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Melhorn v. Pennsylvania Board of Probation and Parole9/30/2005
s disfavored by the Supreme Court in Martin.
The Court, in Martin, specifically held that "where an offender is incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or the original sentence." Id. at 605, 840 A.2d at 309 (footnote omitted)(emphasis added). The Court also explained that there are particular considerations that require exercise of the court's discretion:
onsiderations relevant to the award of credit are just and equitable in nature. Unique combinations of circumstances will be presented in different cases that tip the balance for or against the particular allocation of credit. Decision making in this context is, thus particularly suited to a discretionary framework with guidelines to ensure equitable treatment.
Id. at 604, 840 A.2d at 308.
The Board does not argue that Melhorn should not get credit for the time he served. However, at this time, it is not practical for him to receive credit on his new sentence, as he is already on parole for that sentence.
The Board argues that we should not give effect to an illegal order, and that the trial court should have credited the pre-sentence time against his new sentence. This Court had, in its prior opinion, stated to Melhorn that he would receive credit for the time he spent in custody from August 19, 2003 to January 30, 2004 (presentence time), and the only way that can happen now is to credit it against his original sentence as he requests.
Accordingly, for the foregoing reasons, we must reverse the order of the Board and remand to the Board for a re-calculation of the maximum term of Melhorn's original sentence in accordance with this opinion.
ORDER
NOW, September 30, 2005, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby reversed and this matter is remanded for further proceedings consistent with the attached opinion.
Jurisdiction relinquished.
RENÉE COHN JUBELIRER, Judge
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