Com. v. Leonard, L. ( 2017 )


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  • J-S53041-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    LAKEISHA S. LEONARD
    Appellant                No. 2102 MDA 2015
    Appeal from the Judgment of Sentence March 13, 2015
    in the Court of Common Pleas of Dauphin County Criminal Division
    at No(s):CP-22-CR-0002286-2013
    CP-22-CR-0004461-2011
    CP-22-CR-0004605-2014
    CP-22-CR-0004843-2011
    BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 04, 2017
    Appellant, Lakeisha Leonard, appeals nunc pro tunc from the judgment
    of sentence entered in the Dauphin County Court of Common Pleas following
    the revocation of her probation.         We vacate Appellant’s judgment of
    sentence and remand for resentencing.
    Appellant was charged with three counts of bad checks in 4461 CR
    2011, one count of bad checks in 4843 CR 2011, forgery, identity theft, and
    theft by deception (false pretenses) and theft by unlawful taking in 2286 CR
    2013.     She pleaded guilty and was sentenced on October 8, 2013, to five
    years’ intermediate punishment (“IP”), with house arrest and electronic
    monitoring for the first four months, and probationary terms.
    *
    Former Justice specially assigned to the Superior Court.
    J-S53041-16
    Appellant was subsequently arrested on August 6, 2014, and charged
    with forgery and criminal conspiracy (theft by deception) in 4605 CR 2014.
    On August 7, 2014, the Dauphin County Adult Probation Department filed a
    notice of violations in 2286 CR 2013, 4461 CR 2011, and 4843 CR 2011, and
    cited the new charges in 4605 CR 2015.       On January 12, 2015, Appellant
    pleaded guilty to the new charges in 4605 CR 2014, and was sentenced for
    criminal conspiracy to time served from August 7, 2014 to January 12, 2015.
    On March 13, 2015,1 the trial court revoked Appellant’s IP and
    probationary sentences in 2286 CR 2013, 4461 CR 2011, and 4843 CR 2011
    and sentenced her to one to five years’ imprisonment followed by three
    years’ probation. The court did not discuss whether Appellant qualified for a
    Recidivism Risk Reduction Initiative (“RRRI”) sentence. Appellant requested
    that her trial counsel file a post-sentence motion to modify her sentence.
    Trial counsel, however, did not file a post-sentence motion or a notice of
    appeal.
    On August 25, 2015, the court docketed Appellant’s pro se PCRA
    petition, which alleged ineffective assistance of counsel for failing to file a
    post-sentence motion. The PCRA court appointed counsel who filed a PCRA
    1
    The sentencing order and transcript are dated February 13, 2015. The
    docket and record, however, reflect an order to transport Appellant for a
    revocation hearing scheduled for March 13, 2015, and several sentencing
    forms dated March 13, 2015. Finally, the trial court indicated the revocation
    hearing occurred on March 13, 2015. Trial Ct. Op. at 2. Accordingly, we
    presume the revocation and sentencing proceeding occurred in March.
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    petition alleging ineffective assistance of counsel on October 13, 2015. The
    counseled petition claimed that Appellant requested trial counsel to ask the
    court to modify the sentence to account for credit for time served and a
    request for a RRRI sentence. PCRA Pet., 10/13/15, at 6 (unpaginated). The
    counseled petition did not allege an excessive sentence.           The petition
    requested an evidentiary hearing, an order permitting Appellant to appear at
    the hearing, and such relief as the court deemed appropriate. Id. at 7. The
    petition did not explicitly request that the court reinstate her direct appeal
    rights or grant permission to file a post-sentence motion nunc pro tunc.
    The Commonwealth filed a response, which agreed that Appellant’s
    trial counsel was ineffective by failing to file a post-sentence motion.
    Commonwealth’s Response to Petitioner’s Mot. for Post-Conviction Relief,
    11/12/15, at 2 (unpaginated).       The Commonwealth indicated it did not
    object to a reinstatement of Appellant’s direct appellate rights. Id.
    On November 17, 2015, the PCRA court reinstated Appellant’s direct
    appeal rights.   PCRA Ct. Order, 11/17/15.        The order did not mention
    whether Appellant could file a post-sentence motion nunc pro tunc.
    Appellant timely filed a direct appeal and timely filed a court-ordered
    Pa.R.A.P. 1925(b) statement.
    On appeal, Appellant raises two issues for review:
    1. Whether trial counsel was ineffective for failing to file a
    modification of sentence or appeal on . . . Appellant’s
    behalf?
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    2. Whether the trial court abused its discretion when
    sentencing . . . Appellant to an excessive and
    unreasonable sentence?
    Appellant’s Brief at 5.
    Appellant, the Commonwealth, and the PCRA court agree that
    Appellant’s plea counsel was ineffective for failing to file a requested post-
    sentence motion.      See Appellant’s Brief at 9; Commonwealth’s Brief at 4;
    PCRA Ct. Op., 2/16/16, at 2. Appellant contends the court failed to consider
    whether she was eligible for a RRRI sentence, failed to grant her credit for
    time served, did not put its reasoning for her sentence on the record, and
    did not consider mitigating circumstance. Appellant’s Brief at 9-10.
    We first address Appellant’s contention that the trial court erred in
    failing to consider whether she was eligble for RRRI and entitled to credit for
    time served.
    This Court has held that an attack upon the power of a
    court to impose a given sentence is a challenge to the
    legality of a sentence. Commonwealth v. Lipinski, 
    841 A.2d 537
    , 539 (Pa.             Super.   2004);    see also
    Commonwealth v. Hansley, 
    994 A.2d 1150
     (Pa. Super.
    2010) (challenge to trial court’s imposition of RRRI
    sentence with mandatory minimum sentence constitutes
    challenge to trial court’s sentencing authority).
    Commonwealth v. Robinson, 
    7 A.3d 868
    , 870 (Pa. Super. 2010).
    Further, 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
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    review is plenary.” Commonwealth v. Brougher, 
    978 A.2d 373
    , 377 (Pa.
    Super. 2009) (citation omitted).       Therefore, we consider the issues of
    Appellant’s RRRI eligibility and credit for time served.
    RRRI eligibility is set forth by 61 Pa.C.S. § 4503:
    “Eligible offender.” A defendant or inmate convicted of a
    criminal offense who will be committed to the custody of
    the department and who meets all of the following
    eligibility requirements:
    (1) Does not demonstrate a history of present or past
    violent behavior.
    (2) Has not been subject to a sentence the calculation of
    which includes an enhancement for the use of a deadly
    weapon as defined under law or the sentencing guidelines
    promulgated by the Pennsylvania Commission on
    Sentencing or the attorney for the Commonwealth has not
    demonstrated that the defendant has been found guilty of
    or was convicted of an offense involving a deadly weapon
    or offense under 18 Pa.C.S. Ch. 61 (relating to firearms
    and other dangerous articles) or the equivalent offense
    under the laws of the United States . . . .
    (3) Has not been found guilty of or previously convicted of
    or adjudicated delinquent for or an attempt or conspiracy
    to commit a personal injury crime as defined under section
    103 of the act of November 24, 1998 (P. L. 882, No. 111),
    known as the Crime Victims Act, except for an offense
    under 18 Pa.C.S. § 2701 (relating to simple assault) when
    the offense is a misdemeanor of the third degree, or an
    equivalent offense under the laws of the United States or
    one of its territories or possessions, another state, the
    District of Columbia, the Commonwealth of Puerto Rico or
    a foreign nation.
    (4) Has not been found guilty or previously convicted or
    adjudicated delinquent for violating any of the following
    provisions or an equivalent offense under the laws of the
    United States or one of its territories or possessions,
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    another state, the District of Columbia, the Commonwealth
    of Puerto Rico or a foreign nation:
    18 Pa.C.S. § 4302(a) (relating to incest).
    18 Pa.C.S. § 5901 (relating to open lewdness).
    18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
    pornography).
    Received a criminal sentence pursuant to 42 Pa.C.S. §
    9712.1 (relating to sentences for certain drug offenses
    committed with firearms).
    Any offense for which registration is required under 42
    Pa.C.S. Ch. 97 Subch. H (relating to registration of
    sexual offenders).
    (5) Is not awaiting trial or sentencing for additional
    criminal charges, if a conviction or sentence on the
    additional charges would cause the defendant to become
    ineligible under this definition.
    (6) Has not been found guilty or previously convicted of
    violating section 13(a)(14), (30) or (37) of the act of April
    14, 1972 (P.L. 233, No. 64), known as The Controlled
    Substance, Drug, Device and Cosmetic Act, where the
    sentence was imposed pursuant to 18 Pa.C.S. §
    7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii)
    (relating to drug trafficking sentencing and penalties).
    61 Pa.C.S. § 4503(1)-(6) (footnotes omitted).
    The court is required to ascertain whether the defendant is eligible for
    a RRRI sentence:
    (b.1) Recidivism risk reduction incentive minimum
    sentence.—The court shall determine if the defendant is
    eligible for a recidivism risk reduction incentive minimum
    sentence under 61 Pa.C.S. Ch. 45 (relating to recidivism
    risk reduction incentive). If the defendant is eligible, the
    court shall impose a recidivism risk reduction incentive
    minimum sentence in addition to a minimum sentence and
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    maximum sentence except, if the defendant was
    previously sentenced to two or more recidivism risk
    reduction incentive minimum sentences, the court shall
    have the discretion to impose a sentence with no
    recidivism risk reduction incentive minimum.
    42 Pa.C.S. § 9756(b.1).
    Accordingly, where the trial court fails to make a
    statutorily required determination regarding a defendant’s
    eligibility for an RRRI minimum sentence as required, the
    sentence is illegal. . . . [The defendant’s] issue presents a
    non-waivable challenge to the legality of [the] sentence.
    Robinson, 
    7 A.3d at 871
    .         In Robinson, the trial court denied the
    defendant’s request to determine her eligibility for a RRRI sentence. 
    Id. at 870
    . The court reasoned “that imposition of the negotiated sentence in this
    case precluded application of the RRRI.”      
    Id. at 874
    .   Because the trial
    court’s reasoning was flawed, the Robinson Court vacated the defendant’s
    judgment of sentence and remanded to have the court ascertain whether
    she was RRRI eligible. 
    Id. at 875
    .
    Instantly, the trial court conceded that at Appellant’s sentencing
    hearing, it failed to ascertain whether she was qualified for a RRRI sentence.
    See Trial Ct. Op. at 3 (“It does appear that Appellant qualifies as RRRI
    eligible, and we do acknowledge that should have been determined at
    sentencing.”).   Accordingly, because Appellant’s sentence is illegal, see
    Robinson, 
    7 A.3d at 871
    , we vacate the judgment of sentence and remand
    for resentencing, including a determination of RRRI eligibility.   See 
    id. at 875
    .
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    Appellant also alleges that she is entitled to the following additional
    credit for time in custody: (1) October 8, 2013 to March 8, 2014; (2) March
    6, 2015 to March 17, 2015; and (3) November 2, 2015 to January 14, 2016.
    Appellant’s Brief at 17.   We conclude that Appellant has not established a
    right to relief, but direct the trial court to consider whether Appellant is
    entitled to credit on remand.
    This Court has stated:
    The sentencing code provides:
    § 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 conduct on which such a charge is based.
    Credit shall include credit for the 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) . . . . “The principle underlying
    section 9760 is that a defendant should be given credit for
    time spent in custody prior to sentencing for a particular
    offense.” “If a defendant . . . remains incarcerated prior
    to trial because he has failed to satisfy bail requirements
    on the new criminal charges, then the time spent in
    custody shall be credited to his new sentence.” “Where an
    offender is incarcerated on both a Board [of Probation and
    Parole] detainer and new criminal charges, all time spent
    in confinement must be credited to either the new
    sentence or the original sentence.” The Department of
    Corrections, an executive agency, has no power to change
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    sentences, or to add or remove sentencing conditions,
    including credit for time served; this power is vested in the
    sentencing court.
    Commonwealth v. Mann, 
    957 A.2d 746
    , 749 (Pa. Super. 2008) (some
    citations and emphases omitted).
    “Pennsylvania appellate courts consistently have interpreted section
    9760's   reference   to   ‘custody’   as   confinement   in   prison   or   another
    institution.”    Commonwealth v. Martz, 
    42 A.3d 1142
    , 1145 (Pa. Super.
    2012) (citation omitted). “[T]ime spent subject to electronic monitoring at
    home is not time spent ‘in custody’ for purposes of credit toward a prison
    sentence.”      Commonwealth v. Birney, 
    910 A.2d 739
    , 741 (Pa. Super.
    2006) (citation omitted).
    At the outset, we note that Appellant’s boilerplate assertions fail to
    establish that she was in custody based on the instant charges.             In any
    event, the 151 days from October 8, 2013, to March 8, 2014, occurred after
    Appellant was sentenced to IP and probation, but before the instant
    revocation proceeding was commenced.            Therefore, no record evidence
    suggests Appellant was in custody on the instant charges. See Mann, 
    957 A.2d at 749
    ; Birney, 
    910 A.2d at 741
    .
    Next, the five days between March 6 and March 11, 2015, occurred
    between the imposition of the January 12, 2015 time-served sentence in
    4605 CR 2014 and the instant March 13, 2015 revocation proceeding.               A
    review of the record and the publicly available dockets reveals the following.
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    On January 20, 2015, Appellant was sentenced to nine months to twenty
    three months’ imprisonment in Cumberland County following the revocation
    of her probation in that County. Docket, CP-21-CR-0003144-2012, at 7. On
    February 4, 2015, the trial court issued a writ of habeas corpus directing the
    transportation of Appellant from Cumberland County Prison to Dauphin
    County for the March 13, 2015 revocation proceeding in Dauphin County.2
    See Order, 2/4/15.      Accordingly, we discern no basis to conclude that
    Appellant was in custody from March 6 to March 11, 2015, due to the instant
    matter. See Mann, 
    957 A.2d at 749
    .
    Lastly, the seventy-three days from November 2, 2015, to January 14,
    2016, accrued after the imposition of the instant sentence following
    revocation and during this appeal.      To the extent that Appellant was in
    custody for these seventy-three days as a result of the sentence following
    revocation, Appellant would be entitled to credit for this time.        See 42
    Pa.C.S. § 9760(1) (“Credit shall include credit for the time spent in custody .
    . . pending the resolution of an appeal.”).
    Therefore, we vacate the March 13, 2015 sentence and remand for
    resentencing, including determinations of RRRI eligibility and whether
    Appellant is entitled to any additional credit for time in custody in the instant
    matter.
    2
    Appellant was paroled in Cumberland County effective September 4, 2015.
    CP-21-CR-0003144-2012, at 8.
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    Appellant also challenges the discretionary aspects of her sentence.
    Although Appellant did not file a post-sentence motion nunc pro tunc, it
    appears that the PCRA court, when reinstating her direct appeal rights,
    considered her post-sentence claims. See Trial Ct. Op. at 2-3.          Appellant
    set forth in her brief a concise statement of reasons relied on for allowance
    of appeal, asserting, inter alia, that the trial court “failed to put the
    reasoning for the state incarceration on the record . . . .” Appellant’s Brief
    at 12.
    We conclude Appellant has preserved a claim that the trial court failed
    to state its reasons for the sentence imposed and agree relief is due in light
    of this Court decision in Commonwealth v. Flowers, ___ A.3d ___, ___,
    
    2016 WL 6157509
     at *7 (Pa. Super. Oct. 24, 2016). Thus, on remand, the
    trial court shall also “articulate reasons for the new sentence.” 
    Id.
    Judgment of sentence vacated.         Case remanded for resentencing.
    Jurisdiction relinquished.
    Judge Shogan joins the memorandum.
    Judge Bowes concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/4/2017
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