Com. v. White, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY WHITE :
:
Appellant : No. 756 EDA 2020
Appeal from the Judgment of Sentence Entered February 6, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002429-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY WHITE :
:
Appellant : No. 757 EDA 2020
Appeal from the Judgment of Sentence Entered February 6, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002430-2012
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 17, 2021
Billy White (Appellant) appeals pro se1 from the judgments of sentence
imposed February 6, 2020, in the Montgomery County Court of Common
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* Former Justice specially assigned to the Superior Court.
1Appellant was permitted to represent himself following a Grazier hearing in
November of 2018. See Commonwealth v. White, 796 EDA 2018 (unpub.
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Pleas, following this Court’s second remand for resentencing on two criminal
dockets, CP-46-CR-0002429-2012 (the Drug Case), and CP-46-CR-0002430-
2012 (the Burglary Case). On appeal,2 Appellant contends the trial court
should recuse itself from further proceedings, and presents the following
challenges to the court’s February 2020 resentence: (1) the trial court
violated his due process rights by imposing two counts to run consecutively,
when they were originally imposed concurrently, and have now expired; (2)
the court imposed a lengthier sentence upon remand when the aggregate
sentence originally imposed was only five to 10 years’ imprisonment; (3) the
court ignored his double jeopardy claim regarding a probation violation
sentence; (4) the court re-imposed an illegal mandatory minimum sentence
under Alleyne v. United States, 570 U.S. 99 (2013); (5) the court imposed
a probationary term for a sentence that had expired; and (6) the court failed
to reimburse him for costs improperly imposed. We affirm.
The relevant facts and protracted procedural history underlying these
appeals are as follows. The Drug Case originated from the October 2011
search of a vehicle Appellant abandoned at a residence in Lower Providence
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memo. at 1 n.3) (Pa. Super. 2019); Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998). He has proceeded pro se since that time. At the most recent
sentencing hearing, Appellant affirmed that he still wished to proceed pro se,
and rejected the trial court’s offer to continue the proceedings so that
Appellant could apply for a public defender. See N.T., 2/6/20, at 3-4, 15-16.
2This Court consolidated these appeals sua sponte by order entered May 4,
2020.
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Township, Montgomery County. See Commonwealth v. White, 763 EDA
2013 (unpub. memo. at 1-4) (Pa. Super. 2014). Police officers responding to
the call of an abandoned vehicle recovered more than 10 grams of cocaine
hidden inside the CD compartment. Id. at 2. A subsequent investigation led
to Appellant as the operator of the vehicle at the time it was abandoned. Id.
at 1.
The Burglary Case stemmed from a February 26, 2012, incident when
Appellant broke into the home of his then-girlfriend. See Commonwealth
v. White, 766 EDA 2013 (unpub. memo. at 1-5) (Pa. Super. 2014). Appellant
arrived at the home at approximately 2:00 a.m., and insisted his girlfriend
come out to his car. Id. at 2. When she refused and directed him to leave
the property, he entered without permission, pulled a gun on her and
threatened to “pistol whip” her if she did not comply. Id. (citation omitted).
She accompanied him to his car, where Appellant continued to threaten her
and her daughter. Id. at 3. Fortunately, a police officer responded to a 911
call, and arrested Appellant. Id. at 4. A search of that car revealed marijuana
and a firearm. Id.
The Burglary Case was tried first. On November 27, 2012, a jury
convicted Appellant of burglary, criminal trespass, terroristic threats, carrying
a firearm without a license, and possession of drug paraphernalia.3 The Drug
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318 Pa.C.S. §§ 3502(a)(1), 3503(a)(1)(i), 2706, 6106(a)(1); 35 P.S. § 780-
113(a)(32).
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Case trial began the next day before the same trial court. On November 29,
2012, a jury convicted Appellant of possession with intent to deliver (PWID)
cocaine, possession of cocaine,4 and possession of drug paraphernalia.
On February 8, 2013, the court sentenced Appellant on both dockets, as
well as two probation violation matters. On the Drug Case, the court imposed
a mandatory minimum sentence of five to 10 years’ imprisonment for PWID,5
a concurrent term of one to three years for possession of cocaine, and a
concurrent term of one year probation for possession of paraphernalia. On
the Burglary case, the court sentenced Appellant to a mandatory minimum
five to 10 years’ imprisonment for burglary,6 a concurrent term of one to seven
years for criminal trespass, a concurrent 3½ to seven years for the firearms
offense, a concurrent one to five years for terroristic threats, and a concurrent
term of one year probation for the paraphernalia charge. The trial court
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4 35 P.S. §§ 780-113(a)(16), (30).
5 The court applied the mandatory minimum sentence based upon the weight
of the cocaine recovered from the car. See 18 Pa.C.S. § 7508(a)(2)(ii). This
statute was later held to be unconstitutional pursuant to Alleyne (fact that
increases mandatory minimum sentence “must . . . be submitted to the jury
and found beyond a reasonable doubt”). See Commonwealth v. Cardwell,
105 A.3d 748, 749, 755 (Pa. Super. 2014).
6 The court applied the mandatory minimum based upon Appellant’s visible
possession of a firearm during the burglary. See 42 Pa.C.S. § 9712(a). This
statute, too, was later declared unconstitutional under Alleyne. See
Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa. Super. 2014).
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further ordered that the PWID sentence in the Drug Case run consecutive to
the probation revocation sentences, and the burglary sentence in the Burglary
Case run consecutive to the PWID sentence. See N.T., 2/8/13, at 19-20.
Thus, the court imposed an aggregate sentence of 10 to 20 years’
imprisonment for the Drug and Burglary Cases. Appellant’s judgments of
sentence in both cases were affirmed by this Court on direct appeal. See
White, 763 EDA 2013 (Drug Case);7 White, 766 EDA 2013 (Burglary Case).
In September of 2014, Appellant filed timely petitions for post-
conviction collateral review in both cases. The trial court subsequently denied
relief. However, on appeal, this Court remanded both cases for resentencing,
after concluding the mandatory minimum sentences imposed by the trial court
were unconstitutional under Alleyne and its progeny. See Commonwealth
v. White, 3255 EDA 2016 (Pa. Super. Dec. 19, 2017) (Drug Case);
Commonwealth v. White, 3130 EDA 2016 (Pa. Super. Dec. 26, 2017)
(Burglary Case).8
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7 We note that in the Drug Case appeal, this Court vacated the judgment of
sentence in part, concluding that Appellant’s conviction of possession of
cocaine should have merged for sentencing purposes with his conviction of
PWID. See White, 763 EDA 2013 (unpub. memo. at 7). However, because
the sentence for possession ran concurrently with the sentence for PWID, and
did not affect the overall sentencing scheme, the panel determined it was not
required to remand for resentencing. Id.8 In both cases, this Court affirmed the PCRA court’s denial of relief on all
other issues.
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Upon remand, the trial court conducted a resentencing hearing on
January 26, 2018. At the conclusion of the hearing, the court imposed the
following sentence: (1) on the Burglary Case — five to 10 years’ incarceration
for burglary, a consecutive 3½ to seven years for the firearms offense, a
consecutive one to five years for terroristic threats, and a concurrent one year
probation for possession of paraphernalia;9 and (2) on the Drug Case — 2½
to 10 years for PWID, six months to two years for possession of cocaine,10 and
a concurrent one year probation for possession of paraphernalia. See N.T.,
1/26/18, at 18-19. At the hearing, the court stated that the sentence for
possession in the Drug Case would run consecutive to the Burglary Case, for
an aggregate term of 10 to 22 years’ imprisonment. Id. at 19. However, the
docket sheet for the Drug Case indicated that the PWID sentence (2½ to 10
years) would run consecutive to the Burglary Case, which would amount to an
even lengthier sentence. See Trial Docket Drug Case at 7.
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9 At the resentencing hearing, the parties agreed that Appellant’s conviction
of criminal trespass should merge for sentencing purposes with his conviction
of burglary. See N.T., 1/26/18, at 4.
10 We note that, on direct appeal, this Court vacated Appellant’s sentence for
possession of cocaine upon determining the conviction should have merged
for sentencing purposes with his conviction of PWID. See White, 763 EDA
2013 (unpub. memo. at 7). Neither Appellant nor the Commonwealth
objected when the trial court imposed a separate sentence for this crime at
the January 2018 sentencing hearing. However, at the February 2020
sentencing hearing, both the Commonwealth and trial court noted that the
possession conviction merged with the PWID conviction. See N.T., 2/6/20, at
9.
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Appellant filed a timely pro se appeal at both cases.11 On December 3,
2019, this Court issued a single memorandum decision, vacating the January
2018 judgment of sentence and remanding for resentencing. 12 White, 796
EDA 2018 (unpub. memo. at 1-2). First, the panel found the record was
unclear as to the original, aggregate term of imprisonment imposed at the
February 2013 sentencing hearing. See id. at 5. While the trial court
announced it was imposing an aggregate sentence of 10 to 20 years’
imprisonment for both cases, the panel noted that the sentencing forms
seemed to indicate the cases would run concurrently, for an aggregate term
of only five to 10 years’ imprisonment. Id. Thus, regardless of whether the
maximum aggregate sentence imposed in January of 2018 was 22 years or
greater, the panel concluded the trial court improperly imposed a lengthier
sentence at resentencing (22 or more years) than was originally imposed (10
or 20 years). See id. at 6; Commonwealth v. Barnes, 167 A.3d 110, 123-
24 (Pa. Super. 2017 (en banc) (to rebut presumption of vindictiveness, when
trial court increases defendant’s sentence upon resentencing, court must
affirmatively state objective reasons for doing so on the record). Thus, the
panel was compelled to vacate the January 2018 judgment of sentence and
remand for resentencing. In addition the panel identified several other issues
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11 Appellant was permitted to represent himself following a Grazier hearing
in November of 2018. See supra at n.1.
12 Both cases were listed under the same appellate court docket number.
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for the trial court to address on remand: (1) whether the court improperly
reimposed routine costs and fees; (2) whether Appellant was properly credited
for time-served; and (3) whether Appellant had completed serving his one-
year probationary sentences for both paraphernalia convictions. See White,
796 EDA 2018 (unpub. memo. at 8-9). The panel further instructed:
[A]t resentencing, the court shall clarify the contradictions found
in the certified record concerning the original sentences issued in
2013. Specifically, the contradictions noted above regarding the
aggregate sentence as announced in open court and as found in
the written 2013 sentencing forms. This is necessary as the
original sentence provides the baseline for comparison for
subsequent resentencing.
Id. at 9-10.
The trial court conducted a second resentencing hearing on February 6,
2020, at which time it addressed the concerns raised by this Court as follows:
First, this court ordered reimbursement of the costs and fees
dating from . . . January 26, 2018, the date the duplicative costs
and fees were imposed.
Next, as to time credit, this court determined none was
owed to [Appellant] on [the Burglary Case] or [the Drug Case],
and explained the reasons for this as follows. [Appellant] was
credited with the 9 months and 20 days’ back time, from February
26, 2012 until December 16, 2012, when at the February 8, 2013
sentencing, he was also sentenced on two probation violations at
CCP dockets 6133-2010 and 8501-2010. At the 2013 sentencing,
this court stated as follows:
On the file at 8301 of 2010, there he’ll receive his back time,
9 months, 20 days. That will run from February 26, 2012.
At 6133, the other violation, he’ll receive the balance of the
back time, nine months, 20 days. That will run concurrent
from February 26, 2012.
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These judgments of sentence were never appealed, the judgments
of sentence became final, and [Appellant] served those sentences.
He is not entitled to duplicate credit.
As to the 2013 baseline sentence, this court reviewed
carefully the sentencing sheets and the previous sentencing
proceedings, and determined with one hundred percent certainty
that the original sentencing scheme was to impose a 10-20 year
sentence. This court specifically concluded that a 5-10 year term
was never considered, intended, or imposed, and any confusion
otherwise resulted from a clerical error on the 2013 sentencing
sheet.
Trial Ct. Op., 5/19/20, at 4-5 (record citations omitted).
After reviewing the sentencing guideline ranges for each offense,13 the
trial court imposed the following sentence: (1) on the Burglary Case — five
to 10 years’ imprisonment for burglary, a consecutive 2½ to five years for the
firearms offense, and a concurrent one to five years for terroristic threats; and
(2) on the Drug Case — 2½ to five years’ imprisonment for PWID, to run
consecutively to the Burglary Case. See N.T., 2/6/20, at 31. No further
penalty was imposed on the paraphernalia convictions. Furthermore, the trial
court explicitly stated: “This is a 10-to-20 years sentence[.]” Id. These
timely appeals followed.14
Appellant raises eight claims on appeal:
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13 See N.T., 2/6/20, at 8-10.
14 In compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),
Appellant filed a separate notice of appeal at each trial court docket. See id.
at 977 (mandating that “when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be filed”). He
also complied with the court’s directive to file concise statements of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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1. Whether the trial court should recuse himself from further
proceedings of [Appellant] due to bias and vindictiveness and
[retaliatory] motives by denying . . . Appellant of his Fifth and
Fourteenth Amendment[ ]Due Process Rights . . . for [the Drug
Case and the Burglary Case?]
2. Whether the trial court on remand at resentencing committed
an abuse of discretion and error in law denying [Appellant] his
Fifth and Fourteenth Amendment Due Process Rights . . . by
changing [the PWID charge in the Drug Case] from the controlling
case to consecutive to [the burglary charge in the Burglary Case]
when it is legally complete now[?]
3. Whether the trial court on remand at resentencing committed
an abuse of discretion and an error in law denying [Appellant] his
Fifth and Fourteenth Amendment Due Process Rights . . . by not
enter[taining Appellant’s] double jeopardy claim under Comm. v.
Wolfe, for case 8501-2010[?]
4. Whether the trial court violated the Pennsylvania law [by
denying Appellant] his Fifth and Fourteenth Amendment Due
Process Rights . . . at resentencing when the original 2013
sentencing forms submitted indicated the sentence for [Counts 1
in both the Drug and Burglary Cases] would run concurrent with
each other there by resulting in a total sentence of 5 to 10 years[?]
5. Whether the trial court on remand at resentencing committed
an abuse of discretion or error in law by denying [Appellant] his
Fifth and Fourteenth Amendment Due Process Rights . . . [w]hen
the original 2/8/13 sentencing scheme had [Count 3 of the
Burglary Case] running concurrent with [Count 1 of the Drug Case
and] it was never corrected and still runs consecutive to [Count 1
of the Burglary Case?]
6. Whether the trial court on remand at resentencing committed
an abuse of discretion and an error in law by leaving a
sentence[ing] error go uncorrected and still illegal under
[A]lleyne for [the Burglary Case?]
7. Whether the trial court on remand at resentencing committed
an abuse of discretion and an error in law when [the February
2013] sentencing forms indicated a 1 year concurrent probation
to start 2/8/13 but [Appellant] was sentenced to a consecutive
term of a 1 year probation to start after [the Drug and Burglary
Cases e]xpire[?]
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8. Whether the trial court is in violation of [Appellant’s]
Constitution[al] Rights by denying the Superior Court[’]s decision
on Lehman by reimposing a[n] inactive cost from 2001 when this
court over ruled the trial court on this decision and also
[Appellant] was[ not] reimburse[ed] and cost is not vacated for
[the Drug Case?]
Appellant’s Brief at 4-5.
First, Appellant contends the trial court should recuse itself from further
proceedings because, in his view, the court has been “unfair . . . and
retaliatory towards him[.]” Appellant’s Brief at 10. Both the trial court and
the Commonwealth insist Appellant waived this claim. See Trial Ct. Op. at 8;
Commonwealth’s Brief at 9-11. We agree.
It is well-established that “a motion for recusal is initially directed to and
decided by the jurist whose impartiality is being challenged.”
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998). The jurist must
then consider whether they can rule impartially, and that decision is “personal
and unreviewable[.]” Id. “Where a jurist rules that [they] can hear and
dispose of a case fairly and without prejudice, that decision will not be
overruled on appeal but for an abuse of discretion.” Id. Accordingly, a party
who seeks recusal of a trial court judge must “raise the objection at the earliest
possible moment, or . . . suffer the consequence of being time barred.”
Commonwealth v. Luketic, 162 A.3d 1149, 1158 (Pa. Super. 2017) (citation
omitted).
With regard to the February 6, 2020, resentencing hearing, Appellant
did not move for recusal of the trial court until March 4, 2020, after he filed
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his notices of appeal.15 At that point, the trial court had no authority to
consider his motion.16 See Pa.R.A.P. 1701(a) (“[A]fter an appeal is taken . .
. the trial court . . . may no longer proceed further in the matter.”).
Accordingly, we agree that Appellant’s recusal claim is waived.
Appellant’s remaining claims challenge the sentence imposed by the trial
court on February 6, 2020.17 First, he argues the court violated his due
process rights by restructuring his sentence so that some sentences,
previously imposed to run concurrently, now run consecutively. See
Appellant’s Brief at 12, 15, 17. He insists that pursuant to the “original/correct
commitment date” some of these sentences are now complete. See id. at 12,
17. He also asserts the original sentencing forms indicated the sentences on
the Burglary and Drug Cases would run concurrently, for an aggregate
sentence of only five to 10 years’ imprisonment. Id. at 15.
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15 We note Appellant sought recusal of the trial judge on three prior occasions
after filing an appeal from the lower court’s denial of PCRA relief. See Motion
for Transcripts and Recusal of Trial Court, 10/21/26; Motion for Recusal of
Trial Judge, 12/19/16; Motion for Recusal of Trial Judge, 1/5/17. The PCRA
court denied relief by order filed July 5, 2017, because the case was pending
on appeal. See Order, 7/5/17. Appellant never sought recusal of the trial
court following the Superior Court’s 2019 remand.
16In any event, we note the court did enter an order denying the recusal
motion on May 19, 2020. Order, 5/19/20.
17 Appellant’s statement of questions is repetitive and convoluted. Thus, we
will summarize and consolidate the issues as they appear in his brief.
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Next, Appellant contends the trial court ignored his double jeopardy
claim concerning a probation revocation sentence at trial court docket “8501-
2010.” Appellant’s Brief at 14. He maintains he “did the time three times”
for this revocation, and the court did not properly credit him for time served.
Id. Similarly, he maintains the trial court left “a sentence error go uncorrected
and still illegal” when it imposed a five to 10 years’ mandatory minimum
sentence for burglary in violation of Alleyne. Id. at 19.
Appellant’s final two claims also concern sentencing errors that he
believes the trial court failed to correct. He argues the court imposed a
“consecutive term of a full year probation” on his possession of paraphernalia
convictions, when his originally imposed concurrent one year terms would
have expired. Appellant’s Brief at 20. He also insists the court “reimposed an
inactive cost from 2001” and did not reimburse for the costs imposed at the
Drug Case docket. Id. at 21.
Preliminarily, we must consider whether any of Appellant’s issues
challenge the discretionary aspects of his sentence. Such challenges are not
appealable as of right, and an appellant must petition this Court for permission
to appeal. See Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super.
2017) (en banc). To invoke our jurisdiction, an appellant must preserve the
claim at sentencing or in a post-sentence motion, file a timely appeal, include
a separate statement of reasons relied upon for appeal in his brief pursuant
to Pa.R.A.P. 2119(f), and raise a substantial question that the sentence is not
appropriate under the Sentencing Code. Id. (citation omitted). However,
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when an appellant fails to comply with Rule 2119(f), and the Commonwealth
objects to the omission, “this Court may not review the merits of the claim,
and we deny allowance of appeal.” Commonwealth v. Kiesel, 854 A.2d 530,
533 (Pa. Super. 2004). In the case sub judice, Appellant did not include a
Rule 2119(f) statement in his brief and the Commonwealth objected to the
omission. See Commonwealth’s Brief at 13. Thus, to the extent any of
Appellant’s claims challenge the discretionary aspects of his sentence, they
are waived. See Barnes, 167 A.3d at 122.
Although Appellant does not state so expressly, his claim that that the
trial court violated his due process rights by restructuring his sentence upon
remand, in conjunction with his request for recusal, implies that the new
sentence was the result of judicial vindictiveness. Such a claim, however,
implicates the discretionary aspects of his sentence, and is, thus, waived as a
result of his failure to comply with Rule 2119(f). See Barnes, 167 A.3d at
122 (claim that trial court imposed more severe sentence on remand, which
“invites a presumption of vindictiveness,” challenges discretionary aspects of
sentencing).
Nevertheless, even if we were to address this issue, we would conclude
no relief is warranted. Appellant’s underlying contention is that the trial court
had no authority to restructure his sentence upon remand. He is simply
incorrect. Although a trial court, upon remand for resentencing, may not
increase an aggregate sentence without providing specific, objective
reasons for doing so, a court may restructure an aggregate sentence to
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“preserv[e] the integrity of a prior sentencing scheme.” See Barnes, 167
A.3d at 124. Here, as in Barnes, “Appellant’s argument requires us to look
only at one part of his new sentence and compare it to one part of his old
sentence without examining the overall sentencing scheme of both the new
and old sentences.” See id. In Barnes, the en banc panel concluded the
defendant was “not the victim of a vindictive sentence . . . as his aggregate
sentence after remand remained the same.” Id. at 125. The same is true
here. The trial court opined:
In this case, this court sought to retain the integrity of the
original sentencing scheme[. A]fter reviewing the entire record,
this court believes now, as it believed at the time of the 2013
sentencing hearing for all of the reasons stated in 2013, that a 10
– 20 year sentence is appropriate. It was this court’s intention to
uphold the integrity of the 2013 sentencing scheme and to
reimpose an aggregate sentencing scheme of 10 – 20 years. The
fact that the individual sentences differed from that of 2013 is of
no moment because this court was permitted [to] make these
adjustments and restructure the sentence to preserve the
sentencing scheme. No relief is due.
Trial Ct. Op. at 9-10. We agree. The trial court imposed an aggregate
sentence of 10 to 20 years’ imprisonment in 2013, and an aggregate sentence
of 10 to 20 years’ imprisonment in 2020. Thus, Appellant has not
demonstrated the court violated his due process rights or imposed a vindictive
sentence.
To the extent Appellant insists his 2013 sentencing forms indicate that
the sentences in the Drug and Burglary Cases would run concurrent with each
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other, the trial court determined the forms contained a clerical error. The
court explained:
At the 2013 sentencing, this Court specifically stated on the
record that consecutive sentencing was warranted due to the
seriousness of the crimes along with the length and breadth of the
crimes. Then this court went on to sentence [Appellant] on both
. . . dockets . . . . However, the sentencing sheet from [the
Burglary Case] shows the box next to consecutive/concurrent
checked off and consecutive is crossed out. This is where the
confusion has arisen, and therefore the Superior Court directed a
clarification of the original sentence in this remand. This court
having reviewed the entire record, including the sentencing notes
of testimony from 2013, is one hundred percent certain that the
intention was to impose[,] as stated in open court, that the
sentences were to run consecutive to each other, making it an
aggregate sentence of 10 – 20 years. It was never intended that
the sentences be concurrent and the sentencing sheet which
states they are to run concurrent to each other was a clerical error.
Trial Ct. Op. at 12 (record citations omitted).
Our review of the transcript of the February 8, 2013, sentencing hearing
reveals the trial court clearly stated the five to 10 year sentence for burglary
in the Burglary Case would run consecutive to the five to 10 year sentence for
PWID in the Drug Case. N.T., 2/8/13, at 19. Thus, the court originally
imposed an aggregate sentence of 10 to 20 years’ imprisonment.18
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18 The Commonwealth contends that the 2013 sentencing order did not
contain an error. Commonwealth’s Brief at 16-17. We agree. Although the
2013 sentencing orders are not included in the certified record, the
Commonwealth attached copies of the orders to its brief. See id. at R. 33a-
37a. The sentencing order for the Burglary Case clearly indicates the five to
10 year sentence imposed on Count 1 (Burglary) was to run consecutive to
“2429-12,” the Drug Case. See id. at R. 36a, Burglary Case Sentencing
Order, 2/8/13, at 2.
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Appellant’s remaining claims appear to challenge the legality of his
sentence. First, he asserts the trial court did not properly credit him for time
served, and that he “did the time three times” for a probation revocation
sentence for case “8501-2010.” See Appellant’s Brief at 14; Commonwealth
v. Gibbs, 181 A.3d 1165, 1166 (Pa. Super. 2018) (“A claim asserting that the
trial court failed to award credit for time served implicates the legality of the
sentence.”). The trial court concisely disposed of this claim as follows:
[Appellant] seems to misunderstand that he was not resentenced
on [trial docket] 8501-2020, and that the only reason this case
came up was in regard to the time credit issue. Wherein this court
addressed that issue and concluded that [Appellant] is not due
any time credit on [the Burglary and Drug Cases] because he was
given this credit of time on [two probation revocation cases], and
that he was not entitled to double credit. [See N.T., 2/6/20, at
6-7, 29.] This did not raise a double jeopardy issue, nor did
[Appellant] raise a double jeopardy issue at sentencing.
Trial Ct. Op. at 15. The notes of testimony from both the February 2013 and
February 2020 sentencing hearings support the trial court’s assertion that
Appellant received credit for time served on his probation violation sentences.
See N.T., 2/8/13, at 7-8, 18-19; N.T., 2/6/20, at 6-7, 29. Thus, no relief is
warranted.
To the extent Appellant argues the trial court reimposed an illegal
sentence in his Burglary Case, we again conclude he is mistaken. See
Appellant’s Brief at 19. Although the trial court reimposed a sentence of five
to 10 years’ imprisonment for Appellant’s conviction of burglary, it did not do
so pursuant to a mandatory minimum sentencing statute. Prior to imposing
sentence, the trial court reviewed the sentencing guidelines, which called for
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a minimum standard range sentence of 48 to 60 months for burglary. N.T.,
2/6/20, at 9. Accordingly, when imposing the five to 10 year sentence, the
court explicitly stated it was imposing a “standard range sentence.” Id. at
31. Thus, because the court did not impose a mandatory minimum sentence,
no relief is due.
Appellant’s final two issues concern purported sentencing errors. He
first asserts the court “restructured [his] 1 year concurrent probation
sentences to consecutive . . . when both sentences should have expired[.]”
Appellant’s Brief at 20. Appellant is simply incorrect. The trial court imposed
no further penalty on the paraphernalia offenses at the February 2020
resentencing hearing. See N.T. 2/6/20, at 24-25, 31.
Finally, Appellant contends the trial court “reimposed an inactive cost”
and failed to reimburse him for improper costs imposed in the Drug Case. See
Appellant’s Brief at 21. Again, Appellant’s assertion is not supported by the
record. At the February 2020 resentencing hearing, the trial court directed
that any costs Appellant paid pursuant to the January 2018, resentencing
hearing, would be refunded to him. See N.T., 2/6/20, at 5-6, 29. Moreover,
no additional costs were imposed. See also Sentencing Orders, 2/6/20.
Thus, no relief is warranted.
Judgments of sentence affirmed.
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J-S52020-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2021
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