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Kennedy v. Pennsylvania Dep't of Corrections10/4/2005
ion, and received a VOP sentence of 2 to 4 years for each count of aggravated assault and criminal conspiracy, followed by 5 years of probation. The original sentence, when combined with the VOP sentence, did not approach the statutory maximum for three counts of aggravated assault when graded as first degree felonies. The Supreme Court held that in cases where the VOP sentence, combined with the original sentence, does not exceed the statutory maximum for the underlying offense, the petitioner has not demonstrated a clear legal right to mandamus relief for credit for time served.
In Williams, the original and VOP sentence exceeded the statutory maximum of confinement for the crime. In that case, the Superior Court determined that the inmate was entitled to receive credit against the VOP sentence for time served on the original sentence.
In the present case, it is not clear whether Kennedy's VOP sentence on the DUI charge at docket number 81 of 2000 is in violation of the principles of McCray and Williams. From the record, we cannot discern whether Kennedy's sentence at 81 of 2000 is indeed his first violation of former Section 3731 of the Vehicle Code, 75 Pa. C.S. §3731, relating to driving under the influence of alcohol or a controlled substance. It would appear not, in that a first offense for a violation of Section 3731 was graded as a misdemeanor of the second degree and called for a penalty of not more than 2 years imprisonment. Kennedy's VOP sentence called for a maximum of 21/2 years imprisonment. See 18 Pa. C.S. § 106(b); 75 Pa. C.S. § 3731(e). If, in fact, Kennedy's September 2000 DUI was his first offense, it would appear that his original sentence and VOP sentence exceeded the statutory maximum of two years. If, however, Kennedy's September 2000 DUI offense was his third or subsequent offense, the offense would have been a misdemeanor of the third degree allowing for maximum imprisonment not to exceed 5 years. Id. Without this clarification, we cannot determine whether Kennedy is entitled to the credit of 329 days.
Accordingly, we deny the Department's Application for Suggestion of Mootness.
Judge Simpson concurs in the result only.
ORDER
AND NOW, this 4th day of October, 2005, the Application for Suggestion of Mootness filed by the Pennsylvania Department of Corrections is DENIED.
JESS S. JIULIANTE, Senior Judge
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