Com. v. Summers, P. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
PRINCEL V. SUMMERS
Appellant No. 1582 MDA 2017
Appeal from the PCRA Order entered September 26, 2017
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0001041-2015
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 14, 2019
Appellant, Princel V. Summers,1 appeals from the September 26, 2017
order entered in the Court of Common Pleas of York County, denying his
petition for collateral relief under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. While Appellant asserts the trial court erred in
failing to correct his pre-sentencing credit, he claimed ineffectiveness of
counsel in his PCRA petition for failing to seek retroactive revocation of his
bail. For the reasons that follows, we reject Appellant’s claims and affirm the
order dismissing his petition.
As the PCRA court explained:
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1We note that the docket identifies Appellant as Princel V. Summers, while he
writes and signs his name as Prince’l V. Summers. For purposes of this
Memorandum, we adopt the spelling as it appears on the docket.
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On May 5, 2016, the Appellant pleaded guilty [to robbery at docket
at No. 1041-2015], along with a number of other dockets, for an
agreed upon sentence of three-to-six years in a state correctional
facility with concurrent probationary sentences for some lesser
actions. On August 22, 2016, the Appellant caused a pro se letter
to be docketed that requested his credit for time already served
to be addressed.
PCRA Court Opinion, 4/30/18, at 1. The court explained that a senior judge
presided over a hearing on October 27, 2016 and entered time-credit orders
on each docket, including No. 1041-2015, for which Appellant received credit
for time served from December 8, 2015 until May 5, 2016. However, due to
an apparent oversight, Appellant was not given credit for a period of time from
January 24, 2015 to May 19, 2015. That oversight was remedied by an order
entered on April 6, 2017 by the trial judge, who was also the PCRA judge. Id.
at 1-2.2
With respect to No. 1041-2015, it is important to note Appellant was
released on bail on May 19, 2015. He was arrested on unrelated charges on
May 29, 2015 and returned to prison at that time. However, he remained out
on bail with regard to No. 1041-2015. Therefore, although he was
incarcerated, that confinement was unrelated to No. 1041-2015 and was
correctly excluded from time-served credit calculations. As this Court
reiterated in Commonwealth v. Infante, 63 A.3d 358 (Pa. Super. 2013),
“[A] defendant shall be given credit for any days spent in custody prior to the
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2 Appellant did not file a direct appeal from his judgment of sentence.
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imposition of sentence, but only if such commitment is on the offense
for which sentence is imposed.” Id. at 367 (quoting Commonwealth v.
Clark, 885 A.2d 1030, 1034 (Pa. Super. 2005) (additional citation omitted)
(emphasis added)).
In his PCRA petition, Appellant asserted that trial counsel was ineffective
for failing to secure credit for time served, including time served from May 29,
2015, when he was arrested on the unrelated charges, through December 8,
2015. Following a hearing, the PCRA court denied Appellant’s petition. This
timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant asks us to consider a single issue in this appeal:
I. Whether the honorable trial court erred in not granting
Appellant pre-sentencing credit from May 29, 2015 to
December 8, 2015 or 193 days.
Appellant’s Brief at 4.3
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3 Appellant’s issue, as framed, raises a claim of trial court error for failing to
grant pre-sentencing credit. As explained in Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc), the PCRA
procedurally bars claims of trial court error by requiring a petitioner to
demonstrate that the allegation of error has not been previously litigated or
waived. “At the PCRA stage, claims of trial court error are either previously
litigated (if raised on direct appeal) or waived (if not).” Id. (citation omitted).
“Trial court error may constitute the arguable merit prong of an [ineffective
assistance of counsel] claim, but the issue must be framed properly for a
petition to be entitled to relief.” Id. (citation omitted). Here, the issue was
properly raised in Appellant’s petition. Therefore, we shall consider it, despite
the improper phrasing of the issue presented on appeal, which we could
consider waived for failure to raise it on direct appeal.
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As this Court explained in Reyes-Rodriguez:
In PCRA appeals, our scope of review “is limited to the findings of
the PCRA court and the evidence on the record of the PCRA court’s
hearing, viewed in the light most favorable to the prevailing
party.” Commonwealth v. Sam, 597 Pa. 523, 952 A.2d 565,
573 (2008) (internal quotation omitted). Because most PCRA
appeals involve questions of fact and law, we employ a mixed
standard of review. Commonwealth v. Pitts, 603 Pa. 1, 981
A.2d 875, 878 (2009). We defer to the PCRA court’s factual
findings and credibility determinations supported by the record.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc). In contrast, we review the PCRA court’s legal
conclusions de novo. Id.
Id., 111 A.3d at 779. Further, “[i]t is well-established that counsel is
presumed effective and a PCRA petitioner bears the burden of proving
ineffectiveness.” Id. at 779-80 (citations and brackets omitted).
To prevail on an [ineffectiveness assistance of counsel] claim, a
PCRA petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for acting or failing to act;
and (3) the petitioner suffered resulting prejudice.
Commonwealth v. Baumhammers, [625 Pa. 354], 92 A.3d
708, 719 (2014) (citing [Commonwealth v. Pierce, 527 A.2d
973, 975–76 (Pa. 1987)]). A petitioner must prove all three
factors of the “Pierce test,” or the claim fails. Id. In addition,
on appeal, a petitioner must adequately discuss all three factors
of the “Pierce test,” or the appellate court will reject the claim.
Commonwealth v. Fears, 624 Pa. 446, 86 A.3d 795, 804
(2014).
Id. at 780.
Appellant asserts that trial counsel was ineffective for failing to request
revocation of his bail on No. 1041-2015 so he would receive credit while
incarcerated on charges relating to his May 29, 2015 arrest. He contends
counsel had no reasonable basis for failing to request bail revocation, and
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argues he did not receive credit from May 29, 2015 to December 8, 2015 as
a result. Appellant’s Brief at 9. He suggests the PCRA court acknowledged
Appellant did not receive credit because his bail was not revoked. Id.
In its opinion, the PCRA court conceded that Appellant’s claim had
arguable merit. “Where no credit was awarded at the time of the plea, it is
axiomatic that there is arguable merit to a claim that a defendant was misled
about how the defendant’s credit would flesh out.” PCRA Court Opinion,
4/30/18, at 11. We agree. Therefore, we conclude Appellant satisfied the
first prong of the Pierce test.
However, Appellant cannot satisfy the second prong, i.e., that counsel
had no reasonable basis for acting or failing to act. As the PCRA court
explained, “A chosen strategy will not be found to have lacked a reasonable
basis unless it is proven ‘that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.’” Id. (quoting
Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009)). The PCRA court
observed:
As it was this court that presided over the plea and sentencing,
we can assure the Appellant that this strategy[, i.e., asking for
bail to be revoked retroactively,] would not have succeeded. To
be blunt, the Appellant received a minimal sentence for a good
amount of crime. Had [trial counsel] been aware of and pursued
a strategy of retroactively revoking bail, we would have rejected
it. We explained all of this at the September 26, 2017 hearing on
the PCRA petition.
PCRA Court Opinion, 4/30/18, at 11 (citing Notes of Testimony, PCRA Hearing,
9/26/17, at 20) (some capitalization omitted).
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Because Appellant has not satisfied the second prong of the Pierce test,
he cannot succeed on his PCRA claim. “A failure to satisfy any of the three
prongs of the Pierce test requires rejection of a claim of ineffective assistance
of trial counsel[.]” Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa.
2011) (additional citations omitted).4
Order affirmed.
Judge Shogan joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2019
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4 The PCRA court briefly addressed the third prong of the Pierce test to
illustrate that Appellant failed to satisfy that prong as well, i.e., that counsel’s
actions resulted in prejudice to Appellant. The court considered whether
absent counsel’s error, “[W]ould the outcome have been any different? Again,
knowing how we would have ruled upon a request to engage in the fiction of
revoking credit retroactively, the answer is no.” PCRA Court Opinion, 4/30/18,
at 11-12. Moreover, as the PCRA court observed, there was nothing in the
record to suggest that Appellant did not enter his pleas unknowingly. Id. at
12.
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