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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL BRANCE MCCRAY :
:
Appellant : No. 1453 WDA 2018
Appeal from the Judgment of Sentence Entered July 25, 2018
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0002022-2016
BEFORE: OLSON, J., OTT, J., and COLINS, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 9, 2019
Michael Brance McCray appeals from the judgment of sentence imposed
on July 25, 2018, following entry of his nolo contendere plea to Attempted
Homicide.1 McCray received a sentence of six to 16 years’ incarceration, with
credit for time served prior to his plea. McCray filed a timely post-sentence
motion seeking credit for additional time served; specifically time he spent on
bail, in home confinement with an ankle monitor. The trial court denied the
motion on September 6, 2018. This timely appeal followed. McCray claims
the trial court erred in denying him credit for the time he spent prior to trial
on home detention. After a thorough review of the submissions by the parties,
relevant law, and the certified record, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901/2501(a).
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In this appeal, McCray challenges the legality of his sentence.
Accordingly,
“When reviewing the legality of a sentence, our standard of
review is de novo and our scope of review is plenary.”
Commonwealth v. Seskey, 170 A.3d 1105, 1107 (Pa. Super.
2017). Where a sentence is found to be illegal, it must be vacated.
Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014).
Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019).
In denying McCray relief, the trial court succinctly noted there is no
credit for time served when the defendant is on bail and subject to electronic
monitoring. See Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005). The
Kyle decision specifically abrogated the case-by-case approach to such
determinations from Commonwealth v. Chiappini, 782 A.2d 490 (Pa.
2001), and disapproved of the application of the case-by-case approach as
exemplified in Commonwealth v. Vanskiver, 819 A.2d 69 (Pa. Super. 2003)
(en banc). Our Supreme Court stated:
Today, we make clear that time spent on bail release, subject to
electronic monitoring, does not qualify as custody for purposes
of Section 9769 credit against a sentence of incarceration. As
this author [Justice Castille] noted in Chiappini:
[T]he reality here is that [Chiappini] was subject to the
home confinement/electronic monitoring program as a
condition of his release on bail. Bail is neither a form of,
nor in any way synonymous with, custody or
imprisonment; rather it is a form of release from
custody.
[Chiappini], at 503 (Castille, J. concurring and dissenting).
Commonwealth v. Kyle, 874 A.2d at 638.
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McCray analogizes his situation to Commonwealth v. Wegley, 829
A.2d 1148 (Pa. 2003), wherein the Supreme Court determined a person
subjected to electronic monitoring on house arrest as part of sentence, was
considered to be detained for purposes of the application of a charge of
escape. This reliance is unavailing.
First, Wegley’s electronic monitoring was part of his sentence; he was
not subjected to electronic monitoring as a condition of pre-trial bail. The two
situations are, therefore, distinguishable. The Kyle decision considered
Wegley in distinguishing between electronic monitoring for pre-trial bail and
actual sentence.2 Kyle set forth a bright line rule forbidding credit for time
served for pre-trial electronic monitoring. Second, the Kyle decision post-
dates Wegley by almost two years. Our Supreme Court could well have
applied Wegley as suggested by McCray, but it did not. Third, and finally, to
the extent McCray’s argument can be seen as a plea to return to a case-by-
case review, as noted above, that approach has been specifically rejected by
Kyle.
In light of the above, we find no error of law in the trial court’s denial of
McCray’s post-sentence motion seeking credit for time served while on
electronic monitoring as part of pre-trial bail.
Judgment of sentence affirmed.
____________________________________________
2 Kyle, 874 A.3d at 630-31.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2019
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