Com. v. Pisor, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSHUA LEE PISOR :
:
Appellant : No. 1142 WDA 2020
Appeal from the Judgment of Sentence Entered September 24, 2020
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000110-2020
BEFORE: LAZARUS, J., MURRAY, J. and COLINS, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 4, 2021
Joshua Lee Pisor appeals from the judgment of sentence, imposed in the
Court of Common Pleas of Butler County, after he entered a negotiated guilty
plea to possession with intent to deliver and conspiracy to commit possession
with intent to deliver.1 Counsel has filed an Anders2 brief and a petition to
withdraw from her representation of Pisor. Upon review, we deny the petition
to withdraw and direct counsel to prepare an advocate’s brief in accordance
with the dictates of this memorandum.
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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903(a)(1).
2 Anders v. California, 386 U.S. 738 (1967).
See also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
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On August 27, 2020, Pisor entered a negotiated guilty plea to the above
charges.3 On September 24, 2020, the trial court sentenced him, in
accordance with his plea agreement, to an aggregate sentence of 11½ to 23
months’ imprisonment. The court further ordered that the sentence was to
run concurrent to his probation violation sentence at docket number CP-10-
CR-0000664-2017 (“664-2017”). Pisor filed a timely notice of appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) statement of errors complained
of on appeal. Pisor raises the following claims for our review:
1. Whether the trial court erred when it accepted [] Pisor’s guilty
plea[,] as it was not knowingly, intelligently, and voluntarily
entered.
2. Whether the trial court abused its discretion in sentencing []
Pisor to eleven and a half to twenty-three months without
credit for time served.
Brief of Appellant, at 4.
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3 At the guilty plea hearing, counsel for the Commonwealth recited, and Pisor
acknowledged as true, the underlying factual basis for the plea as follows:
[O]n or about January [2, 2020] in Washington Township, Butler
County, Pennsylvania, [Pisor,] not being registered under the
Controlled Substance, Drug, Device, and Cosmetic Act [(“the
Act”), 35 P.S. §§ 780-101-144], nor a practitioner registered[ or]
licensed by the appropriate state board[,] did knowingly
manufacture or possess with intent to deliver crack cocaine[,] a
schedule two controlled substance[,] in violation of [s]ection
[113(a)(30)] of the Act, [an] ungraded felony. At the same time
and place[,] he conspired and agreed with Abbi Cochran to commit
the crime of possession with intent to deliver [a] controlled
substance[,] also [an] ungraded felony.
N.T. Guilty Plea Hearing, 8/27/20, at 5.
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Prior to reviewing Pisor’s claims, we must determine if counsel has
complied with the procedural requirements for withdrawal. In order to
withdraw pursuant to Anders, counsel must: (1) petition the Court for leave
to withdraw, certifying that after a thorough review of the record, counsel has
concluded the issues to be raised are wholly frivolous; (2) file a brief referring
to anything in the record that might arguably support an appeal; and (3)
furnish a copy of the brief to the appellant and advise him of his right to obtain
new counsel or file a pro se brief raising any additional points that the
appellant deems worthy of review. Commonwealth v. Hernandez, 783
A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), the Pennsylvania Supreme Court held that, in order to
withdraw under Anders, counsel must also state her reasons for concluding
her client’s appeal is frivolous.
Instantly, counsel’s petition states that she has made a conscientious
examination of the record and determined the appeal is wholly frivolous. See
Motion to Withdraw, at ¶ 7. Counsel indicates that she supplied Pisor with a
copy of the Anders brief and a letter explaining his right to proceed pro se,
or with privately-retained counsel, and to raise any other issues he believes
might have merit.4 See id. at ¶¶ 9-10. In the Anders brief, counsel sets out
two issues of arguable merit and, pursuant to the dictates of Santiago,
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4 Pisor has not filed a response to counsel’s petition to withdraw or Anders
brief.
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explains why she believes the appeal to be wholly frivolous. Thus, counsel
has substantially complied with the requirements for withdrawal.
We now turn to our independent review of the record to determine
whether Pisor’s appeal is wholly frivolous. In his first issue, Pisor asserts that
the trial court erred in accepting his plea because it was not entered
knowingly, voluntarily and intelligently. This claim is meritless.
To be valid, a guilty plea must be knowing, intelligent, and voluntary.
Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003). The court
therefore must conduct an on-the-record inquiry to determine whether the
plea is voluntarily and understandingly tendered. Commonwealth v.
Hodges, 789 A.2d 764, 765 (Pa. Super. 2002), citing Pa.R.Crim.P. 590(a).
The court must develop a record that affirmatively shows that the defendant
understands: (1) the nature of the charges to which the defendant is pleading
guilty; (2) the factual basis for the plea; (3) the right to a jury trial; (4) the
presumption of innocence; (5) the permissible ranges of potential sentences
and fines; (6) that the court is not bound by the terms of the agreement unless
it accepts it; and (7) that the Commonwealth has a right to have a jury decide
the degree of guilt if the defendant pleads guilty to murder generally.
Pa.R.Crim.P. 590, Comment; see Commonwealth v. Kelley, 136 A.3d 1007,
1013 (Pa. Super. 2016). Our law presumes that a defendant who enters a
guilty plea was aware of what he was doing and he bears the burden of proving
otherwise. Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999).
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During the course of a plea colloquy, a defendant has a duty to answer
questions truthfully and cannot later assert that he lied under oath.
Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super. 2007).
Here, Pisor appeared virtually at his guilty plea hearing, at which time
he pled guilty at the instant docket and his parole was revoked at docket
number 664-2017. The parties reached a global agreement as to both cases,
pursuant to which Pisor would serve an aggregate sentence of 11½ to 23
months’ imprisonment on the instant case, to run concurrently with the
remainder of his sentence (approximately 11 months) at docket number 664-
2017.
Prior to the plea hearing, Pisor completed a written plea colloquy, which
advised him of, inter alia the nature of the charges to which he was pleading,
the maximum penalty for each crime, the fact that he was waiving certain
constitutional rights, including the right to a jury trial, the fact that he is
presumed innocent, and the fact that the court is not bound by the terms of
his plea agreement unless it chooses to accept the agreement. See Written
Guilty Plea Colloquy, at 1-3; see also Pa.R.Crim.P. 590.
At Pisor’s guilty plea hearing, counsel for the Commonwealth set forth
the factual basis for Pisor’s plea, see supra, at n.1, as well as the agreed-
upon sentences. See N.T. Guilty Plea Hearing, 8/17/20, at 4-5. In an oral
colloquy with his counsel, Pisor affirmed: that he had reviewed the plea
documents and discussed them with counsel; that he understood the
constitutional rights he was waiving by pleading guilty; that no one had
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threatened him or promised him anything in order to coerce his guilty plea;
and that he was pleading guilty because he was, in fact, guilty. See id. at 6-
8.
In light of the foregoing, we agree with counsel that Pisor’s contention
he entered an unknowing, unintelligent, and involuntary guilty plea must be
deemed wholly frivolous.
In his second claim, Pisor alleges that the trial court abused its discretion
in sentencing him to an aggregate term of 11½ to 23 months’ incarceration
without credit for time served. Upon review, we conclude that this claim is
not wholly frivolous.
We begin by noting that, although both counsel and the trial court
characterize this claim as a challenge to the discretionary aspects of sentence
that has been waived for failure to file a post-sentence motion, “[a] claim
asserting that the trial court failed to award credit for time served implicates
the legality of the sentence.” Commonwealth v. Johnson, 967 A.2d 1001,
1003 (Pa. Super. 2009). A claim challenging the legality of a sentence is
never waived and may be the subject of inquiry by an appellate court sua
sponte. Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa. Super. 2002).
Accordingly, we may review Pisor’s claim.5
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5 Issues relating to the legality of a sentence are questions of law.
Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super. 2016). Our
standard of review over such questions is de novo and the scope of review is
plenary. Id.-6-
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The Pennsylvania Sentencing Code addresses the award of credit for
time served, in relevant part, as follows:
§ 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.
***
(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(1), (4). This statute does not specifically contemplate
credit for time served following a parole violation and revocation. Our
Supreme Court has held, however, that section 9760 mandates an offender
receive credit for all incarceration served before sentencing for which he is
being detained in custody. See Gaito v. Pa. Bd. of Probation and Parole,
412 A.2d 568 (Pa. 1980).
In Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008), this
Court, reading several key cases together, determined that, “while no single
case offers a specific, unified, time-served credit application schema,” they
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collectively provided a resolution to the questions of where time-served credits
are to be applied and by which adjudicatory body. The Court held:
[A]ll time served by a parole violator while awaiting disposition on
new charges must be credited to the original sentence if the
inmate remains in custody solely on a Board detainer. If the
inmate is incarcerated prior to disposition and has both a detainer
and has failed for any reason to satisfy bail, the credit must be
applied to the new sentence by the sentencing court. If the new
sentence is shorter than the time served, the balance can be
applied to the original sentence, but the sentencing court must
specify “time served” in the sentencing order for the new offense,
so that the Board will be able to apply the credit.
Id. at 751 (citations omitted) (emphasis added).
Here, the trial court states in its opinion that Pisor “was released on
bond in the new case,” i.e., the instant matter, and, thus, his time credit was
properly applied to his back time on the parole violation. Trial Court Opinion,
1/4/21, at 4, citing Mann, supra. However, it appears from our review of
the certified record that Pisor never posted bond and was, in fact, committed
to the Butler County Prison on January 15, 2020. See Commitment, 1/15/20
(directing Pisor be delivered to custody of the Keeper of the Butler County
Prison because he was “unable to post bail”). If Pisor was, in fact,
“incarcerated prior to disposition and had both a detainer and [] failed . . . to
satisfy bail,” Mann, 957 A.2d at 751, the trial court was required to apply
credit for time served to his new sentence. See id. See also
Commonwealth v. Gibbs, 181 A.3d 1165, 1168 (Pa. Super. 2018) (holding
trial court required to credit time served prior to disposition of new offenses
against new sentence where defendant had Board detainer and did not satisfy
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bail on new offenses). Accordingly, Pisor’s claim that the trial court erred in
not applying credit for time served to the instant case is not wholly frivolous.
We determine that, on the record before this court, the issue set forth
above is not so lacking in merit that counsel should be permitted to withdraw.
“Appellant’s Sixth Amendment right to zealous advocacy on a first appeal
forecloses this [C]ourt from simply deciding the issue on the merits on the
basis of counsel’s Anders brief, filed together with [her] petition to withdraw.”
Commonwealth v. Blauser, 166 A.3d 428, 434 (Pa. Super. 2017). We,
therefore, deny counsel’s petition to withdraw and direct counsel to file an
advocate’s brief within 30 days from the date of this decision; the
Commonwealth shall file a responsive brief within 30 days thereafter, should
it decide one is warranted.
Petition to withdraw denied. Counsel ordered to submit advocate’s brief
consistent with the dictates of this memorandum. Panel jurisdiction retained.
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