Com. v. Smith, D. ( 2023 )


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  • J-S27009-23
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                          :
    :
    :
    DASHAAN REGINALD SMITH                   :
    :
    Appellant             :   No. 145 MDA 2023
    Appeal from the PCRA Order Entered January 16, 2023
    In the Court of Common Pleas of Schuylkill County Criminal Division at
    No(s): CP-54-CR-0000642-2021
    BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
    MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 18, 2023
    Appellant, Dashaan Reginald Smith, appeals from the post-conviction
    court’s January 16, 2023 order denying his timely-filed petition under the Post
    Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
    we affirm.
    The PCRA court briefly summarized the pertinent facts and procedural
    history of this case, as follows:
    [Appellant] appeared before this [c]ourt and entered a negotiated
    guilty plea for one count of Aggravated Harassment by Prisoner1
    on June 10, 2022. A second count of Disorderly Conduct was
    dismissed. He was sentenced to 27 … to 60 months in a state
    correctional institution to be served concurrent to Schuylkill
    County case No. 655-2019 and Philadelphia Case Nos. 3773-
    2014, 8433-2014 and 11428-2015. At the June 10, 2022 guilty
    plea hearing, the [c]ourt thoroughly colloquied [Appellant] on the
    written Memorandum of Plea Agreement which he reviewed,
    signed, and understood. The signed agreement made no mention
    of credit [for] time [served]. The [c]ourt also read [Appellant] his
    appellate rights, which [Appellant] acknowledged he understood.
    J-S27009-23
    A sentencing order memorializing the plea agreement was filed
    the same day. The [o]rder made no mention of credit time and
    [Appellant] filed neither a Motion for Reconsideration nor a Direct
    Appeal within the appropriate timeframe.
    1 18 Pa.C.S. § 2703.1.
    PCRA Court Opinion (PCO), 1/16/23, at 1-2.
    On September 29, 2022, Appellant filed a pro se document entitled,
    “Motion for Review Nunc Pro Tunc,” which the court properly treated as a PCRA
    petition.    The court appointed counsel, who filed an amended petition on
    November 3, 2022. Therein, Appellant argued that his trial counsel had acted
    ineffectively by improperly advising Appellant that in exchange for pleading
    guilty, he would not only receive a sentence that would run concurrently with
    his Schuylkill and Philadelphia County cases, but that Appellant would also
    receive credit for time served “back to the date of the incident.” Amended
    PCRA Petition, 11/3/22, at 2 (unnumbered).
    The court conducted a PCRA hearing, at which the following testimony
    was presented:
    [Appellant] testified … that while he knew his cases were being
    run concurrently at the time of the plea, he believed that he would
    have received time credit from either the date of the incident or
    the time bail was set and unable to be posted on this case in March
    of 2021[,] instead of starting his time only from the date he was
    sentenced. He testified that his plea counsel, … Adam Weaver,
    [Esq.,] failed to inform him of this[,] and had he known his
    minimum date would move, he would not have pled guilty to this
    case. [Appellant] was serving a state sentence at the time of the
    incident[,] and [at] the time bail was set and not posted. Although
    the subject sentence was to run concurrent to the state sentence
    he was serving, because there was no credit, his minimum
    sentence would automatically extend to September 10, 2024.
    -2-
    J-S27009-23
    Attorney Adam Weaver also testified. He has been an attorney
    for approximately 14 years and has practiced criminal law for
    several years. He testified he is very familiar with time[-]credit
    matters concerning inmates and estimated this issue has been
    before him approximately 500 times. He has also represented
    clients on PCRA petitions with time credit issues.
    Attorney Weaver testified that he represented [Appellant] in two
    Schuylkill County cases, one of which went to trial and returned a
    split verdict[,] which was currently pending on appeal. He said
    the original offer in this particular case was 3-8 years[’
    imprisonment,] consecutive to his other Schuylkill County case
    and his Philadelphia County cases. Mental health evaluations were
    obtained and took some time, but at the last minute, he was able
    to negotiate a concurrent plea offer. Attorney Weaver testified
    that [Appellant] did not receive any credit on this case because,
    while he had not been able to post bail [in this case], he had been
    serving time on his other two cases. He testified that he explained
    the concurrent nature to [Appellant,] and that the time would not
    begin until the date he was sentenced. Attorney Weaver felt that
    [Appellant] understood this, referencing the 2019 and 2021
    competency exams he had conducted[,] and [he] felt confident
    [Appellant] understood the credit explanation.          He recalled
    discussing credit time while [Appellant] was in a holding cell
    during jury selection.
    PCO at 2-3.
    Based on the testimony offered at the PCRA hearing, the court rejected
    Appellant’s ineffectiveness claim, explaining as follows:
    [Appellant] alleges ineffective assistance of plea counsel. A
    criminal defendant has a right to effective counsel during the plea
    process. Commonwealth v. Hickman, 
    799 A.2d 136
    , 141 (Pa.
    Super. … 2002). A claim of ineffective assistance of counsel will
    be granted only if the ineffectiveness caused the defendant to
    enter an involuntary or unknowing plea. 
    Id.
     Where the plea is
    entered on the advice of counsel, “the voluntariness of the plea
    depends on whether counsel’s advice ‘was within the range of
    competence demanded of attorneys in criminal cases.’” 
    Id.
    [(quoting Hill v. Lockhart, 
    474 U.S. 52
    , 56 … (1985)[)].
    First, [Appellant] alleges that plea counsel was ineffective for
    failing to properly explain the meaning and effect of a concurrent
    -3-
    J-S27009-23
    sentence. However, Attorney Weaver was clear and credible in
    his testimony that he spent some time discussing the implications
    of a concurrent sentence and that [Appellant] would not receive
    credit time. The plea agreement itself is also devoid of any
    mention of credit time.
    Argument was also presented that credit should be given from the
    date of the incident to the date of sentencing, as [Appellant] was
    unable to post bail during that time. However, he was already
    serving two separate state prison sentences when the incident
    occurred[,] and has been incarcerated the entire time. Under
    Pa.R.Crim.P. 705(B), “when a sentence is imposed on a defendant
    who is sentenced for another offense, the judge shall state
    whether the offense shall run concurrently or consecutively. If the
    sentence is to run concurrently, the sentence shall commence
    from the date of imposition unless otherwise ordered by the
    judge.” Furthermore, while the rule has slightly changed in more
    recent years, the Commonwealth Court has been clear that under
    the previous version of this rule, “a sentencing judge cannot direct
    that a sentence commence on a date prior to the date of
    sentencing when the defendant is serving time on an unrelated
    charge.” Doxsey v. Commonwealth of Pennsylvania, et al.,
    
    674 A.2d 1173
    , 1175 (Pa. [Cmwlth.] 1996).[1] Even if the [c]ourt
    had the discretion to provide credit time for [Appellant’s] pre-
    sentence incarceration, it was not [i]n the plea agreement and not
    addressed at the time of sentencing. Considering the last[-]
    minute nature of the plea offer changing from consecutive to
    concurrent, it’s questionable whether this would have even been
    agreeable to the Commonwealth.
    Id. at 3-4. Accordingly, the PCRA court issued an order denying Appellant’s
    petition.
    ____________________________________________
    1 Decisions of the Commonwealth Court are not binding upon this Court, but
    may serve as persuasive authority. See Pa.R.A.P. 126(b)(1)-(2) (unreported
    memorandum opinions of the Commonwealth Court filed after January 15,
    2008, may be cited as persuasive authority); Commonwealth v. Bowers,
    
    185 A.3d 358
    , 362 n.4 (Pa. Super. 2018) (stating that Commonwealth Court
    decisions are not binding on this Court but may be used as persuasive
    authority).
    -4-
    J-S27009-23
    Appellant filed a timely notice of appeal, and he timely complied with
    the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
    complained of on appeal. The court issued a Rule 1925(a) opinion on March
    2, 2023, stating that it was relying on the rationale set forth in its January 16,
    2023 opinion accompanying its order denying Appellant’s petition.         Herein,
    Appellant states one issue for our review: “Whether [Appellant] should be
    awarded time credit for days he spent in jail without bail[,] especially since
    his sentence was to run concurrent with another sentence?” Appellant’s Brief
    at 4.
    Preliminarily, we note that:
    “In reviewing the propriety of an order granting or denying PCRA
    relief, an appellate court is limited to ascertaining whether the
    record supports the determination of the PCRA court and whether
    the ruling is free of legal error.” Commonwealth v. Johnson, …
    
    966 A.2d 523
    , 532 ([Pa.] 2009). We pay great deference to the
    findings of the PCRA court, “but its legal determinations are
    subject to our plenary review.” 
    Id.
    Commonwealth v. Matias, 
    63 A.3d 807
    , 810 (Pa. Super. 2013).
    Here, Appellant’s entire argument on appeal consists of the following
    paragraph:
    A defendant must be given credit for any days spent in custody
    prior to the imposition of sentence, but only if such commitment
    is on the offense for which sentence is imposed.
    Com[monwealth]         v.   Infante,    
    63 A.3d 358
    [  (Pa.]
    Super.[]2013[)]. While [Appellant] was in custody for a prior
    offense, he was also being held on bail. There is no case law or
    statute which precludes him from also earning time credit on a
    new case while serving a prior sentence when bail is imposed. He
    certainly was being confined on the offense for which the new
    sentence was imposed. It would appear that the jurisdiction that
    -5-
    J-S27009-23
    set bail was at least preserving that option for consideration.
    Unfortunately, it was not considered[,] as his attorney testified at
    the PCRA hearing that he was not aware that bail had been set for
    his client. In fact, he was shocked to find out his client did have
    bail on this case. (N.T.[,] 12/16/22, [at] 15…). It is unknown if
    the District Attorney knew that bail had been set. Because the
    parties agreed on a concurrent sentence[,] and because
    [Appellant] was being held on bail for the case at hand, the days
    he spent in jail with bail set on this case should be credited to this
    sentence as well.
    Appellant’s Brief at 8-9.
    Initially, Appellant clearly omits any discussion of the only claim he
    raised before the PCRA court, which was that his plea counsel acted
    ineffectively by not advising him that he would not receive credit for time
    served from the date of his instant offense. Thus, he has waived any claim
    that the court erred in denying this ineffectiveness claim.
    We also observe that Appellant could have raised his time-credit
    argument before the sentencing court, or on direct appeal, yet he failed to do
    so. Nevertheless, we will address Appellant’s argument that he is entitled to
    credit for time served in this case, as “[a] claim asserting that the trial court
    failed to award credit for time served implicates the legality of the sentence.”
    Commonwealth v. Gibbs, 
    181 A.3d 1165
    , 1166 (Pa. Super. 2018) (citing
    Commonwealth v. Johnson, 
    967 A.2d 1001
    , 1003 (Pa. Super. 2009)). “[A]
    challenge to the legality of sentence cannot be waived.” Commonwealth v.
    Dickson, 
    918 A.2d 95
    , 99 (Pa. 2007) (citations omitted).
    Appellant seems to contend that he is entitled to credit for time he
    served from the point that bail was set in this case, as he could not post that
    -6-
    J-S27009-23
    bail and, therefore, he “certainly was being confined on the offense for which
    the new sentence was imposed.” Appellant’s Brief at 8. However, Appellant
    does not refute that at that same time, he was also confined on — and
    receiving credit for — his unrelated charges in Schuylkill and Philadelphia
    Counties. As the PCRA court pointed out, Rule 708(B) directs that a sentence
    imposed to run concurrently with another sentence “shall commence from the
    date of imposition unless otherwise ordered by the judge.”          Pa.R.Crim.P.
    708(B).    Moreover, the Doxsey Court persuasively declared that “a
    sentencing judge cannot direct that a sentence commence on a date prior to
    the date of sentencing when the defendant is serving time on an unrelated
    charge.” Doxsey, 
    674 A.2d at 1175
    . Thus, Appellant has failed to convince
    us that he is entitled to double credit for the time served between his failure
    to post bail and his sentencing in this case. Accordingly, we discern no error
    in the PCRA court’s denial of his petition for post-conviction relief.
    Order affirmed.
    Judgment Entered.
    Benjamin D. Kohler, Esq.
    Prothonotary
    Date: 10/18/2023
    -7-
    

Document Info

Docket Number: 145 MDA 2023

Judges: Bender, P.J.E.

Filed Date: 10/18/2023

Precedential Status: Non-Precedential

Modified Date: 12/13/2024