Com. v. Lauver, B. ( 2017 )

J-S05015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN LEE LAUVER,
Appellant No. 1228 MDA 2016
Appeal from the Judgment of Sentence Entered June 23, 2016
In the Court of Common Pleas of Perry County
Criminal Division at No(s):
CP-50-CR-0000006-2013
CP-50-CR-0000042-2013
CP-50-CR-0000186-2011
CP-50-CR-0000187-2011
CP-50-CR-0000407-2009
CP-50-CR-0000409-2009
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 18, 2017
Appellant, Brian Lee Lauver, appeals from the judgment of sentence of
11 to 23 months’ incarceration, followed by 2 years’ probation, imposed
after he violated a prior term of probation. Appellant solely argues on
appeal that the trial court erred by not giving him credit for 133 days of
pretrial incarceration. After careful review, we vacate Appellant’s judgment
of sentence and remand for resentencing.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S05015-17
On October 17, 2011, Appellant pled guilty to one count of receiving
stolen property, 18 Pa.C.S. § 3925(a). He was sentenced on November 3,
2011, to a term of 3 years’ probation for that offense. Appellant
subsequently violated the terms of his probation by failing to pay restitution
to the victim. On June 23, 2016, the trial court revoked Appellant’s
probation and resentenced him to 11 to 23 months’ incarceration, followed
by 2 years’ probation. The court directed that Appellant receive credit for
time served from June 8 to June 23 of 2016. N.T. Sentencing Hearing,
6/23/16, at 7.
Appellant filed a timely post-sentence motion, asserting that “his
sentence was harsh[,]” and requesting to be resentenced “to time served
and probation.” Post-Sentence Motion, 7/5/16, at 1. On July 7, 2016, the
trial court denied Appellant’s post-sentence motion. He then filed a timely
notice of appeal, as well as a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The trial court filed a Rule 1925(a) opinion, dated
September 29, 2016. Herein, Appellant raises one issue for our review,
arguing that the trial court erred by not giving him “credit for previous times
that he was incarcerated for [probation] violations[.]” Appellant’s Brief at 6.
Preliminarily, the trial court concludes that Appellant has waived his
sentencing claim by not raising it orally at the sentencing hearing, or in his
post-sentence motion. See Trial Court Opinion (TCO), 9/29/16, at 2
(unnumbered). However, this Court has declared that, “[a]n attack upon
the court’s failure to give credit for time served is an attack upon the legality
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of the sentence and cannot be waived.” Commonwealth v. Davis, 852
A.2d 392, 399 (Pa. Super. 2004). Accordingly, the trial court’s waiver
analysis is erroneous, and we will review the merits of Appellant’s sentencing
claim.
Briefly, Appellant avers that he is entitled to credit for a total of 133
days of time he spent incarcerated prior to the revocation/resentencing
hearing in this case. Appellant lists specific dates during which he was
allegedly imprisoned in this case, including from January 17 to January 27 of
2014. The trial court and the Commonwealth agree that Appellant must be
credited for the 10 days spanning those dates. See TCO at 3
(unnumbered); Commonwealth’s Brief at 4. Accordingly, we vacate
Appellant’s judgment of sentence and remand for a resentencing hearing, at
which the court shall give Appellant credit for the time he served from
January 17 to January 27 of 2014.
Regarding the various other date-ranges to which Appellant claims he
is entitled credit, the trial court concludes that those “periods of
incarceration are attributable to Appellant’s other cases.” TCO at 3. The
record currently before us does not permit us to determine whether this
conclusion by the trial court is correct, as no evidence was presented at
Appellant’s initial sentencing hearing regarding his credit-for-time-served
issue. Thus, we direct that at the resentencing hearing, the court permit
Appellant to present evidence to support his claim that he is entitled to
credit for the other periods of incarceration that he asserts herein.
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J-S05015-17
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Panella joins this memorandum.
Judge Platt files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
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