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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 June 23, 2016
in the Court of Common Pleas of Perry County
Criminal Division at Nos.: 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.*
CONCURRING AND DISSENTING MEMORANDUM BY PLATT, J.:
FILED: APRIL 18, 2017
I respectfully concur in part and dissent in part.
I agree with the learned Majority on remand to the sentencing court
for a credit of ten days (for time served from January 17, 2014 to January
27, 2014). (See Majority at *3; see also Trial Court Opinion, 9/29/16, at
unnumbered page 3; Commonwealth’s Brief, at 4). I also agree that under
well-settled authority a claim of credit for time served challenges the legality
of sentence and cannot be waived.
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*
Retired Senior Judge assigned to the Superior Court.
J-S05015-17
However, I respectfully disagree with the Majority’s decision to let
Appellant present evidence regarding his claim of credit for an additional 133
days of time served. (See Majority, at *3).
Primarily, in my view, the trial court’s point-by-point explanation, for
each date range claimed, with docket numbers, of why Appellant is not
entitled to additional credit for time served, is more than sufficient to
dispose of Appellant’s claims. (See Trial Ct. Op., at unnumbered page 3).
Moreover, I would hold Appellant’s argument to be waived for failure
of development. See Pa.R.A.P. 2119(a), (b). Appellant merely makes the
bald assertion that “he was incarcerated a number of times on the same
charge to the tune of 133 days.”1 (Appellant’s Brief, at 12). Aside from
caselaw for general principles not in dispute, Appellant offers no authority in
support of his claims. (See id. at 10-12).
Also, I respectfully disagree with the learned Majority’s rationale. The
Majority justifies its remand for a new evidentiary hearing by stating that
“no evidence was presented at Appellant’s initial sentencing hearing
regarding his credit-for-time-served issue.” (Majority at 3).
The explanation for why no evidence was presented is simple. At
sentencing (after prior failures to appear), Appellant was seeking immediate
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1
Appellant had previously identified the enumerated date ranges. (See
Appellant’s Brief, at 10). The trial court responded to each date range
specified. (See Trial Ct. Op., at unnumbered page 3).
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work release. (See N.T. Sentencing, 6/23/16, at 3). Post-sentence, he
sought a sentence of time served and release on probation. (See Post
Sentencing Motion, 7/05/16). Apparently only after these efforts failed,
Appellant raised the time credit issue with his counsel.2
In any event, an appellant claiming credit for time served has the
burden to prove his entitlement to credit for any particular period. Appellant
may have avoided waiver once for his belated claim, but I see no
justification to give him a fourth bite of the apple because he declined to
develop the issue either at sentencing, in his post-sentence motion, or in his
appellate brief. Finally, giving Appellant credit for time served on unrelated
crimes would give him a windfall. “This Court does not deal in ‘volume
discounts.’” Commonwealth v. Hollawell, 604 A.2d 723, 726 (Pa. Super.
1992)
Accordingly, I respectfully concur in part and dissent in part.
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2
“Said credit was not referenced to [sic] at the re-sentencing as it was
presented to counsel after the fact.” (Appellant’s Brief, at 7).
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Com. v. Lauver, B.
Combined Opinion