Com. v. Wilson, K.

Superior Court of Pennsylvania

Com. v. Wilson, K.

DecidedAugust 8, 2022

Docket1009 WDA 2021

StatusUnpublished

This text of Com. v. Wilson, K. (Com. v. Wilson, K.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Wilson, K., (Pa. Ct. App. 2022).

Pincite

Opinion

J-S14010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH L. WILSON : : Appellant : No. 1009 WDA 2021

Appeal from the Judgment of Sentence Entered May 25, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003983-2019

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 8, 2022

Kenneth L. Wilson appeals from the judgment of sentence imposed

following his convictions for tampering with public records or information, theft

by deception, theft of services, and tampering with records or identification.1

He claims that the trial court erred in its calculation of credit for time served.

We affirm.

Wilson pled guilty on July 24, 2020, to the above-referenced offenses.

At sentencing, defense counsel asked for credit for time served. He suggested

to the court that credit for Wilson began on August 29, 2019, when his

$50,000 unsecured bond was changed to a monetary bond. N.T., Sentencing,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 4911(a)(3), 3922(a)(1), 3926(a)(1), and 4104(a), respectively. J-S14010-22

5/25/21, at 4.2 He stated that Wilson was entitled to credit from August 29,

2019 to July 27, 2020, when his bond reverted to unsecured. Id. The

Commonwealth countered that Wilson was not entitled to credit for time

served from August 2019 to April 8, 2020. Id. at 18. It argued during that

period Wilson was serving a sentence for another case in Bucks and

Montgomery County and therefore any credit for that time went to those

sentences. Id.3 The Commonwealth also stated that Wilson had served a

sentence in Burlington, New Jersey, but maintained that any credit for that

period had already been applied. Id. at 20. It argued that “[t]he only time he

has credit for is the date that they released him to wait for the sheriffs. It can’t

be more than two weeks.” Id. at 21.

The trial court imposed an aggregate sentence of two to four years’

incarceration followed by a consecutive term of three years reporting

probation. It stated “[a]s far as the prior credit for time served, the

Department of Corrections will calculate and give [Wilson] credit for whatever

time he’s entitled to.” Id. at 27. On the sentencing order, the court noted that

the Department of Corrections (“DOC”) should determine credit for time

served.

2Wilson’s original sentencing hearing was scheduled for October 22, 2020, but Wilson failed to appear.

3Bucks County sentenced Wilson on August 1, 2019, to 11 months and 29 days to 20 months and 29 days followed by four years of reporting probation. N.T., Sentencing, at 19. He was granted parole on April 8, 2020. Id.

-2- J-S14010-22

Wilson filed a post-sentence motion, arguing that he was entitled to

credit for time served from August 29, 2019 to July 24, 2020. See Defendant’s

Motion for Sentence Reconsideration, filed 6/4/2021. He argued that the court

erred in ordering the DOC to calculate the credit. He also argued that the court

“must have assessed credit for time served at the sentencing and placed the

days of credit on the sentencing order.” Id. at ¶ 11.

At a hearing on the motion, defense counsel argued that Wilson was

entitled to credit for two periods, one of 334 days and another of 79 days.

N.T., Post-Sentence Motion Hearing, 8/5/21, at 7.4 The 334 days was for the

period from the date his bail bond became secured to the date it reverted to

being unsecured, that is, August 29, 2019 to July 27, 2020. Id. at 5. The 79

days was for the time from his incarceration for the instant case until the post-

sentence motion hearing, that is, from May 19, 2021 to August 5, 2021. Id.

at 7. He also argued that the court should determine his credit for time served,

not the DOC. Id. at 4.

The Commonwealth argued that Wilson was entitled to credit from

August 29, 2019 to September 11, 2019, and from May 19, 2021, to the date

of the hearing. Id. at 10, 13. It argued that if the court gave Wilson credit for

time outside of these periods, it would be granting double credit to Wilson.

Id. at 13. It also argued that Wilson was never in prison for the instant case ____________________________________________

4 The trial court notes that Wilson’s bond changed to unsecured on July 24, 2020, not July 27. See Rule 1925(a) Opinion (“1925(a) Op.”), filed 10/6/21, at 2 n.1. This date change would amount to 331 days instead of the 334 days suggested by defense counsel. See id.

-3- J-S14010-22

until May 19, 2021, when he was released from prison for a separate sentence

he was serving. Id. at 14. The Commonwealth argued that Wilson was not

entitled to credit against the sentence in this case for September 11, 2019 to

April 8, 2020, because that time was counted against two other sentences.

Id.

The trial court determined that Wilson was entitled to 142 days of credit

for time served. Id. at 23. It first subtracted 271 days from defense counsel’s

334 days, amounting to 63 days of credit. Id. at 22.5 The 271 days included

the dates of April 8, 2020 to January 21, 2021. Id.6 The parties agreed that

Wilson was not incarcerated during that time. Id. at 20. The court then added

79 days of credit for time served which included his time in prison on the

instant case to the date of the hearing on the post-sentence motion, May 19,

2021 to August 5, 2021. Id. at 22. The court entered a sentencing order

reflecting 142 days of credit for time served. This timely appeal followed.

Wilson raises the following issue:

Whether the trial court erred by granting in part [Wilson’s] post-sentence motion for sentence reconsideration, for the ____________________________________________

5 The trial court maintains that it erred by subtracting 271 days. Instead, it stated that it should have only subtracted 108 days, April 8, 2020, to July 24, 2020. See 1925(a) Op. at 2 n.2. It states that this changes the credit for time served to 223 days. We are unable to determine from the record whether the trial court is correct.

6 A calculation of these dates amounts to 288 days instead of the 271 determined by the trial court. Additionally, the date of January 21, 2021, is when Wilson was picked up by the State of New Jersey for a separate offense. He remained incarcerated from that date. See N.T., Post-Sentence Motion Hearing, at 17.

-4- J-S14010-22

reason that [Wilson] was entitled to receive 311 days credit for time served, rather than the 142 days credit that was ordered?

Wilson’s Br. at 7 (answer omitted).

Wilson contends that the trial court erred in its calculation of credit for

time served. He claims that instead of 142 days of credit, the court should

have found that he was entitled to 311 days. Wilson’s claim presents a

challenge to the legality of his sentence. See Commonwealth v. Martz, 42

A.3d 1142, 1145 (Pa.Super. 2012). Our scope of review is plenary, and we

must determine whether the court erred as a matter of law. Id.

Section 9760 of the Sentencing Code governs the right to credit for time

served. It provides in part:

After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:

Free access — add to your briefcase to read the full text and ask questions with AI