Com v. Puppo, J., Com v. Puppo, J. No. 3136 EDA 2016

In 2014 Puppo was serving a probationary sentence (VOP) at docket CR-200-2011 for unlawful sale of a firearm when he incurred new criminal charges (CR-1138-2014).
Puppo waived a Gagnon II hearing and received a VOP sentence of 6–12 months, deemed to commence November 3, 2014.
On May 13, 2015 (after Puppo’s VOP minimum expired), a probation officer, Joseph Bettine, visited Puppo in jail; Puppo told Bettine he wanted to serve the maximum of his VOP sentence because he expected not to be released on the new charges.
As a result Puppo did not apply for or receive parole and remained in custody from May 3, 2015 to November 5, 2015; he later pled guilty to aggravated assault in CR-1138-2014 and was sentenced June 2, 2016 to 15–30 months plus one year state probation, with 210 days credit awarded.
Puppo sought an additional 187 days’ credit (May 3–Nov 5, 2015) against the aggravated-assault sentence; the trial court denied that request (but granted consideration for boot camp) and Puppo appealed.

Issue	Puppo’s Argument	Commonwealth’s Argument	Held
Whether Puppo was entitled to 187 days’ credit (May 3–Nov 5, 2015) on his aggravated-assault sentence	Time in custody during that period should be credited to the new sentence	Time served during that period was custody on an unrelated VOP sentence (no parole); court lacked authority to credit it to the new sentence	Denied: court lacked authority to credit time that was served solely on an unrelated VOP sentence because Puppo was not paroled during that period
Whether Puppo’s claim was waived by procedural defects (late Rule 1925(b) statement)	Claim should be considered on appeal	Commonwealth argued waiver due to untimeliness	Not waived: claim implicates legality of sentence and is reviewable despite procedural lapse
Whether resentencing was required under these circumstances	Puppo sought resentencing if credit issue unresolved	Commonwealth opposed resentencing absent entitlement to additional credit	Denied: no resentencing warranted because no legal authority to award the requested credit
Eligibility for other post-sentence programs (RRRI, intermediate punishment, boot camp)	Requested credit and reconsideration for programs	Trial court denied RRRI and intermediate punishment but granted boot camp consideration	Trial court partially granted relief (boot camp) and denied other program requests

Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (probationer entitled to pre-revocation and final revocation hearings)
Martin v. Pennsylvania Board of Probation & Parole, 840 A.2d 299 (Pa. 2003) (time incarcerated on probation detainer must be credited to either original or new sentence)
Infante v. Commonwealth, 63 A.3d 358 (Pa. Super. 2013) (credit for days in custody only if commitment is on the offense for which sentence is imposed)
Wassell v. Commonwealth, 658 A.2d 466 (Pa. Cmwlth. 1995) (sentencing court lacks authority to award credit for time served on prior, unrelated charges)
Hollawell v. Commonwealth, 604 A.2d 723 (Pa. Super. 1992) (purpose of credit statute is to give defendants credit for time spent in custody prior to sentencing for that offense)
Eisenberg v. Commonwealth, 98 A.3d 1268 (Pa. 2014) (claims implicating legality of sentence are not waivable and are reviewable)
Foster v. Commonwealth, 960 A.2d 160 (Pa. Super. 2008) (challenges to legality of sentence are appealable as of right and not subject to waiver)
Leverette v. Commonwealth, 911 A.2d 998 (Pa. Super. 2006) (standard of review when evaluating a trial court’s application of statute is plenary)