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HomeMy WebLinkAboutCP-21-CR-2362-2005 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KEVIN SHUGHART CP-21-CR-2362-2005 IN RE: POST-SENTENCE MOTION OPINION AND ORDER OF COURT Bayley, J., November 2,2006:-- Defendant, Kevin Shughart, filed a post-sentence motion seeking credit against sentences imposed on October 3, 2006, at 2362-2005. If a sentence of imprisonment is illegal because it does not include credit for which a defendant is statutorily entitled, one of the remedies is a post-sentence motion. See McCray v. Pennsylvania Department of Corrections, 872 A.2d 1127 (Pa. 2005). 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 of 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.) On October 3, 2006, defendant was sentenced, (1) for driving under the influence, a misdemeanor in the 15t degree, to pay a fine of $2,500 and undergo imprisonment in a state correctional institution for a term of not less than one year or more than two years, to date from that date,1 and (2) for driving under suspension, DUI related, a misdemeanor in the 3rd degree, to pay a fine of $1,000, and undergo imprisonment of not less than six months or more than one 1 This was a mandatory minimum sentence for this third offense (4th lifetime). CP-21-CR-2362-2005 year, to date from that date and to run concurrent with the sentence on driving under the influence? Defendant maintains that he is entitled to credit from October 12, 2005 to April 10, 2006, and from May 13, 2006, until he was sentenced on October 3, 2006. On January 6, 2004, at 1374-2003 defendant was sentenced for simple assault to not less than three month or more than 23 months, with 13 days credit. He was paroled on March 9, 2004, after serving 77 days which included the 13 days credit. On June 14, 2005, he was recommitted as a parole violator. On August 2, 2005, his parole was revoked, without credit for street time, and with credit from June 14, 2005. He was re-paroled on August 25, 2005, after serving a total of 73 days. On September 13, 2005, he was again recommitted as a parole violator. On October 4, 2005, his parole was revoked, without credit for street time. He was re-paroled on April 13, 2006, after serving a total 213 days from September 13, 2005. On October 12, 2005, at 2632-2005, defendant was arraigned on the within driving under the influence and driving under suspension, DUI-related charges. He posted bail on April 10, 2006. On May 13, 2006, at 1437-2006, he was arrested for flight to avoid apprehension. On the same date, at 1374-2003, he was recommitted again as a parole violator. On October 3, 2006, his parole was revoked, without credit for street time, and with credit from May 13, 2006. After serving a total 144 days, he was re-paroled for the balance of his 2 On the same date, he was sentenced at 1437-2006, for flight to avoid apprehension, to pay the costs of prosecution. -2- CP-21-CR-2362-2005 remaining term.3 Section 9760(4) of the Judicial Code provides: If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence. (Emphasis added.) In Wassell v. Commonwealth, 658 A.2d 466 (Pa. Commw. 1995), the Commonwealth Court of Pennsylvania stated that Section 9760(4): . . . makes it clear that time credit on a sentence can only be given when it has not already been credited against another sentence. There is simply no statutory provision that would permit a sentencing judge to either commence a second sentence retroactively, i.e., to have it commence at the same time as a prior sentence, or to provide credit for time served on a prior unrelated charge. When defendant was sentenced on October 3, 2006, for driving under the influence and for driving under suspension, all of the periods of time for which he seeks credit had been credited against his sentence at 1374-2003. Thus, he was not entitled to any credit on these sentences. Defendant further avers in his post-sentence motion: 3 As of October 3, 2006, defendant served a total of 507 days at 1374-2003 on the simple assault charge. January 6, 2004 to March 9, 2004, with 13 days credit (77 days). June 14, 2005 to August 25, 2005 (73 days). September 13, 2005 to April 13, 2006 (213 days). May 13, 2006 to October 3, 2006 (144 days). He lost the following street time totaling 508 days: March 10, 2004 to June 13, 2005 (461 days). August 26, 2005 to September 12, 2005 (18 days). April 14, 2006 to May 12, 2006 (29 days). His maximum sentence does not expire until April 27, 2007, (January 6, 2004 to December 5, 2005 (23 months), plus 508 days of lost street time). -3- CP-21-CR-2362-2005 Due to lengthy discussion regarding credits, defendant was not provided the opportunity to address other sentencing considerations favorable to the defendant's position on sentencing and would like the opportunity to present same to the court for consideration as well. An examination of the sentencing colloquy belies this averment. The statement made on behalf of defendant by his counsel and defendant's statement on his own behalf covers two and one-half pages of the transcript. A full opportunity was provided to counsel and defendant to state their positions, which they did. ORDER OF COURT AND NOW, this day of November, 2006, the post-sentence motion of defendant, IS DENIED. By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire For the Commonwealth Susan K. Pickford, Esquire For Defendant :sal -4- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KEVIN SHUGHART CP-21-CR-2362-2005 IN RE: POST-SENTENCE MOTION ORDER OF COURT AND NOW, this day of November, 2006, the post-sentence motion of defendant, IS DENIED. By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire For the Commonwealth Susan K. Pickford, Esquire For Defendant :sal