Can a Defendant Seek to Credit His Previously Served Sentences Even If the Total Confinement Components Are Within the Statutory Maximum ?

In Aviles v. Pennsylvania Department of Corrections, 875 A.2d 1209 (Pa. Cmwlth. 2005), Aviles received a sentence of three to twenty-three months imprisonment and a consecutive term of one year probation. Aviles was paroled effective July 12, 1995, and began serving his probation term. In January 1999, Aviles was found to be in violation or probation. His probation was revoked. He received a new sentence of eleven and one-half to twenty-three months imprisonment and a consecutive term of five years probation. On November 8, 2000, Aviles was released from prison after he served twenty-three months. In January 2003, Aviles again violated his probation and was sentenced to a term of three to six years with credit for time served. Aviles, 875 A.2d at 1210-1211. Aviles filed a mandamus action and asked this Court to direct DOC to credit him with 873 days he previously served. DOC preliminarily objected in the nature of a demurrer. This Court sustained the preliminary objection and dismissed Aviles's petition based on McCray: Aviles lacks a clear right to the credit he seeks. The trial court originally convicted Aviles on a drug charge punishable by up to 15 years in prison. . . . the original sentence contained a total confinement component of up to 23 months. Then, the second VOP violation of probation sentence contained a total confinement component of up to 23 months. Then, the second VOP violation of probation sentence contained a total confinement component of up to six years. The combined total confinement components of all his sentences for this crime are less than 10 years, well within the statutory maximum. As in McCray and Bowser, concerns about the imposition of an illegal sentence are simply not present here. As in McCray, Aviles lacks a clear right to the credit he seeks. Aviles, 875 A.2d at 1213.