Com. v. Moore, B. ( 2021 )

J-A22010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRAXTON JOHN MOORE :
:
Appellant : No. 330 MDA 2021
Appeal from the Judgment of Sentence Entered February 18, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000155-2019
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 22, 2021
Braxton Moore appeals from the February 18, 2021 order which revoked
his prior probationary sentence for simple assault and imposed a new sentence
of one to two years of incarceration. We vacate the sentence and remand to
the trial court for resentencing in accordance with this memorandum.
In 2018, Pottsville Police arrested Appellant for attacking his wife with a
rock and a tree branch. On June 25, 2019, Appellant entered a negotiated
plea to simple assault and recklessly endangering another person (“REAP”),
in exchange for a sentence of six to twenty-three months of incarceration for
REAP and a split sentence of six to twelve months of incarceration followed by
six to twelve months of probation for the simple assault. The periods of
confinement were run concurrently and Appellant received 219 days of time
credit.
J-A22010-21
On July 31, 2019, Appellant was granted parole to a drug recovery
house. On August 11, 2020, Appellant was arrested for an incident during
which he possessed a firearm and drug paraphernalia. As a result, the
Schulykill County Adult Probation moved to revoke Appellant’s probation on
the simple assault charge.
On February 18, 2021, the court held a hearing on the motion. At the
hearing, Appellant stipulated that he had: (1) failed to report to probation
multiple times; (2) been arrested for possessing a firearm, carrying a firearm
without a license, receiving stolen property, and possession of drug
paraphernalia for the August 11, 2020 incident; (3) failed to make monthly
payments on his costs and fines; (4) been discharged due to noncompliance
with drug and alcohol counselling; and (5) been using methamphetamine and
heroin daily since June of 2020. See N.T. Probation Revocation Hearing,
2/18/21, 3-7. Based on the stipulations, the court revoked Appellant’s
probation and resentenced him to one to two years of incarceration.1
Appellant received 183 days credit for time he spent detained for the
revocation. See Order, 2/18/21.
____________________________________________
1Since Appellant had completed the parole portion of his split sentence before
he violated his probation, Appellant’s sentence did not involve an anticipatory
probation revocation. Accordingly, our recent holding that Pennsylvania
sentencing courts lack the statutory authority to revoke a probationary
sentence when a defendant commits a new crime before his probation has
commenced is not implicated here. See Commonwealth v. Simmons, ___
A.3d ___, 2021 PA Super 166, 2021 WL 3641859 (Pa.Super. 2021) (en banc).
-2-
J-A22010-21
Appellant filed pro se correspondence indicating that he wanted to file a
direct appeal and asked the court to appoint counsel. The court construed
these filings as a timely notice of appeal and held a hearing regarding whether
counsel would be appointed. At the hearing, the court appointed counsel to
represent Appellant on appeal. Thereafter, counsel filed a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) and the
trial court submitted its Rule 1925(a) opinion.
Appellant raises two issues for our review:
1. Did the court err in sentencing [Appellant] to one to two
years at a state correctional facility on a second[-]degree
misdemeanor after previously sentencing him to [six] to [twelve]
months on split sentence for the same charge?
2. Was [Appellant] denied effective assistance of counsel when
counsel failed to obtain and present mitigating evidence at his
probation revocation hearing?
Appellant’s brief at 3.
First, Appellant alleges that he received a sentence that exceeded the
statutory maximum. The issue of whether a sentence is illegal is a question
of law and our scope of review is plenary. See Commonwealth v. Crump,
995 A.2d 1280, 1283 (Pa.Super. 2010). “[C]ourts have long held the failure
to award credit for time served prior to sentencing involves the legality of
sentence.” Commonwealth v. Foster, 960 A.2d 160, 170 n. 5 (Pa.Super.
2008).
Appellant was convicted of simple assault, a second-degree
misdemeanor. The maximum sentence allowable under the law for a second-
-3-
J-A22010-21
degree misdemeanor is two years. See 18 Pa.C.S. § 1104. Appellant contends
that when the initial time he spent incarcerated is added to the revocation
sentence of incarceration, the amount of time exceeds the statutory maximum
of two years. We agree.
In Pennsylvania, our legislature has codified pre-sentence confinement
credit in the following manner:
(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.
(2) Credit against the maximum term and any minimum term
shall be given to the defendant for all time spent in custody
under a prior sentence if he is later reprosecuted and
resentenced for the same offense or for another offense
based on the same act or acts. This shall include credit in
accordance with paragraph (1) of this section for all time
spent in custody as a result of both the original charge and
any subsequent charge for the same offense or for another
offense based on the same act or acts.
42 Pa.C.S. § 9760.
This Court has held that § 9760 mandates that “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” must be credited to
a defendant. Commonwealth v. Johnson, 967 A2d 1001, 1005 (Pa.Super.
2009) (quoting 42 Pa.C.S. § 9760(1)); see also Commonwealth v.
Williams, 662 A.2d 658 (Pa.Super. 1995) (relying upon § 9760(1) and
-4-
J-A22010-21
holding that the trial court must credit time served if a sentence imposed
following revocation of probation would otherwise exceed the maximum
sentence allowed by law).
Herein, Appellant spent thirty-six days incarcerated after sentencing.
He also received an additional 219 days of credit for time he spent
incarcerated on this charge pre-sentence. Accordingly, at the revocation
hearing, Appellant had already spent 255 days incarcerated on the simple
assault charge.2 At the resentencing hearing, the court gave Appellant credit
for the 183 days he was incarcerated on the revocation detainer, but did not
award credit for the time that Appellant served on his original sentence. See
Order, 2/18/21. This was error. Under established case law discussed infra
the trial court was required to credit Appellant with all time served pursuant
to § 9760.
____________________________________________
2Appellant was also serving the sentence on the REAP charge simultaneously.
Since, the sentences were run concurrently that fact does not impact our
analysis.
-5-
J-A22010-21
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction
is relinquished.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2021
____________________________________________
3 Counsel also included an ineffective assistance of counsel claim, at
Appellant’s request, that counsel concedes is not properly raised in his appeal.
See Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013) (“By way of
summary, we hold that [the] general rule of deferral to PCRA review remains
the pertinent law on the appropriate timing for review of claims of ineffective
assistance of counsel; we disapprove of expansions of the exception to that
rule[.]”). We agree. However, in doing so we note that counsel followed
improper procedure by raising a frivolous issue and arguing against his client
in an advocates brief. See Commonwealth v. Morrison, 173 A.3d 286, 293
(Pa.Super. 2017) (directing counsel on how to proceed when he and his client
disagree about which issues to raise on direct appeal).
-6-