Monroe County court is required to award
Appellant credit for time served on the Northampton County detainer.
Appellant was on probation in Northampton County at the time of his arrest
in Monroe County. Following this arrest, Appellant was incarcerated both for
failing to post bail in Monroe County and as a result of the Northampton
County detainer. Thus, his pretrial incarceration was attributable to both his
Monroe County arrest and his Northampton County detainer. The Monroe
County court sentenced him to imprisonment but only awarded him credit
for three of his seven months of pretrial incarceration.
It appears, however, that the Northampton County court later closed
Appellant’s probation case without penalty. If so, he would be entitled to
receive credit in Monroe County for all pretrial incarceration, including time
served in Northampton County, because Appellant’s lone prison sentence
was in Monroe County. See Smith, 853 A.2d at 1022-23, 1026.
Conceivably, the Monroe County court declined to credit Appellant for
time served in Northampton County because it assumed that the
Northampton County court would sentence Appellant to imprisonment for his
probation violation and credit Appellant’s incarceration in Northampton
County against his Northampton County sentence. Although this assumption
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was reasonable, it now appears that the Northampton County court took a
different course of action.
To confirm what action the Northampton County court took, we direct
the Monroe County court to hold a hearing to determine the disposition of
the Northampton County case. If the Northampton County case was closed
without further penalty, we direct the Monroe County court to award
Appellant credit for all time served between the date of arrest in Monroe
County, May 20, 2015, and the date of sentencing, December 29, 2015.
Judgment of sentence vacated. Case remanded for sentencing
proceedings in accordance with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/28/2017
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