Com. v. Robertson, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KASHIF M. ROBERTSON,
Appellant No. 1595 MDA 2016
Appeal from the Judgment of Sentence Entered April 26, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002526-2012
BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 18, 2017
Appellant, Kashif M. Robertson, proceeding pro se, appeals from the
judgment of sentence entered on April 26, 2016, made final by the order
dated August 15, 2016, granting in part his post-sentence motion for
modification of sentence. Appellant also purports to appeal from the order
dated August 18, 2016, denying his post-sentence motion raising claims of
ineffective assistance of counsel.1 After careful review, we affirm.2
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The unusual procedural posture of this case described in detail, infra,
requires some explanation. Appellant initially filed a petition for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, on
October 14, 2015. Counsel was appointed and an amended petition was
filed on January 4, 2016. The PCRA court entered its original order denying
PCRA relief on Appellant’s claims of ineffective assistance of suppression,
trial, and appellate counsel on April 26, 2016. However, due to Appellant’s
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(Footnote Continued)
sentence being illegal as imposed, the court also resentenced Appellant that
same date. Appellant filed a post-sentence motion seeking credit for time
already served on May 2, 2016, which was docketed on May 5, 2016, and a
second post-sentence motion alleging ineffective assistance of counsel on
May 5, 2016, which was docketed on May 10, 2016. It appears that because
Appellant was incarcerated, the PCRA court deemed both of Appellant’s
motions timely and addressed Appellant’s allegations based on application of
the prisoner mailbox rule. See Pa.R.A.P. 121(a). The August 15, 2016
order granted the motion to modify sentence in part, which made final the
April 26, 2016 judgment of sentence, and the August 18, 2016 order denied
Appellant’s post-sentence motion alleging ineffective assistance of counsel.
2
Further complicating matters, Appellant filed a single appeal from the two
separate orders.
Where one or more orders resolves issues arising on more than
one docket or relating to more than one judgment, separate
notices of appeal must be filed. Note to Pa.R.A.P. 341, citing
Commonwealth v. C.M.K., 932 A.2d 111, 113 n.3 (Pa. Super.
2007). In C.M.K., this Court quashed a single appeal from two
judgments of sentence imposed on codefendants who were
convicted and sentenced individually on different charges.
C.M.K., 932 A.2d at 112. We noted that the filing of the joint
appeal in that instance was unworkable because the appeals
required individualized arguments, separate appellate analyses
of the evidence, and distinct examination of the different
sentences imposed. Id.
* * *
While our Supreme Court recognized that the practice of
appealing multiple orders in a single appeal is discouraged under
Pa.R.A.P. 512 (joint appeals), it previously determined that
appellate courts have not generally quashed such appeals,
provided that the issues involved are nearly identical, no
objection to the appeal has been raised, and the period for
appeal has expired. K.H. v. J.R., 826 A.2d 863, 870 (Pa. 2003)
(citation omitted).
(Footnote Continued Next Page)
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On April 7, 2012, Appellant was arrested and charged with persons not
to own or possess firearms,3 carrying a firearm without a license,4
possession with intent to deliver a controlled substance (“PWID”), 5 unlawful
possession of drug paraphernalia,6 and tampering with or fabricating
physical evidence.7 Complaint, 4/7/12. On September 10, 2012, Appellant
filed a motion to suppress. After a hearing, the suppression court denied the
motion on December 27, 2012. Subsequently, suppression counsel sought
leave to withdraw, and the trial court granted the motion on January 31,
2013. On February 21, 2013, Appellant, acting pro se, filed an appeal from
the order denying his motion to suppress. On April 22, 2013, after new
counsel entered his appearance on behalf of Appellant, this Court sua sponte
quashed Appellant’s pro se appeal as premature. See Commonwealth v.
Robertson, 420 MDA 2013 (unpublished order).
_______________________
(Footnote Continued)
In the Interest of: P.S., 158 A.3d 643, 648 (Pa. Super. 2017) (internal
footnote and quotations marks omitted). Under the facts presented here,
we decline to quash.
3
18 Pa.C.S. § 6105(c)(2).
4
18 Pa.C.S. § 6106(a)(1).
5
35 P.S. § 780-113(a)(30).
6
35 P.S. § 780-113(a)(32).
7
18 Pa.C.S. § 4910(1).
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A jury trial commenced on September 10, 2013, concluded in a
mistrial. On September 19, 2013, a jury convened for Appellant’s new trial
convicted Appellant of “PWID,” possession of drug paraphernalia, and
possession of a controlled substance. That same day, the trial court
sentenced Appellant to an aggregate term of incarceration of not less than
three nor more than ten years, followed by a two-year term of probation,
plus fines and costs.
On September 24, 2013, Appellant filed a pro se notice of appeal. On
October 1, 2013, new counsel filed an appeal on Appellant’s behalf. Eight
days later, new counsel sought leave to withdraw and forwarded Appellant’s
pro se Pa.R.A.P. 1925(b) statement of errors complained of on appeal to the
trial court. Subsequently, counsel withdrew the October 1, 2013 appeal. On
October 31, 2013, the trial court granted counsel’s motion to withdraw and
issued a new concise statement order. Thereafter, Appellant, again pro se,
filed a new Rule 1925(b) statement. On December 16, 2013, and
January 23, 2014, the trial court and the suppression court, respectively,
filed opinions pursuant to Pa.R.A.P. 1925(a).
On May 21, 2014, new counsel entered his appearance on behalf of
Appellant. This Court affirmed Appellant’s judgment of sentence on
December 16, 2014, Commonwealth v. Robertson, 116 A.3d 689, 1730
MDA 2013 (Pa. Super. filed December 16, 2014) (unpublished memorandum
at *13), and the Pennsylvania Supreme Court denied Appellant’s petition for
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allowance of appeal. Commonwealth v. Robertson, 116 A.3d 689, 117
MAL 2015 (Pa. filed June 30, 2015).
The trial court summarized the ensuing proceedings, as follows:
On October 14, 2015, Appellant [f]iled a pro se Petition for
Relief Pursuant to the Post-Conviction Relief Act. Counsel was
appointed and she filed a supplemental PCRA. Based upon that
supplemental filing, we scheduled a hearing for April 26, 2016.
At that hearing, based upon an illegal sentence, Appellant
was resentenced.[8] The remaining PCRA claims were dismissed
following the hearing.
Appellant then filed a Motion for Imposition of Correct Time
Credit on May 5, 2016 and a Post Sentence Motion on May 10,
2016. Following a Grazier[9] hearing on June 23, 2016, Counsel
was permitted to withdraw and the Commonwealth was granted
time to respond to various motions.
Based upon the Motion for Imposition of Correct Time
Credit and the Commonwealth’s response, on August 15, 2016,
this [c]ourt did grant Appellant time credit from April 7, 2012 to
September 20, 2015.
On August 18, 2016, this [c]ourt denied Appellant’s post
sentence motion in an order and memorandum opinion.
The Clerk of Courts received a Notice of Appeal of the
August 15 and August 18, 2016 orders on or about September 7,
2016. On September 26, 2016, we ordered Appellant to file a
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8
In the April 26, 2016 resentencing order, the trial court sentenced
Appellant to an aggregate term of two to four years of incarceration followed
by one year of probation, plus fines and costs.
9
See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (stating
that when an appellant seeks to waive their right to counsel, the trial court
shall hold a hearing on the record to determine if the waiver of counsel is
knowing, intelligent, and voluntary).
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statement of errors complained of on appeal. A timely statement
was filed.
PCRA Court Opinion, 12/12/16, at 3.
Appellant raises the following issues for appellate review:
A. Did the PCRA court err in denying in part Appellant’s
motion for time credit when he was not awarded his time on
parole while on the original sentence and under the jurisdiction
of the Pennsylvania Board of Probation and Parole, and was
subject to 61 Pa.C.S. § 6138 (c)(2); (f) at the time he was re-
sentenced, and is he deserving of time credit pursuant to state
statute?
B. Did the PCRA court err in denying Appellant’s claim that
counsel was ineffective by failing to cross examine
Commonwealth witnesses concerning contradictory testimony,
was previously litigated, when the claim concerning
contradicting testimony was never raised on appeal by
Appellant, and does this finding conflict with Commonwealth v.
Collins, 888 A.2d 564 (Pa. 2005)?
C. Did the PCRA court err in denying Appellant’s claim that
PCRA counsel was ineffective for failing to subpoena attorney
Gary Kelley, Esq. to meet the (3) prong test of ineffective
counsel of Mr. Kelley at the PCRA hearing?
D. Did the PCRA court err in denying Appellant’s claim that
trial counsel was ineffective for failing to assert his right under
Pa.R.Crim.P. 581 (J), to reopen the suppression record to
address previously unavailable evidence which was revealed
during trial, under In Re L.J., 79 A.3d 1073 (Pa.2013); has been
previously litigated on direct appeal?
E. Did the PCRA court err in denying Appellant’s claim that
PCRA counsel no-merit assertion was in error by finding his
ineffective claims against appellate counsel for failing to assert
his right under Pa.R.Crim.P. 581 (J), and In Re L.J., 79 A.3d
1073 (Pa. 2013); and for failing to effectively challenge the
reliability of the CI under both state and federal jurisprudence,
and address the contradictory testimony adopted by the
suppression judge and revealed in trial in his brief, was without
merit and was previously litigated?
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Appellant’s Brief at vii (full capitalization omitted).10
In his first issue, Appellant alleges that he was entitled to credit for
time spent on parole while under the jurisdiction of the Pennsylvania Board
of Probation and Parole pursuant to 61 Pa.C.S. § 6138 (c)(2) and (f). After
review, we conclude that this issue is meritless.
A “challenge to the trial court’s failure to award credit for time served
prior to sentencing involves the legality of a sentence.” Commonwealth v.
Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). “Our standard of review
over such questions is de novo and our scope of review is plenary.”
Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super. 2009)
(citation omitted).
During the post-conviction hearing, the PCRA court concluded that
Appellant’s original sentence was illegal and resentenced him on April 26,
2016. N.T. (PCRA Evidentiary Hearing), 4/26/16, at 34-36. As part of its
resentencing order, the PCRA court granted Appellant credit from April 12,
2015, to September 20, 2015. Resentencing Order, 4/26/16.11 However,
on August 15, 2016, after considering Appellant’s post-sentence motion to
correct time credit, the PCRA court granted Appellant relief insofar as it
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10
For purposes of our discussion, we have renumbered Appellant’s issues
presented.
11
Despite the language in the PCRA court’s order, the docket entry reflects
that Appellant was to receive credit beginning on April 7, 2012.
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awarded Appellant credit for time served from April 7, 2012, to
September 20, 2015. Modification of Sentence Order, 8/15/16.
While Appellant’s argument concerning the legality of his sentence is
muddled and peppered with references to the jurisdiction of the
Pennsylvania Board of Probation and Parole and technical parole violations,
we interpret it as an assertion that Appellant is entitled to credit for the time
between September 20, 2015, when he was paroled on the underlying
charges, and March 17, 2016, when he was arrested on new unrelated
charges.
The right to credit for time served is statutory in nature and arises
from 42 Pa.C.S. § 9760, which provides, in relevant part, as follows:
§ 9760. Credit for time served
[T]he 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 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. § 9760(1) (emphasis added). “Thus, credit for time served is
generally reserved for situations where the defendant is ‘in custody.’”
Commonwealth v. Martz, 42 A.3d 1142, 1145-1146 (Pa. Super. 2012)
(quoting Commonwealth v. Stafford, 29 A.3d 800 (Pa. Super. 2011)).
“Pennsylvania appellate courts consistently have interpreted section 9760’s
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reference to ‘custody’ as confinement in prison or another institution.”
Martz, 42 A.3d at 1145 (quoting Commonwealth v. Maxwell, 932 A.2d
941, 944 (Pa. Super. 2007) (citations omitted)). Here, from September 20,
2015, to March 17, 2016, Appellant was on parole, i.e., released from
confinement. Thus, under section 9760, Appellant was not “in custody” and
was not entitled to receive credit for this period. See Commonwealth v.
Kyle, 874 A.2d 12, 18 (Pa. 2005) (holding the defendant was not entitled to
credit for time spent on release pending appeal subject to electronic home
monitoring because, under Section 9760, “in custody” means “time spent in
an institutional setting”). Therefore, Appellant’s challenge to the legality of
his sentence is meritless.
Appellant’s remaining issues are claims of ineffective assistance of
counsel at various stages of the underlying proceedings. These claims were
addressed in the trial court’s August 18, 2016 order. We affirm the trial
court’s denial of relief; however, we do so on different grounds.
As we noted supra, the April 26, 2016 order granted relief on
Appellant’s credit-for-time-served issue, but it denied all other PCRA claims.
Appellant was resentenced that same day, and he did not appeal from the
denial of the PCRA claims. Rather, following resentencing, Appellant raised
his ineffectiveness issues in a post-sentence motion. This was improper.
In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme
Court held that “claims of ineffective assistance of counsel are to be deferred
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to PCRA review; trial courts should not entertain claims of ineffectiveness
upon post-verdict motions; and such claims should not be reviewed upon
direct appeal.” Id. at 576 (footnote omitted). The Supreme Court noted
that under “extraordinary circumstances,” there are two narrow exceptions
to this rule: (1) where the trial court determines that the ineffectiveness
claim is “both meritorious and apparent from the record so that immediate
consideration and relief is warranted; or (2) where the trial court finds “good
cause” for review and the defendant makes a “knowing and express waiver
of his entitlement to seek PCRA review from his conviction and sentence,
including an express recognition that the waiver subjects further collateral
review to the time and serial petition restrictions of the PCRA.” Id. at 564,
577.
Instantly, the trial court did not find Appellant’s claims meritorious,
and Appellant did not expressly waive his PCRA rights in his post-sentence
motion. Therefore, neither exception applies. Thus, Appellant’s ineffective-
assistance-of-counsel issues are premature.12 The ramifications of our
decision are that Appellant’s claims of ineffective assistance of counsel are
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12
We may affirm the trial court’s determination on any correct basis, even
where those grounds were not relied upon by the trial court.
Commonwealth v. Colon, 708 A.2d 1279, 1282, n. 1 (Pa. Super. 1998).
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deemed denied without prejudice to Appellant’s ability to raise them in a
collateral petition under the PCRA. Holmes, 79 A.3d at 576.13
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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13
Should Appellant opt to pursue collateral relief, we leave to the PCRA
court to determine what, if any issues, are properly preserved, what issues
were waived due to Appellant’s failure to pursue an appeal from the April 26,
2016 order, and what issues have been previously litigated.
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