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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EUGENE WILLIAM KEY, III :
:
Appellant : No. 599 WDA 2021
Appeal from the PCRA Order Entered May 11, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010331-2017
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: DECEMBER 20, 2021
Appellant, Eugene William Key, III, appeals from the May 11, 2021 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9542-9546. We vacate the order and, for the
reasons set forth infra, we vacate Appellant’s three judgments of sentence
and remand the cases to the trial court for resentencing in accordance with
this memorandum.
A review of the record demonstrates that on September 25, 2019,
Appellant pleaded guilty to persons not to possess, use, manufacture, control,
sell, or transfer firearms, 18 Pa.C.S.A. § 6105(a)(1), and to manufacture,
delivery, or possession with the intent to manufacture or deliver a controlled
substance, 35 P.S. § 780-113(a)(30), at trial court docket
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* Retired Senior Judge assigned to the Superior Court.
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CP-02-CR-0010331-2017 (“Case 10331-2017”). N.T., 9/25/19, at 3, 8. At
the same proceeding, Appellant also pleaded guilty to manufacture, delivery,
or possession with the intent to manufacture or deliver a controlled substance,
35 P.S. § 780-113(a)(30), at trial court docket CP-02-CR-0002916-2018
(“Case 2916-2018”), and the same criminal charge (35 P.S.
§ 780-113(a)(30)) at trial court docket CP-02-CR-0006076-2018 (“Case
6076-2018”). N.T., 9/25/19, at 2-3, 8. At Case 10331-2017, the trial court
imposed an aggregate sentence of three to six years’ incarceration in a state
correctional facility followed by five years’ probation.1 Order of Sentence,
9/25/19. The trial court awarded Appellant credit for 31 days of incarceration
at Case 10331-2017.2 Id.
At Case 6076-2018, the trial court imposed a sentence of three to six
years’ incarceration in a state correctional facility followed by five years’
probation; both the period of incarceration and the period of probation were
to run concurrently with the period of incarceration and the period of probation
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1Appellant was sentenced to three to six years’ incarceration followed by five
years’ probation for his firearms conviction, and he received a sentence of five
years’ probation for his possession with the intent to deliver conviction, which
was to run concurrently to the probation imposed on the firearms conviction.
See Order of Sentence, 9/25/19.
2The trial court awarded Appellant credit for time served as follows: June 24,
2017, to July 7, 2017 (14 days); May 11, 2018, to May 14, 2018 (4 days);
October 17, 2018, to October 29, 2018 (13 days). N.T., 9/25/19, at 14.
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imposed at Case 10331-2017, respectively. Id. at 15.3 The same sentence
was imposed at Case 2916-2018. Id. at 16. At Case 6076-2018, Appellant
received a credit of 346 days for time served,4 and, at Case 2916-2018, he
received a credit of 344 days for time served.5 Id. at 15-16.
Appellant did not appeal his judgment of sentence at Case 10331-2017.
As such, his judgment of sentence became final on October 25, 2019. See
42 Pa.C.S.A. § 9545(b)(3) (stating, “[a] judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of the time for seeking the review”); see also Pa.R.A.P. 903(a)
(requiring a notice of appeal to be filed within 30 days after entry of an order
from which an appeal is taken). On June 19, 2020, Appellant filed pro se a
“petition for correction of the record due to [a] clerical error” raising a claim
that the trial court failed to properly award credit for time served. See
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3 The trial court records and, in particular, the orders of sentence in Case
6076-2018 and Case 2916-2018, are not part of the certified record in the
instant appeal. Therefore, we rely on the notes of testimony from the
sentencing hearing to determine the sentences imposed in Case 6076-2018
and Case 2916-2018.
4 At Case 6076-2018, the trial court awarded Appellant credit for time served
as follows: January 31, 2018, to February 1, 2018 (2 days); October 17, 2018,
to September 25, 2019 (344 days). N.T., 9/25/19, at 15.
5 At Case 2916-2018, the trial court awarded Appellant credit for time served
for the period of October 17, 2018, to September 25, 2019 (344 days). N.T.,
9/25/19, at 16.
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Appellant’s Pro Se Petition, 6/19/20. The trial court properly treated
Appellant’s pro se petition as a PCRA petition. See Commonwealth v.
Hromek, 232 A.3d 881, 884 (Pa. Super. 2020) (holding that, regardless of
how a filing is titled, a petition should be treated as filed under the PCRA if it
is filed after the judgment of sentence becomes final and seeks relief provided
under the PCRA); see also 42 Pa.C.S.A. § 9543(a)(2)(vii) (providing
collateral relief under the PCRA based upon the “imposition of a sentence
greater than the lawful maximum”); Commonwealth v. Gibbs, 181 A.3d
1165, 1166 (Pa. Super. 2018) (holding that, a claim asserting that the trial
court failed to properly award credit for time served implicates the legality of
the sentence). The PCRA court appointed counsel to represent Appellant, and
an amended PCRA petition was filed on December 29, 2020.6
On May 5, 2021, the PCRA court notified Appellant, pursuant to
Pa.R.Crim.P. 907, of its intent to dismiss Appellant’s petition without a hearing
and provided Appellant 20 days in which to file a response. See PCRA Court
Rule 907 Notice, 5/5/21.7 On May 7, 2021, Appellant filed objections to the
PCRA court’s Rule 907 notice. The PCRA court subsequently dismissed
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6The Commonwealth filed an answer to Appellant’s amended PCRA petition
on January 29, 2021.
7 A review of the electronic record demonstrates that the PCRA court’s Rule
907 notice was timestamped May 11, 2021, and was identified as the final
order dismissing the PCRA petition. A review of the PCRA court docket,
however, demonstrates that the Rule 907 notice was filed on May 5, 2021.
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Appellant’s PCRA petition on May 11, 2021. PCRA Court Order, 5/11/21. This
appeal followed.8
Appellant raises the following issue for our review: Whether “[t]he PCRA
[c]ourt erred in denying relief, where [Appellant] was not awarded proper
credit for time served, resulting in an illegal sentence[?]” Appellant’s Brief at
4.
In addressing Appellant’s issue, we are mindful of our well-settled
standard and scope of review of a PCRA court’s dismissal of a PCRA petition.
Proper appellate review of a PCRA court’s dismissal of a petition is limited to
the examination of “whether the PCRA court’s determination is supported by
the record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted). “This Court grants great deference to the findings of the PCRA court,
and we will not disturb those findings merely because the record could support
a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140
(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s
legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).
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8 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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Here, Appellant claims the trial court imposed an illegal sentence
because it failed to properly award credit for time served. Appellant’s Brief at
11-14. Appellant contends he “is entitled to credit for all [the] time he spent
detained while awaiting sentencing on this case from October 17, 2018[,] up
to the date he entered his guilty plea and was sentenced on September 25,
2019.”9 Id. at 12. Appellant asserts that the trial court accepted the plea
agreement, which called for the sentences in his three cases to run
concurrently, but, then, the trial court awarded credit for time served from
October 17, 2018, until September 25, 2019, as part of the judgment of
sentence imposed in only two of the three cases, effectively rejecting the plea
agreement. Id. at 13. Appellant argues that “if his time already served is
only applied to [the judgments of sentence in Case 2916-2018 and Case
6076-2018], then his [judgment of] sentence in [Case 10331-2017] was not
fully concurrent, as [he] envisioned when accepting the plea.” Id.
In dismissing Appellant’s PCRA petition without a hearing, the PCRA
court explained,
[Appellant’s] claim is essentially that he did not receive credit for
the time between [October 30, 2018, and September 25, 2019].
[Appellant’s] time-credit claim lacks merit because he did receive
credit for that contested time period - it was just applied to the
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9 Appellant asserts that he is entitled to credit for time served as follows: 14
days for the period of June 24, 2017, to July 7, 2017; 4 days for the period of
May 11, 2018, to May 14, 2018; 344 days for the period of October 17, 2018,
to September 25, 2019. Appellant’s Brief at 13-14 (stating, “[t]he total award
of credit for time served as of the day of his sentencing should have been 362
days”).
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2018 cases [(Case 6076-2018 and Case 2916-2018)] that he was
sentenced for on the same day. Moreover, the sentences imposed
at [Case 6076-2018 and Case 2916-2018] were ordered to run
concurrently with the sentence imposed at [Case 10331-2017].
While he was certainly not entitled to double credit, [the trial]
court did exercise its discretion and awarded time credit
for the period he spent incarcerated between [October 30,
2018, and September 25, 2019,] at both the 2018 cases at
the time of sentencing. Accordingly, the record is clear that the
claimed period[-]of[-]time credit did not remain unaccounted for
and that [Appellant] received full credit for all [] the time he spent
incarcerated prior to sentencing. [Appellant] does not cite to any
legal authority in support of his claimed entitlement to triple
credit[,] and the law is clear that he is not entitled to duplicate
credit for unrelated charges, notwithstanding the concurrent
sentencing scheme.
PCRA Court Rule 907 Notice,10 5/5/20, at 2-3 (record citations and formatting
omitted, emphasis added).
Section 9760 of the Pennsylvania Sentencing Code governing how a trial
court applies credit for time served states, in pertinent part,
(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.
...
(4) 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
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10 The PCRA court relied upon the rationale set forth in its Rule 907 Notice in
lieu of a Rule 1925(a) opinion. See PCRA Court Order, 5/26/21.
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under the former charge that has not been credited against
another sentence.
42 Pa.C.S.A. § 9760(1) and (4). This Court has held that “a defendant shall
be given credit for any days spent in custody prior to the imposition of
sentence, but only if such commitment is on the offense for which sentence is
imposed. Credit is not given, however, for a commitment by reason of a
separate and distinct offense.” Commonwealth v. Richard, 150 A.3d 504,
520-521 (Pa. Super. 2016) (original quotation marks omitted), citing
Commonwealth v. Clark, 885 A.2d 1030, 1034 (Pa. Super. 2005). “While
in cases involving a multitude of offenses occurring in quick succession
determining which sentences a defendant is entitled to credit for presentence
detainment becomes more difficult, the general rule regarding the inquiry
seems simple enough - a defendant is entitled to credit only once for
presentence detainment.” Commonwealth v. Davis, 852 A.2d 392, 400
(Pa. Super. 2004) (emphasis added; citation omitted), appeal denied, 686
A.2d 1197 (Pa. 2005). When credit for time served is attributed equally to
more than one set of offenses and each set of offenses results in the imposition
of distinct sentences, the credit for time served may be applied to any one of
the sentences. Commonwealth v. Smith, 853 A.2d 1020, 1026 (Pa. Super.
2004), relying on Martin v. Pennsylvania Bd. of Prob. and Parole, 840
A.2d 299 (Pa. 2003).
Here, a review of record demonstrates that, at Case 10331-2017,
Appellant received a credit of, inter alia, 13 days for time served from October
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17, 2018, to October 29, 2018. N.T., 9/25/19, at 14. At Case 6076-2018,
Appellant received a credit for time served of, inter alia, 344 days for the
period of October 17, 2018, to September 25, 2019. Id. at 15. At Case
2916-2018, Appellant again received a credit for time served of 344 days for
the period of October 17, 2018, to September 25, 2019. Id. at 16. This
344-day credit, which was awarded at Case 6076-2018 and Case 2916-2018
(but not awarded at Case 10331-2017), included the 13-day period from
October 17, 2018, to October 29, 2018, that was awarded as a credit in Case
10331-2017. As such, Appellant received credit for the time served beginning
on October 17, 2018, and concluding on October 29, 2018 at three distinct
trial court dockets. This “triple credit” (as well as the “double credit”
awarded at Case 6076-2018 and Case 2916-2018) is prohibited both by
Section 9760 and the principle that credit is to be awarded for time spent in
custody for a particular offense and that credit cannot be awarded against
more than one sentence for the same time served. See
Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014).
Therefore, the PCRA court erred in dismissing Appellant’s petition raising an
illegal sentencing claim based upon the allocation of credit for time served.
As such, we vacate the order denying Appellant’s PCRA petition.
“[W]here an appellant limits his appeal to one particular illegal sentence
based upon one bill of information and does not appeal [other] sentences
based upon other bills of information [but] those sentences are part of a
common sentencing scheme[,]” an appellate court may vacate all of the
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sentences so the trial court can “restructure its entire sentencing scheme.”
Commonwealth v. Fields, 197 A.3d 1217, 1233 (Pa. Super. 2018), appeal
denied, 206 A.3d 1025 (Pa. 2019). Here, Appellant limited the instant appeal
to the judgment of sentence imposed at Case 10331-2017. A review of all
three of the trial court’s judgments of sentence demonstrates a common
sentencing scheme in which the trial court purposefully allocated credit for
time served across all three sentences imposed upon Appellant in a manner
contrary to the principles found in the sentencing code and our interpretive
appellate case law. Consequently, we vacate the judgments of sentence
imposed at Case 10331-2018, Case 2916-2018, and Case 6076-2018 and
remand these cases to the trial court for resentencing. On remand, Appellant
is entitled to credit for time served against only one of his sentences, and the
credit should be awarded for time spent in custody on a particular case or set
of offenses, if such a determination can be made. Where Appellant was
detained on more than one case or set of offenses, the trial court has
discretion to award a credit for time served against one of the sentences.
Order vacated. Judgments of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2021
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Com. v. Key, E.
Combined Opinion