Com. v. Bowser
| Decision Date | 11 September 2001 |
| Citation | 783 A.2d 348 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Richard G. BOWSER, Appellant. |
| Court | Pennsylvania Superior Court |
Richard G. Bowser, appellant, pro se.
Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellee.
Before: EAKIN, STEVENS and OLSZEWSKI, JJ.
¶ 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:
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?
¶ 3 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 While serving the probationary portion of the sentence, his probation was revoked because of another criminal conviction.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 incarcerative 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.
¶ 1 The majority opinion concludes that Commonwealth v. Williams, 443 Pa.Super. 479, 662 A.2d 658 (1995) is not controlling in this case, although it is directly on point. Thus, I must respectfully dissent.
¶ 2 Appellant argues that 42 Pa.C.S. § 9760(1) and (2) mandates that he should receive credit for any time served for the same offense based on the same act or acts. I am constrained to agree. In Williams, appellant received a sentence of eleven and one-half to twenty-three months' imprisonment and a consecutive term of three years' probation when he pled guilty to attempted theft by unlawful taking. See id. at 658. He served the minimum sentence and was released on parole, which was later revoked as a result of convictions for new crimes. See id. Appellant served the remainder of his twenty-three months, and his probation was continued. See id. Then, Appellant's probation was revoked after conviction of an additional crime. See id. Due to appellant's probation revocation, appellant was re-sentenced to three and one-half to seven years' imprisonment on the original conviction of theft by unlawful taking. See id. at 658-59. However, the sentencing court failed to credit appellant with the twenty-three months he had already served. See id. at 659. A panel of this Court vacated the sentence, and credited him with the time he had already served on the underlying offense. See id. The majority tries to distinguish Williams from the present case by focusing on the fact that Williams would have been serving a sentence exceeding statutory maximums if not credited for time served. I believe that to distinguish the case in this manner is to obfuscate the opinion of the Court. The Court did not merely reverse the judgment of sentence and remand the case for re-sentencing based on the fact that the cumulative sentence exceeded the statutory maximum. See Williams, 662 A.2d at 659
. Instead, the Court credited appellant for the entire period he had served for the single act of theft by unlawful taking. See id. In addition, the Court's argument focused almost entirely on calculating credit for time served. Thus, I am constrained to agree with appellant that he too must be credited for the entire period he has already served.
¶ 3 Our scope of review following probation revocation "is limited to the validity of the revocation proceeding and the legality of the final judgment of sentence." See Williams, 662 A.2d at 659
(citing Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336 (1990)). A challenge to the legality of a sentence is nonwaivable. See id. Section 9771(b) of the Sentencing Code states:
The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing, alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.
In addition, 42 Pa.C.S. § 9760 provides:
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