Com. v. Webb, T. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYRONE WEBB
Appellant No. 924 WDA 2014
Appeal from the PCRA Order May 7, 2014
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000511-2007
CP-56-CR-0000512-2007
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 24, 2014
Appellant, Tyrone Webb, appeals from the order entered in the
Somerset County Court of Common Pleas, which denied his petition filed
under the Post Conviction Relief Act (“PCRA”).1 We affirm.
In 2006, Appellant kicked a correctional officer in the groin and, on
another occasion, threw a cup of his urine on a correctional officer.
Appellant pled guilty to simple assault and aggravated harassment by
prisoner. On August 6, 2008, the court sentenced Appellant to a term of
one (1) to two (2) years’ imprisonment for the simple assault conviction.
For the aggravated harassment by prisoner conviction, the court sentenced
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1
42 Pa.C.S.A. §§ 9541-9546.
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Appellant to a consecutive term of two (2) to five (5) years’ imprisonment.
Thus, Appellant’s aggregate sentence was three (3) to seven (7) years’
imprisonment. The court made Appellant’s aggregate sentence concurrent
to any sentence Appellant was already serving.
This Court affirmed Appellant’s judgment of sentence. Appellant
subsequently filed a pro se PCRA petition, and the PCRA court reinstated
Appellant’s direct appeal rights nunc pro tunc. Appellant filed a petition for
allowance of appeal with the Pennsylvania Supreme Court, which was denied
on May 30, 2013. Appellant filed the current pro se PCRA petition on
January 16, 2014. The PCRA court appointed counsel. On May 7, 2014,
following a hearing, the court denied Appellant’s petition. Appellant timely
filed a notice of appeal on May 23, 2014. The court ordered Appellant to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal;
Appellant timely complied.
Appellant raises one issue for our review:
WHETHER THE [PCRA] COURT ERRED IN DENYING
APPELLANT’S POST CONVICTION COLLATERAL RELIEF
PETITION BY FINDING THAT (1) APPELLANT WAS NOT
ENTITLED TO ADDITIONAL CREDIT FOR TIME SERVED;
AND (2) TRIAL COUNSEL WAS NOT INEFFECTIVE?
(Appellant’s Brief at 3).
Appellant argues that at the time he committed the current offenses,
he was incarcerated for a sentence imposed in Lehigh County. According to
Appellant, the minimum term for the Lehigh County sentence ended on
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March 21, 2007, and the maximum term extended to December 21, 2009.
Appellant asserts he remained in custody from the time he committed the
current offenses to the sentencing date of August 6, 2008. Appellant claims
he is entitled to credit for time served from May 24, 2007 to December 24,
2007, and from January 24, 2008 to August 6, 2008. Appellant contends he
is entitled to credit for these dates because the court ordered the current
sentence to run concurrently with any sentence Appellant was already
serving. Appellant also argues that prior counsel was “ineffective for not
succeeding in obtaining such credit on his behalf.” (Appellant’s Brief at 8).
Appellant concludes his sentence should be modified to credit time served on
the Lehigh County sentence. We cannot agree.
“The Pennsylvania Rules of Appellate Procedure require that each
question an appellant raises be supported by discussion and analysis of
pertinent authority, and failure to do so constitutes waiver of the claim.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa.Super. 2014).
See Pa.R.A.P. 2119(a)-(b). “Arguments not appropriately developed are
waived.” Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super. 2006),
appeal denied, 596 Pa. 704, 940 A.2d 363 (2007).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, a petitioner is required
to make the following showing: (1) the underlying claim is of arguable merit;
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(2) counsel had no reasonable strategic basis for his action or inaction; and,
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Williams, supra.“[T]o succeed on an allegation of…counsel’s ineffectiveness…a post-
conviction petitioner must, at a minimum, present argumentation relative to
each layer of ineffective assistance, on all three prongs of the ineffectiveness
standard….” Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d
806, 812 (2004) (internal citations omitted). “[A]n undeveloped argument,
which fails to meaningfully discuss and apply the standard governing the
review of ineffectiveness claims, simply does not satisfy [the petitioner’s]
burden of establishing that he is entitled to any relief.” Commonwealth v.
Bracey, 568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).
Credit for time served is governed by the Sentencing Code in relevant
part as follows:
§ 9760. Credit for time served
After reviewing the information submitted under section
9737 (relating to report of outstanding charges and
sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody as a result of the criminal charge for which a
prison sentence is imposed or as a result of the
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conduct on which such a charge is based. Credit shall
include credit for time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an
appeal.
42 Pa.C.S.A. § 9760(1) (emphasis added). “[A] defendant shall be given
credit for any days spent in custody prior to the imposition of sentence, but
only if such commitment is on the offense for which sentence is imposed.
Credit is not given, however, for a commitment by reason of a separate and
distinct offense.” Commonwealth v. Clark, 885 A.2d 1030, 1034
(Pa.Super 2005) (quoting Commonwealth v. Miller, 655 A.2d 1000, 1002
(Pa.Super. 1995)) (internal quotation marks omitted).
Instantly, Appellant’s two-page argument section in his brief does not
cite to any relevant authority to support his claim that he is entitled to a
credit for the time he spent in custody as a result of a prior unrelated
conviction. Likewise, Appellant fails to develop any argument as to how plea
counsel was ineffective for “not succeeding in obtaining such credit on his
behalf.” See Appellant’s Brief at 8. Therefore, Appellant’s sole issue is
waived. See Bracey, supra; Love, supra; Pa.R.A.P. 2119(a)-(b).
Moreover, in any event, Appellant would not be entitled to the relief he
requests because the time he spent in custody before imposition of the
current sentence resulted from a prior unrelated conviction. This pre-
sentence period of incarceration was in no way attributable to the current
criminal charges. In other words, Appellant is not entitled to a credit against
his current sentence for the time he spent in prison on a distinct, wholly
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unrelated charge. See 42 Pa.C.S.A. § 9760(1); Clark, supra. Accordingly,
we affirm the order denying Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
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