Commonwealth v. Hebel

9 Pa. D. & C.4th 570, 1991 Pa. Dist. & Cnty. Dec. LEXIS 397
CourtPennsylvania Court of Common Pleas, Clinton County
DecidedMarch 13, 1991
Docketno. 249-83
StatusPublished

This text of 9 Pa. D. & C.4th 570 (Commonwealth v. Hebel) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Clinton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Hebel, 9 Pa. D. & C.4th 570, 1991 Pa. Dist. & Cnty. Dec. LEXIS 397 (Pa. Super. Ct. 1991).

Opinion

BROWN, P.J.,

These are PCRA proceedings wherein defendant is requesting the court to grant him credit on a prior sentence imposed in this court for time served on a sentence in Perry County which was ultimately reversed by the Superior Court and for which defendant was never resentenced.

[571]*571A chronology of the pertinent procedural facts in this matter begins with a look at the Perry County proceedings. Sometime prior to May 1985, defendant was convicted of arson by a jury in Perry County. On May 2, 1985 he was sentenced to a term of one and one-half to five years in a state correctional institution. Defendant began serving that sentence on July 10, 1985. On August 14, 1986 defendant’s conviction in Perry County was reversed by the Superior Court of Pennsylvania. Thereafter the matter was scheduled for retrial but on August 19, 1987, prior to the trial, defendant, pursuant to an agreement with the Commonwealth and the court, entered a plea of nolo contendere to the charge of arson. The matter was then adjourned by the court without any sentence being imposed as indicated by order dated August 19, 1987 by the Honorable Keith B. Quigley, P.J. Subsequently on September 3,1987 Judge Quigley signed an order indicating that the criminal proceedings were concluded and it was directed that all surety heretofore posted be released.

With respect to the Clinton County proceedings, defendant was sentenced on August 1, 1986 to a term of imprisonment with a minimum of two years and a maximum of 10 years in a state correctional institution. This sentence was on the charge of robbery. It followed defendant’s being found guilty of robbery and burglary by a jury on April 23, 1984. Defendant’s post-trial motions were denied in Clinton County in part on April 16, 1985 and entirely on June 10, 1986. In imposing the Clinton County sentence the court did take into account defendant’s prior arson conviction and sentence in Perry County. A direct appeal from defendant’s conviction in Clinton County to the Superior Court of Pennsylvania was denied on May 2, 1988. Defen[572]*572dant’s application for reargument was denied and an allowance of appeal to the Supreme Court of Pennsylvania was further denied on November 10, 1988.

Thereafter on November 11, 1988 defendant filed a motion for reconsideration with this court which was denied. At that time he challenged the court’s consideration of his prior invalid arson conviction during his sentencing proceeding on August 1, 1986. On November 28, 1988 defendant’s motion was denied and he subsequently filed an appeal to the Superior Court of Pennsylvania. By an opinion filed June 13, 1989 the Superior Court affirmed the court’s denying defendant’s motion for reconsideration of sentencing. In so doing the Superior Court suggested that the Post Conviction Relief Act was the appropriate form in which to challenge this court’s judgment of sentence. In so doing the Superior Court declined to consider the issue raised by defendant as to whether at the resentencing hearing a trial court should consider events subsequent to the original sentence. Defendant then filed a Post Conviction Hearing Act petition with the court and following a proceeding held on that petition the matter is ready for disposition with respect to the issues raised by defendant arising out of his Perry County conviction and the impact of those proceedings including his incarceration on the present proceedings.

It should be noted that defendant’s Clinton County sentence was to have begun on August 1, 1986. He was at that time still serving the Perry County sentence so that in part his Clinton County sentence was originally contemplated to have run concurrently with his Perry County sentence. Since he began serving his Perry County sentence on July 10, 1985, and was released based on the Superior Court reversal on August 29, 1986, he had served [573]*573approximately 13 and one-half months toward his 18-month minimum sentence in that county. By contrast he would have served only 29 days of the Clinton County sentence toward his minimum two-year sentence.

On May 29, 1990 defendant was incarcerated on the Clinton County sentence by order of the Honorable Judge Greevy, specially presiding, and he has been incarcerated on the Clinton County sentence since that time. It would thus appear that at the present time defendant has served approximately nine and one-half months on his Clinton County sentence since May 29, 1990 plus an additional 29 days which was served in the month of August 1986.

ISSUE

Whether defendant is entitled to credit against his current Clinton County sentence for time he served on a conviction in Perry County that was subsequently reversed without a judgment of conviction.

DISCUSSION

Defendant argues he is entitled to credit on his Clinton County sentence for the time served on the invalid Perry County conviction. Defendant has cited the provisions of 42 Pa.C.S. §9760(3) which provide as follows:

“If the defendant is serving multiple sentences and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based.”

[574]*574The Commonwealth opposes defendant’s request. Initially the Commonwealth takes issue with defendant’s position that the Perry County proceedings did not result in a conviction against him. The court as a matter of law must reject the Commonwealth’s argument on this point. It is clear from the court orders offered into evidence from the Perry County proceedings that the proceedings were in fact concluded without any judgment of sentence being imposed. It is a rather concrete principle of law that a conviction does not exist in a criminal case until such time as a sentence is imposed. Although it is likely Judge Quigley declined to impose a sentence following the reversal because defendant had already served more than a year on the Perry County arson charge, this court must accept as a given in this case the proposition that defendant does not have a conviction arising out of the Perry County arson charge.

The Commonwealth argues that section 9760(3) does not apply to the present case on the basis that the Perry County and the Clinton County sentences were not multiple sentences. The Commonwealth predicates this argument on the proposition that they are not multiple sentences “according to the definition of same and the standard practice of what a multiple sentence would be.” The Commonwealth has cited no authority with respect to what it considers to be the definition of “multiple sentences,” which leaves the court in somewhat of a quandary in terms of evaluating whether defendant was serving multiple sentences in this particular case. The court has examined section 9702, which contains the definition section for the Sentencing Code, and notes that the term “multiple sentences” is not defined in that section.

[575]*575The Commonwealth next argues that “[obviously, it is not the intent of section 9760 . . . that the defendant be given credit for the sentence in another jurisdiction which has since been vacated.” On the contrary, the plain meaning of section 9760(3) requires

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Cite This Page — Counsel Stack

Bluebook (online)
9 Pa. D. & C.4th 570, 1991 Pa. Dist. & Cnty. Dec. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hebel-pactcomplclinto-1991.