Commonwealth v. Martz

• Decision Date: 17 April 2012
• Citation: 2012 PA Super 87,42 A.3d 1142
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Dereck MARTZ, Appellee.
• Court: Pennsylvania Superior Court

42 A.3d 1142

2012 PA Super 87

COMMONWEALTH of Pennsylvania, Appellant

v.Dereck MARTZ, Appellee.

Superior Court of Pennsylvania.

Argued March 13, 2012.

Filed April 17, 2012.

Christopher J. Schmidt, Assistant District Attorney, Harrisburg, for Commonwealth, appellant.

John McDanel, Berwick, for appellee.

BEFORE: STEVENS, P.J., PANELLA, J., and MUNDY, J.

OPINION BY STEVENS, P.J.

The Commonwealth appeals the Order entered in the Court of Common Pleas of Columbia/Montour County, which gave Appellee Dereck Martz credit for January 21, 2010 to August 12, 2011, when he was at liberty due to a clerical error. ¹ For the reasons discussed infra, we conclude the trial court erred in awarding credit for the time Appellee was erroneously at liberty. Thus, we vacate the trial court's sentencing order as it relates to credit for “time served” and remand with specific instructions. In all other respects, we affirm.

The relevant facts and procedural history are as follows: On June 22, 2005, a jury convicted Appellee on one count of indecent assault, 18 Pa.C.S.A. § 3126(a)(7), and one count of corruption of minors, 18 Pa.C.S.A. § 6301(a)(1), in connection with his sexual assault of an eleven-year-old girl. On February 22, 2006, the trial court sentenced Appellee to one year to four years in prison for indecent assault, and one year to four years in prison for corruption of minors, the sentences to run consecutively. Thus, Appellee's aggregate sentence was two years to eight years in prison. Additionally, the trial court found Appellee to be a sexually violent predator for Pennsylvania's Megan's Law III ² purposes.

On August 10, 2006, the trial court filed an amended sentencing order indicating Appellee's sentences were to run concurrently, resulting in a reduced aggregate sentence of one year to four years in prison. On direct appeal, this Court affirmed Appellee's conviction but held the trial court erred when it filed its amended sentencing order reducing Appellee's sentence. Commonwealth v. Martz, 926 A.2d 514 (Pa.Super.2007). Therefore, on June 25, 2007, upon remand, the trial court reinstatedAppellee's original sentence in which Appellee was to serve his sentences consecutively, thus resulting in an aggregate of two years to eight years in prison. However, after the trial court reinstated Appellee's original sentence, for unknown reasons, the Montour County Clerk of Courts failed to transmit the June 25, 2007 sentencing order to the Pennsylvania Department of Corrections (the DOC).

On January 18, 2008, Appellee filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–46. However, during the pendency of his petition, unaware Appellee's sentences were to run consecutively, the DOC released Appellee from custody on January 21, 2010, at the end of his maximum four-year “concurrent” sentence. That is, Appellee was not placed on parole; but rather, he was released from prison after he “maxed out” his August 10, 2006 sentence, which imposed concurrent sentences, as opposed to his reinstated June 25, 2007 sentence, which imposed consecutive sentences.

Believing Appellee was no longer eligible for relief since he was not “currently serving a sentence of imprisonment, probation, or parole for the crime,” 42 Pa.C.S.A. § 9543(a)(1)(i), the Commonwealth moved to dismiss Appellee's PCRA petition. On June 22, 2010, the PCRA court granted the Commonwealth's motion, thereby dismissing Appellee's PCRA petition without reaching the merits thereof. On July 12, 2010, Appellee filed a notice of appeal to this Court.

Subsequently, on August 11, 2011, the Commonwealth discovered the Clerk of Courts had failed to send the June 25, 2007 re-sentencing order to the DOC, and therefore, Appellee had been mistakenly released from prison before the completion of his sentence. As a result, the Commonwealth applied for a bench warrant, and, on August 12, 2011, Appellee was detained. On September 1, 2011, following a hearing,³ the trial court recommitted Appellee to serve the remainder of his sentence under the terms of the June 25, 2007 re-sentencing order. However, the trial court gave Appellee credit for “time served” from January 21, 2010, when he was mistakenly released from prison due to an apparent clerical error, until September 1, 2011, when he was recommitted to serve the remainder of his sentence.⁴ The Commonwealth filed a notice of appeal to this Court, arguing in its timely-filed court-ordered Pa.R.A.P. 1925(b) statement that the trial court imposed an illegal sentence on September 1, 2011, when it gave Appellee credit for “time served” while he was at liberty.⁵ In its Pa.R.A.P. 1925(a) opinion, in responding to the Commonwealth's issue, the trial court explained, in relevant part, the following:

In reviewing a series of cases, the [Pennsylvania] Commonwealth Court said that “[t]hese cases indicate that a prisoner has the right to serve a sentence continuously rather than in installments, but a continuous sentence may be interrupted by some fault of the prisoner.... The principle is applicable where prison authorities erroneously release a prisoner from prison and then deny the prisoner credit for the time spent outside of prison.” Forbes v. Pennsylvania Department of Corrections, 931 A.2d 88, 93 (Pa.Cmwlth.2007)[, affirmed,596 Pa. 492, 946 A.2d 103 (2008) ( per curiam ) ] (citations omitted). In this case, the prisoner was erroneously released due to no fault of his own, but due to a systemic clerical error. He had a right to serve his sentence continuously. Practically speaking, he is back in prison with almost two and one-half years left to serve on his maximum sentence, one of which will satisfy his minimum sentence.

Trial Court's Pa.R.A.P. 1925(a) Opinion filed 10/20/11 at 2–3.

On appeal, the Commonwealth's sole contention is that the trial court erred in giving Appellee credit for “time served” from January 21, 2010, when he was mistakenly released from prison due to a clerical error, until August 12, 2011, when Appellee was detained.⁶

Initially, we note that the Commonwealth presents a challenge to the legality of Appellee's sentence. See Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009). “[T]herefore, our task is to determine whether the trial court erred as a matter of law and, in doing so, our scope of review is plenary.” Commonwealth v. Maxwell, 932 A.2d 941, 943 (Pa.Super.2007).

The right to credit for time served is statutory in nature and arises from 42 Pa.C.S.A. § 9760, which provides, in relevant part, the following:

§ 9760. Credit for time served

[T]he 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.A. § 9760(1) (bold added). Thus, credit for time served is generally reserved for situations where the defendant is “in custody.” Commonwealth v. Stafford, 29 A.3d 800 (Pa.Super.2011). “Indeed, Pennsylvania appellate courts consistently have interpreted section 9760's reference to ‘custody’ as confinement in prison or another institution.” Commonwealth v. Maxwell, 932 A.2d 941, 944 (Pa.Super.2007) (citations omitted). Here, during the period in dispute, Appellee was in complete freedom, without any restrictions whatsoever. Thus, under Section 9760, Appellee was not “in custody” so as to receive credit for the time he was at liberty. See Commonwealth v. Kyle, 582 Pa. 624, 874 A.2d 12, 18 (2005) (holding the defendant was not entitled to credit for time spent on release pending appeal subject to electronic home monitoring since, under Section 9760, “in custody” means “time spent in an institutional setting”); Stafford, supra.

However, this does not end our inquiry, as the Pennsylvania Supreme Court has recognized that, in narrow circumstances, equitable factors may weigh in favor of giving credit. For example, in Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991), our Supreme Court concluded that, although a defendant who serves time on electronic home monitoring is generally not entitled to “credit for time served,” equitable considerations required the granting of credit. Specifically, the Supreme Court stated the following:

[The appellant] argues that ... he should ... be granted credit for the time he served in the electronic home monitoring program. [The appellant's] argument is based upon the Commonwealth Court's decision in Jacobs v. Robinson, 49 Pa.Cmwlth. 194, 410 A.2d 959 (1980). In Jacobs, a convict was inadvertently released from prison because of a clerical error in recording his sentence. Upon his release, he came under the supervision of probation authorities. When the error was discovered, the convict was taken back into custody. He was denied credit by prison authorities for the time he was at large in the community under supervision of probation authorities. The Commonwealth Court held, however, that credit towards his sentence must be afforded for the time that he was away from prison. It reasoned that a prisoner has a right to serve his sentence continuously rather than in installments, and that, inasmuch as the erroneous release was attributable to prison authorities rather than to any wrongdoing by the prisoner, the prisoner was entitled to credit for the time in question. We find this reasoning to be persuasive and, in the context of the present case, the considerations that favor granting credit are even stronger than in Jacobs.

Here, [the appellant's] release was the result of an erroneous understanding by prison authorities as to the manner in which a mandatory minimum sentence for driving under the influence of alcohol must be served. Before entering the...