Commonwealth v. Yakell6/3/2005
1 Appellant, Todd Yakell, appeals the order of May 26, 2004, granting in part and denying in part his petition under the Post Conviction Relief Act.
On appeal, appellant claims that the PCRA court erred in not finding him entitled to credit for time served on his sentence. We reverse and remand for clarification and/or re-sentencing.
2 The relevant factual history is as follows. On January 8, 2002, appellant pled guilty to one count of driving under the influence , third offense, graded as a misdemeanor of the first degree, and driving during suspension, DUI related. Lower Court Opinion, 8/10/04, at 1. On February 25, 2002, appellant was sentenced to a term of imprisonment of three to eighteen months, followed by twelve months of probation, with a credit of eighty-six days for time served. Sentence, 2/27/02, at 1-2. Due to the combination of this credit as well as the time served by appellant on his sentence after his sentencing, following appellant's drug and alcohol evaluation (a requirement for appellant's parole eligibility), he was released on parole on April 2, 2002. Sentence, 2/27/02, at 2; Lower Court Opinion, 8/10/04, at 2. While on parole, appellant was arrested and pled guilty to a new charge in the State of Ohio. Lower Court Opinion, 8/10/04, at 2. Following Yakell's Gagnon hearings, on May 23, 2002, the parole and probation for his DUI conviction were revoked. Id. Appellant was re-sentenced on June 24, 2003. Docket Report, at 4. At this sentencing hearing, the sentencing court noted that appellant was entitled to credit for time served on the prior portion of his sentence. N.T. 6/24/03, at 4. The sentencing court then sentenced appellant to a term of imprisonment of twelve to twenty-four months, with credit for time served of nine days from December 5, 2000, to December 13, 2000; seventy-eight days from December 10, 2001, to February 25, 2002; and forty-two days from May 13, 2003, to June 23, 2003. Id. at 8.
3 Appellant thereafter filed a timely petition under the PCRA seeking credit for time served for the periods of February 26, 2002, to April 2, 2002, and April 17, 2003, to May 12, 2003. Lower Court Opinion, 8/10/04, at 2. The PCRA court determined that appellant was entitled to a total of one hundred fifty-five days of credit for time served, which included the one hundred twenty-nine days from the periods listed by the sentencing court and the twenty-six days for the April 17, 2003, to May 12, 2003, period. Docket Report, at 5. The PCRA court found appellant not entitled to the thirty-six days for the February 26, 2002, to April 2, 2002, period. Id. This appeal follows.
4 Appellant challenges the PCRA order, which granted part of his petition and denied part of his petition. The PCRA court, as noted, granted appellant's petition with regard to a credit for the period of time from April 17, 2003, to May 12, 2003, but denied appellant's petition with regard to a credit for the period of time from February 26, 2002, to April 2, 2002. Our review of a PCRA court's grant or denial of relief "is limited to determining whether the court's findings are supported by the record and the court's order is otherwise free of legal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa.Super. 1996).
5 Appellant claims that the PCRA court "erred in dismissing PCRA petition without a hearing based on [appellant's] claim that he was entitled to credit time on his sentence for his probation violation." Appellant's Brief, at 3. Specifically, appellant claims that 42 Pa.C.S.A. § 9760; our holding on Commonwealth v. Williams, 662 A.2d 658 (Pa.Super. 1995); and the double jeopardy clause of the Fifth Amendment of the United States Constituti
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