Can Two Separate Criminal Sentences of Incarceration Violate the Double Jeopardy Clause ?
In McCray v. Pennsylvania Department of Corrections, 807 A.2d 938 (Pa. Cmwlth. 2002), McCray was arrested and incarcerated after being charged with twenty-seven crimes.
On November 5, 1997, he entered a plea agreement where he pled guilty to three charges of aggravated assault, one charge of firearms not to be carried without a license and one charge of criminal conspiracy. McCray was sentenced to eleven and one-half months to twenty months in the Philadelphia County Prison and ten years of concurrent probation with credit for time served.
McCray petitioned for reconsideration of his sentence which was granted.
McCray's sentence was changed to "Time in to 23 months at the Phila. County Prison. Credit for time served. Immediate parole is Granted. Plus (10) years Probation to run concurrent to be supervised under the State Parole Board." McCray, 807 A.2d at 940.
McCray's probation was revoked and he was sentenced to two to four years of incarceration to run concurrently on the original aggravated assault and criminal conspiracy charges followed by five years of probation on one of the aggravated assault charges.
McCray requested that Department of Corrections (DOC) credit his time served under the "time in to twenty-three months . . ." sentence.
DOC denied the request. McCray then filed a petition for review in this Court's original jurisdiction and alleged that DOC had calculated his sentence incorrectly when DOC failed to credit him for time he served from May 1, 1996 to January 7, 1998, toward his new sentence of two to four years.
McCray then applied for summary relief and argued that he received two separate sentences of incarceration and, unless DOC credited the time served under the initial sentence to the time to be reserved under his new sentence, the sentence would violate the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. McCray, 807 A.2d at 939-940.
In McCray, DOC argued that Williams did not apply because McCray's prior period of incarceration and his new sentence did not exceed the maximum sentence for the crime.
DOC relied on Commonwealth v. Bowser, 2001 PA Super 271, 783 A.2d 348 (Pa. Super. 2001), petition for allowance of appeal denied, 568 Pa. 733, 798 A.2d 1286 (2002).
In McCray, this Court granted McCray's application for summary relief in mandamus and agreed with McCray that Williams controlled:
We agree with the dissent in Bowser that Williams controls because 42 Pa.C.S. 9760(2) specifies that credit shall be given for all time spent in custody under a prior sentence if a defendant is later reprosecuted and resentenced for the same offense.
Even if Williams only stands for the proposition that an inmate should be credited for time served if his prior sentence and his current sentence do not exceed the maximum sentence permitted under law, McCray would be entitled to credit because the maximum sentence he could have received was 20 years on the original charge . . ., and his sentence of 2-4 years plus the 23 months already served does not exceed the maximum possible sentence that could have been imposed.
Because McCray served the entire 23 months for the underlying offense and did not receive any credit for that time served, he should have received credit for the 23 months served against his sentence of 2-4 years. McCray, 807 A.2d at 942.