HomeMy WebLinkAbout96-1403 criminalCOMMONWEALTH
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
SCOTT A. OHLER : 96-1403 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF
APPELLATE PROCEDURE 1925
Bayley, J., March 30, 1999:--
On December 22, 1998, while represented by private counsel, defendant,
Scott A. Ohler, entered a plea of guilty to a count of unlawful possession with intent to
deliver a schedule I controlled substance, a felony of the first degree punishable by a
maximum term of imprisonment of twenty years.~ Pursuant to a plea agreement and
a waiver of a presentence investigation report, defendant was immediately sentenced
to undergo imprisonment in a state correctional institution for a term of not less than
five years nor more than ten years to date from December 22, 1998, and to run
concurrent with any other sentences being served.
On January 21, 1999, defendant with court-appointed counsel filed a direct
appeal from the judgment of sentence to the Superior Court of Pennsylvania. In a
concise statement of matters complained of on appeal, defendant alleges:
1. Trial counsel rendered ineffective counsel in failing to request
the Court to commence his sentence from his date of arrest in this case
of June 11, 1996 rather than the sentencing date of December 22, 1998.
2. Trial counsel rendered ineffective counsel in failing to request
a modification of sentence as Mr. Ohler requested trial counsel to do
thereby failing to request reconsideration of the imposition of sentence
at the date of sentencing rather than the date of arrest.
1. 35 Pa.C.S. § 780-113(a)30. Defendant admitted that he possessed with
intent to deliver 81.8 grams of cocaine.
96-1403 CRIMINAL TERM
3. The Sentencing Court abused its discretion in failing to
commence sentence on the date of sentencing rather than the date of
arrest.
On May 21, 1994, in the Court of Common Pleas of Cumberland County,
defendant at 1130 Criminal 1993, was sentenced on a count of unlawful delivery of a
schedule II controlled substance to undergo imprisonment in a state correctional
institution for not less than three years nor more than six years, to date from June 18,
1993. On June 11, 1996, defendant was in a halfway house on pre-release status on
this sentence. He was not on parole. On that date he was arrested on drug charges
in Dauphin County. On July 31, 1996, he was arrested on the within drug offense in
Cumberland County which he also committed while he was on pre-release status.
On September 5, 1997, defendant was sentenced on his drug offenses in
Dauphin County to undergo imprisonment in a state correctional institution for a term
of not less than eleven years or more than forty years consecutive to the Cumberland
County sentence imposed on May 21, 1994, that defendant was still serving. On
December 22, 1998, when defendant was sentenced on the within case to undergo
imprisonment in a state correctional institution for a term of not less than five years
nor more than ten years from that date, and to run concurrent with any other
sentences being served. The other sentences being served at that time were the May
21, 1994 Cumberland County sentence and the September 5, 1997 Dauphin County
sentence which together had an aggregate of not less than fourteen years or more
than forty-six years.
-2-
96-1403 CRIMINAL TERM
The Judicial Code at 42 Pa.C.S. Section 9760(1) provides:
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. (Emphasis added.)
When defendant was sentenced on December 22, 1998, to a concurrent five to
ten year term effective that date, defendant had not spent any time in custody as a
result of this criminal charge because at all times since the date of his arrest on July
31, 1996, he was in custody on his prior convictions. A defendant may receive credit
once for time served before sentencing. Commonwealth v. Merigris, 452 Pa. Super.
78 (1996). Defendant was not entitled to any credit and to have imposed it would
have been an illegal sentence.
(DATE)
Jaime Keating, Esquire
For the Commonwealth
James K. Jones, Esquire
For Defendant
Ed~"~r B. Bayle~
:saa
-3-