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Commonwealth v. Yakell6/3/2005
original sentence.
12 The question, however, is what the sentencing court actually intended to do in this case. The practical applications of Williams and Bowser are not necessarily clear in the best of circumstances. And, neither Williams nor Bowser is entirely on point in the instant matter. Though Williams seems to espouse the view that § 9760 requires credit for time served to be given in circumstances such as this, and even more so when not crediting the time would render a sentence illegal, no concerns of an illegal sentence are implicated here, where appellant's original sentence and new sentence, combined, fall below the statutory maximum. At the same time, although Bowser embraces the position that § 9760 does not require a double credit for time served to be given in matters such as this, particularly when the original and new sentences combined are below the statutory maximum, unlike the situation in Bowser, no clear double counting of time served is involved in the instant matter.
13 Here, it seems that the sentencing judge attempted, in accordance with the spirit of Williams as further articulated in the Bowser dissent, to delineate in the sentence the portions of time served for which appellant would be credited. Later relying on Bowser, however, the lower court stated that no credit for the February 26, 2002, to April 2, 2002, portion was due. The record in this matter does not demonstrate a clear intention by the sentencing court. On one hand, the sentencing court stated, "I believe . . . I have to give him credit, even time served on the prior portion of the sentence." N.T., 6/24/03, at 4. In so stating, the lower court eventually granted credit for the 26-day period from April 17, 2003, to May 12, 2003, but not for the similar 36-day period from February 26, 2002, to April 2, 2002. On the other hand, in referring to the 36-day period, the court cited Bowser for the proposition that there was no requirement to give "double credit" for that time.
14 While we have demonstrated that it is possible for a sentencing court to "split time" in this manner, given the conflicting rationales used by the lower court for giving and denying credit for time served, it is not clear that the court realized that it had this power and was intentionally exercising that discretion, or if the court was simply caught in the admittedly confusing practical applications of Bowser and Williams. Therefore, we vacate the sentence and remand this matter for re-sentencing. If the sentencing court intended to provide full credit for time served, the sentencing court may issue a revised sentence reflecting credit for all prior time served. If the sentencing court intended to give split credit for time served, it may reissue the sentence previously imposed. In the future, in order to prevent confusion such as happened in this matter, the trial court, when re-sentencing after revocation of parole or probation, should state on the record whether or not the new sentence is inclusive of the original sentence and formulate and furnish the new sentence accordingly.
15 Order REVERSED, sentence VACATED. This matter is REMANDED for re-sentencing consistent with this opinion. Jurisdiction relinquished.
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