J-S49021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

COREY ALLEN DUFFIELD

Appellant No. 479 MDA 2018

Appeal from the Judgment of Sentence imposed February 2, 2018

In the Court of Common Pleas of Centre County

Criminal Division at No: CP-14-CR-0001458-2017

BEFORE: SHOGAN, STABILE, JJ., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STABILE, J.: FILED NOVEMBER 30, 2018

Appellant, Corey Allen Duffield, appeals from the February 2, 2018 

judgment of sentence imposing 90 days of incarceration for driving on a 

suspended license1followed by five years of intermediate punishment for 

driving under the influence of a controlled substance2 (“DUI”). We vacate and 

remand. 

On August 29, 2017, Appellant was arrested in Centre County for the 

instant offenses and detained for a violation of his parole on two Clinton 

County DUI sentences. Appellant was incarcerated because he was unable to 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1

 75 Pa.C.S.A. § 1543 (this statute has been amended effective October 20, 

2018). 

2

 75 Pa.C.S.A. § 3802(d). 
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post bail. On January 29, 2108, his Clinton County parole was revoked. 

Instantly, the trial court did not give Appellant credit for his pre-sentence 

confinement. At the hearing on Appellant’s post-sentence motion, the Centre 

County Specialty Court Coordinator testified that she believed the Clinton 

County authorities adjusted the expiration date of Appellant’s maximum term

to account for the time he served on the detainer. N.T. Post-Sentence Motion, 

2/20/18, at 7-8. As it is unclear from the record whether that occurred, the 

trial court has requested a remand. Trial Court Opinion, 4/18/18, at 1-2.

A court’s failure to award credit for time served, in accord with 42 

Pa.C.S.A. § 9760, implicates the legality of the sentence. Commonwealth 

v. Clark, 885 A.2d 1030, 1032 (Pa Super. 2005). Our Supreme Court has 

acknowledged that § 9760 does not address proper application of credit for

time served where the defendant is incarcerated for a new offense and 

detained for a parole violation. Martin v. Pa. Bd. Of Prob. & Parole, 840 

A.2d 229, 303-04 (Pa. 2003). In Gaito v. Pa. Bd. Of Prob. & Parole, 412 

A.2d 568 (Pa. 1980), our Supreme Court held that, in such a case, the time 

served should normally be applied to the sentence for the new offense. Id.

at 571. The Court also acknowledged in a footnote that time served can be 

credited toward the prior offense if the defendant is acquitted or receives no 

sentence for the new offense. Id. at 571 n.6. The Martin Court relied on 

Gaito to hold that a defendant could receive credit for time served against his 
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original sentence where he only received a 48-hour sentence for the new 

offense. Martin, 840 A.2d 229. Gaito and Martin remain good law: 

Gaito remains the general law in this Commonwealth 

respecting how credit should be allocated for a convicted parole 

violator wo receives a new sentence of incarceration, and the 

exception to Gaito, set forth at footnote 6 and further developed 

in Martin, is limited to cases in which a convicted parole violator 

receives a term of incarceration for new charges that is shorter 

than his pre-sentence confinement, such that the application of 

the Gaito rule would result in excess incarceration. 

Smith v. Pennsylvania Bd. Of Prob. & Parole, 171 A.3d 759, 768-69 (Pa. 

2017). 

The Commonwealth argues against remand, claiming Appellant is 

attempting to receive time-served credit toward the instant sentence and the 

Clinton County sentences. The Commonwealth correctly notes that this Court, 

in Commonwealth v. Ellsworth, 97 A.3d 1255 (Pa. Super. 2014), held that 

“duplicative imposition of credit for time served constitute[s] a patent and 

obvious mistake” that is amenable to correction beyond the thirty-day period 

specified in 42 Pa.C.S.A. § 5505. Id. at 1257. 

In light of all of the foregoing, we vacate the judgment of sentence and 

remand for a determination of whether Appellant has received proper credit 

for time served in accord with all applicable law. 
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Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2018