Com. v. Disanto, W. (memorandum)

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J-S30012-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WILLIAM FRANKLIN DISANTO, Appellant No. 2102 MDA 2013 Appeal from the Judgment of Sentence Entered October 25, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003584-2005 BEFORE: BENDER, P.J.E. MUNDY, J., and JENKINS, J. MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 19, 2014 Appellant, William Franklin DiSanto, appeals from the judgment of imposed after the revocation of his prior sentence of probation for the offense of corrupting a minor. Appellant solely challenges the legality of his sentence. After careful review, we affirm. The trial court set forth the procedural history of this case as follows: On November 15, 2005, [Appellant] pled guilty and pursuant to a negotiated plea agreement was sentenced as follows on one count of indecent assault of a person less than sixteen years of age and one count of corruption of minors: Following his first probation violation hearing on November [Appellant] was again found in violation of his probation on J-S30012-14 served to twentyby a period of th County Prison records, the time served from this second violation dated from September 13, 2009 through December 10, 2009 (approximately four months). [Appellant was released and served the remainder of his 23 month maximum sentence on parole. He then began serving his three year term of probation.] On October 25, 2013, [Appellant] was again found to be in violation of the terms of his probation. On that date, the [court] sentenced [Appellant] as follows: Corruption of Minors (M1)[:] Probation revoked, sentenced to eleven and one[-]half to twenty three months to be served at Lancaster County Prison, plus an additional two years of probation[.] Trial Court Opinion, 12/23/13, at 1-2 (unnumbered pages; footnotes omitted). Appellant filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises one issue for our review: of the first degree illegal because [Appellant] does not have 47 months of eligible time remaining to serve because he successfully completed the parole portion of his second violation sentence? See Commonwealth v. Foster, 17 A.3d 332, 336 (Pa. 2011) (citation ma -2- J-S30012-14 to whether the trial court imposed an illegal sentence is a question of law; Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa. Super. 2010) (citation omitted). probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). served while incarcerated on the original sentence unless the court imposes a new sentence that would resul Commonwealth v. Infante, 63 A.3d 358, 367 (Pa. Super. 2013) (citations and internal quotation marks omitted). revoke incarcerated for a portion of the 23 month maximum sentence, and was on parole for the remainder. Appellant contends on appeal that he is entitled to credit for all 23 months of this split sentence, despite the fact that he was on parole for the majority of it. He then asserts that his current sentence, when combined with his credit for 23 months of time served, exceeds the corruption of a minor. See 18 Pa.C.S. § 6301(a)(1)(i) (classifying -3- J-S30012-14 corruption of minors as a misdemeanor of the first degree); 18 Pa.C.S. § 106(b)(6) (stating a person convicted of a misdemeanor of the first degree 42 Pa.C.S. § 9760, which states, in pertinent part: After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows: (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. (2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts. 42 Pa.C.S. § 9760(1)-(2) (emphasis added). In Commonwealth v. Kyle, 874 A.2d 12 (2005), our Supreme Court Id. at 22. The Kyle -4- J-S30012-14 in an institutional setting such as, at a minimum, an inpatient alcohol Id. at 18 (citations omitted; emphasis added).1 Since Kyle, this Court has reiterated that, credit for time served is generally reserved for situations where Commonwealth v. Stafford, 29 courts consistently have interpreted section 9760's reference to confinement in prison or another institution Commonwealth v. Maxwell, 932 A.2d 941, 944 (Pa. Super. 2007) (citations omitted)). Commonwealth v. Martz, 42 A.3d 1142, 1145 (Pa. Super. 2012) (emphasis added). In this case, Appellant does not claim that he was subject to house arrest or placed in an institutional setting while serving his term of parole. Consequently, under the rationale expressed in Kyle subsequent cases, we conclude that Appellant is not entitled to credit for the - combined with his credit for time served from September 13, 2009, through December 10, 2009 (approximately four months) - does not exceed the statutory Judgment of sentence affirmed. ____________________________________________ 1 The Court did note that exceptions to the rule disallowing credit for time deemed to require it, such as when a defendant was assured that his time spent on electronic monitoring w Kyle, 874 A.2d at 18 (citation omitted). -5- J-S30012-14 Judge Jenkins concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/19/2014 -6-

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