Commonwealth v. Bowser

783 A.2d 348, 2001 Pa. Super. 271, 2001 Pa. Super. LEXIS 2666

• Court: Superior Court of Pennsylvania
• Decided: September 11, 2001
• Status: Published

Opinions

EAKIN, J.

¶ 1 Richard Bowser appeals, pro se, from the order denying his motion for credit for time served. The trial court succinctly stated the facts of the case:

The defendant, Richard G. Bowser, pled guilty on August 22, 1994, to Receiving Stolen Property, 18 Pa.C.S.A. § 3925. On the same day, the defendant was sentenced pursuant to a plea agreement to serve a period of incarceration of not less than six months nor more than twenty-three months and to a consecutive three-year period of probation. As the defendant had already been incarcerated for eleven months and nineteen days, he was paroled forthwith.

On June 29, 1998, the court revoked the defendant’s probation due to a new criminal conviction and imposed a sentence of incarceration of not less than one year nor more than three years.

On or about July 7, 2000, the defendant filed a Motion for Time Credit requesting that he be given credit on the “revocation sentence” of one to three years for the eleven months and nineteen days that he was incarcerated on the original sentence of six to twenty-three months. The motion was denied on July 11, 2000. This appeal followed.

Trial Court Opinion, 8/24/00, at 1-2.

¶ 2 Appellant raises the following issue:

Where appellant received a sentence of six (6) to twenty-three (23) months and a consecutive three (3) year term of probation for a single count of receiving stolen property and then violated his probation and was resentenced to an additional sentence of one (1) to three (3) years, did the trial court [err] by not crediting him towards his sentence of one (1) to three (3) years for the eleven (11) months and nineteen (19) days that he served on his original sentence of six (6) to twenty-three (23) months?

Appellant’s Brief, at 4.

¶ 3 “Our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing.... Also, upon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence.” Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super.2000) (citations omitted).

¶ 4 Appellant received one sentence with two components: a maximum of 23 months incarceration and a consecutive 36-month term of probation.¹ He received credit on the former for time spent in jail, and was paroled. While serving the probationary portion of the sentence, his probation was revoked because of another criminal conviction. At the time of his second conviction, March 19, 1997, appellant’s parole was over; he was serving only the probationary portion of the sentence. He now wants time previously credited to his incarceration component to be credited to the sentence he received upon revocation of his probation component.

¶ 5 Having received credit for the time in jail on the first component of the sentence, appellant did not spend the last half of the 23-month inearcerative portion of the sentence in jail. Probation began after that credit. Credit has been given once; had no credit been given, he would not have been paroled in August 1994, and his probation would not have begun for some months thereafter. We see no reason to award duplicate credit in the second component of the sentence.

¶ 6 Appellant cites Commonwealth v. Williams, 443 Pa.Super. 479, 662 A.2d 658 (1995), and claims our application of 42 Pa.C.S. § 9760² therein requires him to be credited again with the time spent in jail awaiting trial. In Williams, this Court ordered the appellant’s sentence (following the revocation of probation) be credited with previous time spent incarcerated, because the revocation sentence constituted the maximum time the appellant could serve for the crime; to avoid it being an illegal sentence, the appellant had to receive credit for time previously served for the same crime.

¶ 7 Williams does not control our case. Appellant’s revocation sentence (one to three years), combined with the time to which he has previously been sentenced (six to 23 months), does not equal the maximum amount of time to which he can be sentenced (seven years). Accordingly, appellant’s sentence is not illegal and Williams does not apply.

¶ 8 The sentencing court has the discretion to fashion an appropriate sentence if probation is violated. Our review of the record and the applicable sections of the Sentencing Code does not reveal any abuse of discretion by the sentencing court.

¶ 9 Because appellant has already received credit, and no error can be found in the trial court’s sentence, we affirm.

¶ 10 Order affirmed.

¶ 11 OLSZEWSKI, J. files a Dissenting Opinion.

1 . Although termed consecutive in the trial court opinion, appellant was ordered paroled and placed on probation August 22, 1994; this made the parole and probation components concurrent. See Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa.Super.1997) (citations omitted).

2 . This section of the Sentencing Code provides:

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 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. (2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or ácts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.

42 Pa.C.S. § 9760.