Com. v. Richter, R. ( 2020 )

J-S75025-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAY JUSTIN RICHTER :
:
Appellant : No. 859 WDA 2019
Appeal from the Judgment of Sentence Dated January 29, 2018,
in the Court of Common Pleas of Somerset County,
Criminal Division at No(s): CP-56-CR-0000150-2016.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 8, 2020
Ray Justin Richter appeals, nunc pro tunc, from a judgment of sentence,
after a PCRA1 court vacated his original sentence and a trial court resentenced
him to one-and-a-half to five years’ incarceration. We partially vacate and
amend that sentence to award Richter credit for additional time served.
On January 23, 2016, Richter stole $321.13 from a Sheetz gas station
at knife point. Police arrested him five days later. Richter stayed in jail until
April 8, 2016, when he made bail. He returned to jail on April 25, 2016, when,
upon petition of the Commonwealth, the court revoked his bond and issued a
bench warrant for Richter’s arrest due to his failure to follow one of his
conditions for bail – i.e., to have no contact with his victims.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J-S75025-19
He thereafter remained incarcerated, and plea negotiations ensued. The
Commonwealth and Richter’s attorney agreed, albeit incorrectly, that a deadly
weapon enhancement would not apply to his robbery sentence, if Richter
pleaded guilty to all charges. Richter therefore pleaded guilty on May 5, 2016
to robbery, driving under the influence, forgery, and two counts of theft. 2
After accepting those pleas, the trial court remanded him to jail to await
sentencing, which occurred on July 6, 2016. At that point, Richter served a
total of 144 days of presentence incarceration.
The court then sentenced Richter to four to ten years of incarceration
for robbery, because, notwithstanding the parties’ plea deal, it concluded that
the deadly weapon enhancement applied. Additionally, the court sentenced
him to three days to six months of incarceration for DUI, and six months to
five years of incarceration for one theft charge.3 It ordered Richter to serve
the robbery and theft sentences consecutively. As such, Richter faced an
aggregate sentence of 4½ to 15 years of imprisonment. The trial court also
credited Richter 144 days for time served.
Richter filed no post-sentence motion, and he did not appeal.
____________________________________________
2 18 Pa.C.S.A. § 3701(a)(1)(ii), 75 Pa.C.S.A. § 3802(d)(2), 18 Pa.C.S.A. §
4101(a)(1), and 18 Pa.C.S.A. § 3921(a). The convictions for driving under
the influence, forgery, and thefts were at separate docket numbers from the
events at the Sheetz.
3 Although irrelevant to this appeal, Richter’s original sentence also included
two years of probation for the other theft charge and five years of probation
for the forgery.
-2-
J-S75025-19
A year later, Richter filed a PCRA petition alleging ineffective assistance
of counsel, regarding his plea and sentence. The PCRA court “found that, as
a result of trial counsel’s and the Commonwealth’s mutual mistake of law
regarding the [deadly weapon enhancement, Richter] was denied the benefit
of the plea bargain he negotiated” on his robbery charge. Trial Court Opinion,
8/19/19, at 2. The PCRA court vacated the robbery conviction and allowed
Richter to withdraw his guilty plea to that charge. However, the court left his
other sentences undisturbed. See id. at 2-3.
The Commonwealth reinstated the charges arising from Richter’s actions
at the Sheetz – i.e., robbery, terroristic threats with intent to terrorize
another, simple assault, theft by unlawful taking, receiving stolen property,
disorderly conduct, and aggravated assault. Richter then immediately pleaded
guilty to aggravated assault.4 The trial court then remanded him to prison
until resentencing. In explaining its sentence, the court said:
On January 29, 2018, [Richter] was sentenced [for
aggravated assault] to incarceration in a State Correctional
Institution for 18 months to 5 years, to be served
concurrently with any other sentences [he] was presently
serving. [Richter] was again granted credit for time served
in presentence incarceration, totaling 144 days, from
January 28, 2016 to April 8, 2016 and from April 25, 2016
to July 5, 2016.
Trial Court Opinion, 8/19/19, at 3.
____________________________________________
4 18 Pa.C.S.A. § 2702(a)(4).
-3-
J-S75025-19
The trial court gave Richter no credit for the time he served between
July 6, 2016 and January 29, 2018 towards his aggravated-assault sentence.
Eventually, the trial court reinstated Richter’s appellate rights, nunc pro
tunc, and ordered him to file a post-sentence motion. Richter filed the motion
requesting the trial court to reconsider his sentence and give him credit for
time served. The court denied both requests, and this timely appeal followed.
Richter raises two appellate issues:
1. Whether the trial court erred in not crediting [him]
with both the “presentence” incarceration he served
in this case and the “post-sentence” incarceration he
served in this case?
2. Whether the trial court erred in not reconsidering the
discretionary aspects of [his] sentence?
Richter’s Brief at 3. We discuss each issue in turn.
1. Credit for Time Served
First, Richter claims that the Sentencing Code required the trial court to
credit him with time served from his original sentencing on January 28, 2016
through his resentencing on January 29, 2018. He believes the trial court
should have credited him with two years and one day, which includes 2016’s
leap day in February, for a total of 732 days. See id. at 9. He argues the
trial court should have applied 42 Pa.C.S.A. § 9760(2) and given him credit
toward his aggravated-assault sentence for the time he served between his
original sentence for the robbery and theft convictions and his aggravated-
assault sentence.
-4-
J-S75025-19
A “trial court’s failure to award credit for time spent in custody prior to
sentencing involves the legality of sentence.” Commonwealth v. Beck, 848
A.2d 987, 989 (Pa. Super. 2004). “Because the legality of a sentence presents
a pure question of a law, our scope of review is plenary, and our standard of
review is de novo.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875,
889 (Pa. Super. 2019), appeal denied, 221 A.3d 644 (Pa. 2019).
“Our Supreme Court has stated that an illegal sentence is one that
exceeds the statutory limits.” Commonwealth v. Berry, 877 A.2d 479, 482-
83 (Pa. Super. 2005) (en banc) (quotations and citation omitted). This Court
has said, “if no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction.” Id. Thus, we have held that “a
sentence is illegal where a statute bars the court from imposing that
sentence.” Id. at 483.
To determine whether Richter is entitled to additional time credit, we
must construe section 9760 of the Sentencing Code. 42 Pa.C.S.A. § 9760.
Section 9760 provides:
(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
-5-
J-S75025-19
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.
(3) If the defendant is serving multiple sentences, and if
one of the sentences is set aside as the result of direct or
collateral attack, credit against the maximum and any
minimum term of the remaining sentences shall be given for
all time served in relation to the sentence set aside since
the commission of the offenses on which the sentences were
based.
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or acts
that occurred prior to his arrest, credit against the maximum
term and any minimum term of any sentence resulting from
such prosecution shall be given for all time spent in custody
under the former charge that has not been credited against
another sentence
42 Pa.C.S.A. § 9760.
The trial court concluded that subsection (3), rather than subsection (2)
or (3) applies to Richter’s new sentence. The court explained:
For reasons discussed infra, we believe that [Richter] is
not entitled to credit for the time he spent in incarceration
since July 6, 2016. Granting such credit, we suggest, would
violate the plain meaning of 42 Pa.C.S. § 9760(3)[.]
[Section] 9760(3) makes clear that when a [defendant]
serving multiple cases has one sentence set aside, credit for
time served in relation to the sentence set aside shall be
given against the remaining sentences.
Applying the plain meaning of the statute to the case sub
judice, [Richter] is not entitled to the relief he claims.
[Richter] was originally sentenced on July 6, 2016, wherein
we ordered the incarceration sentences in No. 150 Crim.
2016 (4 years to 10 years) and 989 [Crim.] 2015 (6 months
to 5 years) be served consecutively, resulting in an
aggregate sentence of 4½ to 15 years. As a consequence
of this Court’s Order of October 27, 2017, the sentence in
-6-
J-S75025-19
No. Crim. 2016 was vacated and the sentence in No. 989
Crim. 2015 became [Richter’s] controlling incarceration
sentence. It is toward the minimum and maximum terms
of the sentence in No. 989 Crim. 2015 that [Richter’s] credit
for time served since July 6, 2016 must be applied.
Consequently, we suggest [Richter] is not entitled to credit
for time served in No. 150 Crim. 2016 beyond the 144 days
this Court has already granted him.
Trial Court Opinion, 8/19/19, at 5-6 (citation omitted). The Commonwealth
asserts that “the trial court’s reasoning is sound.” Commonwealth’s Brief at
6.
The above rationale provided by the trial court, as adopted by the
Commonwealth, misreads the plain language of Section 9760. The trial court’s
rationale does not account for the fact that Richter’s sentence at No. 150 Crim.
2016 was not only set aside, but Richter was reprosecuted and resentenced
at that docket. Therefore the plain language of subsection (2), infra, applies.
See, e.g. Commonwealth v. Diamond, 546 A.2d 628, 631-32 (Pa. Super.
1988) (holding that, following new trial and second conviction for offense of
risking a catastrophe, trial court erred in computing new sentence when thr
court failed to credit the defendant, pursuant to section 9760(2), with time he
had already served in custody on the prior sentence).
Stated differently, subsection (2) specifically deals with credit for time
served for conduct arising from the same acts or acts, which is the
circumstances presented in this case. Subsection (3), on the other hand,
applies to sentences for separate prosecutions that arise from unrelated
offenses, which is not applicable here. We read the plain language of
-7-
J-S75025-19
subsection (3) to apply whenever a person who is serving multiple sentences
has one sentence set aside and that person is not reprosecuted or resentenced
for the underlying crime. In such a situation, the person would not have a
new sentence imposed upon which to receive credit for the time he already
served, and, therefore, credit would be given on the remaining sentences.
See, e.g., Commonwealth v. Bailey, 392 A.2d 836, 836-37 (Pa. 1975)
(concluding that defendant, whose homicide conviction was reversed, was
entitled to time credit on his prison riot sentence).
Thus, Richter was entitled to additional credit for time he served under
the prior sentence at No. 150 Crim. 2016 pursuant to section 9760(2). That
being said, however, we note that Richter’s math is incorrect. As mentioned
above, he was not in continuous custody from his arrest on January 28, 2016
through his original July 6, 2016 sentencing. Thus, that period of time served
totaled only 144 days. Due to this custodial gap in 2016, the most credit for
time served that Richter may receive is 716 days, i.e., not the full two years
and a day that he requests in his appellate brief.
“Once we have determined that a sentence is illegal, we may remand
for [re]sentencing, or [we may] vacate and amend the invalid sentence
directly.” Commonwealth v. Kozrad, 474, 499 A.2d 1096, 1099 (Pa. Super.
1985). We see no reason to remand, when we can modify the order of
-8-
J-S75025-19
sentence to credit Richter properly under Section 9760.5 Accordingly, we
amend his sentence at the conclusion of this decision.
2. Discretionary Aspects of Sentencing
In Richter’s second appellate issue, he seeks to challenge the manner in
which the trial court exercised its discretion in resentencing him. A convicted
person does not have an automatic right to appeal the discretionary aspects
of his sentence. See, e.g., Commonwealth v. Moury, 992 A.2d 162, 170
(Pa. Super. 2010). He must instead convince us to review those discretionary
aspects.
This Court has articulated the following, four-part test to determine
whether to consider the merits of such an appellate claim. They are:
(1) whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
whether appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question that
the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. (some punctuation omitted).
____________________________________________
5 We note that Commonwealth v. Goldhammer, 517 A.2d 1280, 1283 (Pa.
1986) (holding that “remand to reconsider a sentence, where the disposition
by an appellate court has altered the sentencing scheme of the trial court,” is
appropriate), does not apply. There is no “sentencing scheme” on appeal for
our decision to disrupt, because the PCRA court left Richter’s other, original
sentences intact. Thus, Richter could only appeal his sentence for aggravated
assault. Appealing this single sentence did not cast the remainder of the now-
final, original sentencing scheme into doubt.
-9-
J-S75025-19
Richter timely appealed, nunc pro tunc; he moved for reconsideration of
the sentence; and he included a Rule 2119(f) statement in his appellate brief
requesting that we grant discretionary review. Thus, he has satisfied the first,
three prongs of our discretionary-aspects-allowance-of-review test.
We therefore consider the fourth prong — whether Richter raised a
substantial question in his 2119(f) statement. Such a statement raises a
substantial question “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent with a
specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Sierra,
752 A.2d 910, 912-13 (Pa. Super. 2000).
Richter’s statement does neither. He contends:
It is submitted that there are sufficient, compelling, and
substantial issues in this matter requiring appellate review
of the discretionary aspects of the sentence imposed by the
lower court. Specifically, [Richter] asserts that the unique
procedural posture of this case, in which his sentence was
vacated and he was sentenced again without getting the
post-sentence time served credited, justified a
reduced/mitigated sentence by the trial court. Furthermore,
[he] presented several certificates and accomplishments he
had made at the sentencing hearing in further support of a
reduced sentence, as well as his young age of 25.
Richter’s Brief at 8.
His first reason for requesting discretionary review is now moot, given
our analysis and decision above.
- 10 -
J-S75025-19
As for Richter’s other reasons for requesting discretionary review – i.e.,
that he presented certificates showing progress towards reformation and his
young age – these do not rise to the level of a substantial question under our
precedents. “That the court refused to weigh the proposed mitigating factors
as [Richter] wished, absent more, does not raise a substantial question.”
Moury, 992 A.2d at 175. Indeed, he cites to no authority in his 2119(f)
statement to support a contention that the events of his sentencing constitute
a substantial question. Also, Richter cites no specific provision of the
Sentencing Code that the trial court allegedly misapplied. Nor does he
otherwise contend that his resentencing was “contrary to the fundamental
norms which underlie the sentencing process.” Sierra, supra.
Therefore, Richter’s application for review of the discretionary aspects
of his sentence is denied.
In sum, because the trial court misconstrued the time-served-crediting
provisions of 42 Pa.C.S.A. § 9760 and imposed an illegal sentence, we vacate
that portion of Richter’s sentence awarding only 144 days of credit at docket
No, 150 Crim. 2016. Under Kozrad, supra, we amend that paragraph as
follows: “The defendant is entitled to credit for time served against this
sentence totaling 716 days, extending from January 28, 2016 to April 8, 2016
and from April 25, 2016 to January 28, 2018.”
Judgment of sentence vacated in part; judgment of sentence affirmed
as amended.
- 11 -
J-S75025-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2020
- 12 -