Com. v. Burns, T. ( 2021 )

J-A01031-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS BURNS, :
:
Appellant : No. 3187 EDA 2019
Appeal from the Judgment of Sentence Entered September 24, 2019
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003536-2017
CP-09-CR-0007253-2015
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS BURNS, :
:
Appellant : No. 3188 EDA 2019
Appeal from the Judgment of Sentence Entered September 24, 2019
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003536-2017
CP-09-CR-0007253-2015
BEFORE: BENDER, P.J.E., OLSON, J. and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 07, 2021
Appellant, Thomas Burns, appeals from the judgment of sentence of
17 months and 25 days’ incarceration, imposed after his terms of parole
were revoked at informations 7253-2015 and 3536-2017. After careful
review, we affirm.
*Retired Senior Judge assigned to the Superior Court.
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The trial court provided the following procedural background:
On June 6, 2016, on information 7253-2015, Appellant
pled guilty to public drunkenness,1 resisting arrest,2 and
harassment.3 On Count 2, resisting arrest, Appellant was
sentenced to twenty-four months [of probation]. Appellant’s
sentencing guidelines for Count 2 were as follows: restorative
sanctions in the mitigated range, one to nine months in the
standard range, and twelve months in the aggravated range.
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1 18 Pa.C.S. § 5505, ([summary]).
2 18 Pa.C.S. § 5104, ([second-degree misdemeanor]).
3 18 Pa.C.S. § 2709(a)(1), ([summary]).
On August 29, 2016, by agreement, Appellant was found
in violation of probation. Appellant’s probation was revoked[,]
and he was sentenced to undergo imprisonment for not less than
four months to no more than twenty-three months[,] and given
credit for time served from August 5, 2016. Appellant was to be
presumptively paroled after h[e] provided a verifiable and
acceptable address. Appellant was effectively paroled on
December 5, 2016.
On December 16, 2016, a bench warrant was issued for
Appellant for a probation violation of absconding. On April 4,
2017, the bench warrant was rescinded. Appellant was also
found in violation of parole and his parole was revoked.
Appellant was sentenced to serve nineteen months and was
presumptively paroled after serving 180 days misconduct free
and providing a verifiable and acceptable[ address].
On April 6, 2018, Appellant was granted parole to a
verifiable and acceptable address.
On March 8, 2019, th[e trial c]ourt held a Gagnon I
hearing[,] and Appellant was to be released after his intensive
outpatient treatment was verified.[1] On April 1, 2019, Appellant
was granted [released-on-own-recognizance] bail but not
1 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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released because he was unable to meet his condition of
verifying outpatient treatment.
On information 3536-2017, Appellant was charged with
escape.4 On October 13, 2017, Appellant entered into a
negotiated guilty plea. Sentencing was deferred for 30 days for
a mental health evaluation. On March 9, 2018, Appellant was
sentenced to imprisonment to no less than time served to no
more than twenty-three months. The special condition imposed
was that immediate parole would be granted when Appellant
found a verifiable and acceptable address. Appellant’s
sentencing guideline[s] were as followed: nine months in the
mitigated range, twelve to eighteen months in the standard
range, and twenty-one months in the aggravated range.
______
4 18 Pa.C.S. § 5121(a), ([third-degree felony]).
On February 12, 2019, th[e trial c]ourt issued a bench
warrant for Appellant for absconding. On March 8, 2019, th[e
c]ourt held a Gagnon I hearing[,] and Appellant was to be
released after his intensive outpatient treatment was verified.
On August 14, 2019, a violation hearing was held[,] and
Appellant was found in violation of parole on informations 7253-
2015 and 3536-2017[,] and parole was revoked. Sentencing
was deferred for 30 days[,] and Appellant remained in custody.
Notes of testimony were not requested in this appeal but from
th[e trial c]ourt’s notes, sentencing was deferred because[,] on
December 17, 2018, Appellant was charged with possession of
drug paraphernalia [at information 0425-2019] and th[e c]ourt
was waiting to see the disposition in that matter. … On
September 16, 2019, Appellant pleaded guilty [at information
0425-2019] to two counts of disorderly conduct and sentenced
to pay a fine.
On September 24, 2019, Appellant was sentenced to
undergo imprisonment and to serve his back time of 7 months
and 4 days on criminal information 7253-2015. [Appellant was
given credit for time served and the trial court directed that his
parole at that information be closed. N.T., 9/24/2019, at 11.]
Appellant was also sentenced to undergo imprisonment and
serve his back time of 10 months and 21 days on criminal
information 3536-2017[, beginning on September 24, 2019].
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Appellant could apply for parole after serving 120 days
misconduct free.
On September 30, 2019, Appellant filed a petition for
review of revocation, however, the Bucks County Office of the
Clerk of Courts only clocked in the motion to indicate the date
and time in which it was filed[,] and the motion was not ruled
upon by th[e c]ourt.
Trial Court Opinion, 3/3/2020, at 1–3 (parenthetical numbers and headings
omitted).
On October 21, 2019, Appellant pro se filed a single notice of appeal,
listing both lower court docket numbers. The Bucks County Clerk of Courts
docketed the notice of appeal to preserve the timeliness of the appeal2 and
notified Appellant on October 23, 2019, of several deficiencies, which
rendered his notice incomplete. On November 4, 2019, Appellant corrected
those deficiencies by pro se filing a second notice of appeal, again listing
both lower court docket numbers.3
2 In the parole revocation context, the 30-day appeal period commences on
the date the sentence is pronounced in open court. See Commonwealth v.
Duffy, 143 A.3d 940, 944 (Pa. Super. 2016). Although Appellant timely
filed a post-sentence motion on September 30, 2019, which the trial court
did not rule upon, his notice of appeal was still due by October 24, 2019.
See Pa.R.Crim.P. 708(E) (“The filing of a motion to modify sentence will not
toll the 30-day appeal period.”).
3 In accordance with our Court’s practice, this Court issued two orders on
December 17, 2019, asking Appellant to show cause as to why his notices of
appeal should not be quashed pursuant to Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), and Pa.R.A.P. 341(a). Appellant pro se filed several
responses arguing the merits of his claim on appeal, as well as a petition for
consolidation of the appeals. On January 3, 2020, this Court referred the
Walker issue to the merits panel. On January 17, 2020, this Court granted
(Footnote Continued Next Page)
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Thereafter, this Court remanded the matter to the trial court for 60
days to determine whether the Bucks County Public Defender’s Office still
represented Appellant and for the trial court to take further action, as
required, to protect Appellant’s right to appeal. In the meantime, Appellant
was released on parole. The trial court held a hearing on January 28, 2020,
which Appellant failed to attend. On January 29, 2020, the trial court issued
an order, directing the public defender’s office to continue representing
Appellant and to file a concise statement pursuant to Pa.R.A.P. 1925(b).
Appellant timely filed a counseled Rule 1925(b) statement, and the trial
court filed a Rule 1925(a) opinion in response.
(Footnote Continued) _______________________
Appellant’s request for consolidation, without prejudice for the merits panel
to quash. The fact that Appellant pro se filed a notice of appeal bearing a
caption with both trial court docket numbers does not necessarily in and of
itself require quashal. See Commonwealth v. Johnson, 236 A.3d 1141,
1148 (Pa. Super. 2020) (en banc). However, the filing of a singular notice of
appeal, when separate notices of appeal are required at each trial court
docket number, may implicate non-compliance with Walker.
Instantly, Appellant filed a single timely, but deficient, notice of
appeal, which appears in the record for information 7253-2015, and a
second, corrected notice of appeal, which appears in the record for 3536-
2017. This Court has held that “fraud or breakdown in the trial court’s
processes” may excuse the otherwise untimely filing of an appeal and a
party’s failure to comply with Walker. Commonwealth v. Khalil, 806 A.2d
415, 420 (Pa. Super. 2002); see also Commonwealth v. Larkin, 235 A.3d
350, 354 (Pa. Super. 2020) (en banc). Here, Appellant was never advised of
his right to appeal or his need to file two notices of appeal. See generally
N.T., 9/24/2019. In fact, we observe that Appellant was acting pro se in the
early stages of his appeal despite the public defender’s office still being
counsel of record, as discussed infra. Thus, we conclude a breakdown
occurred such that we may overlook the defective nature of Appellant’s
notices of appeal and we shall proceed to address the merits of Appellant’s
appeal.
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On appeal, Appellant presents a single issue for our review: “Did the
trial court abuse its discretion by imposing an illegal sentence by sentencing
Appellant, upon revocation, to serve his back time on the two underlying
informations consecutive to each other. Originally the parole dockets were
served concurrently.” Appellant’s Brief at 4 (unnecessary capitalization
omitted). Although Appellant frames his question as a challenge to the
discretionary aspects of his sentence and lists the corresponding standard of
review in his brief, he is really challenging the legality of his sentence.
Following parole revocation and recommitment, the proper issue
on appeal is whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to recommit the
defendant to confinement. Accordingly, an appeal of a parole
revocation is not an appeal of the discretionary aspects of
sentence.
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008)
(citations omitted). “An assertion that the trial court erroneously imposed
an illegal sentence is a question of law and, as such, our scope of review is
plenary and our standard of review is de novo.” Commonwealth v.
Williams, 980 A.2d 667, 672 (Pa. Super. 2009).
Here, Appellant does not challenge the decision to revoke, but rather
the sentences imposed following the parole revocations. In support of his
claim, Appellant cites a single case: Commonwealth v. Sharpe, 665 A.2d
1194 (Pa. Super. 1995). Relying on Sharpe, Appellant makes the following
argument:
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That Appellant’s initial sentences were to be served
“concurrently” precluded the [c]ourt upon revocation of parole,
to require that the sentences for the same offenses be served
“consecutively” not only [sic] was the modification untimely …
but it smacks of and implicates violations of the Double Jeopardy
Clause[s] of both [the] United States and Pennsylvania
Constitutions by enlarging the punishment imposed.
Appellant’s Brief at 8–9 (ellipsis in original).4
Appellant’s argument is misleading. We observe that in Sharpe, the
defendant was originally sentenced at two informations to identical
concurrent sentences of incarceration followed by probation on the same day
as part of the same guilty plea hearing. Sharpe, 665 A.2d at 1195. Thus,
this Court concluded that the trial “court imposed an illegal sentence when it
directed that the punishment phase for each crime committed be served
consecutively, instead of merely revoking parole and ordering the balance of
the sentences be served ‘concurrently.’” Id. at 1197. Contrarily, Appellant
was originally sentenced at information 7253-2015 on June 6, 2016. His
probation was revoked at that information on August 29, 2016, and his
parole was revoked for the first time on April 4, 2017. Subsequently, on
March 9, 2018, Appellant received his original sentence at information 3536-
2017. Based on the record before us, at no point was the sentence imposed
4 Appellant also argues that the trial court erred by relying on 42 Pa.C.S.
§ 9771, which governs probation revocations, in defending its sentence in its
Rule 1925(a) opinion. See Appellant’s Brief at 8. Although we agree that
the trial court erred in its analysis, we are not bound by the rationale of the
trial court and may affirm on any basis. See Commonwealth v. Doty, 48
A.3d 451, 456 (Pa. Super. 2012).
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at information 7253-2015 set to run concurrently with the sentence imposed
at information 3536-2017. Instead, what Appellant attempts to frame as a
concurrent-turned-consecutive illegal sentence is really an attempt to
receive double credit.
This Court has held that a defendant is not entitled to “receive
credit against more than one sentence for the same time
served.” Commonwealth v. Merigris, … 681 A.2d 194, 195
([Pa. Super.] 1996). We have acknowledged that such “double
credit” is prohibited both by the statutory language of [42
Pa.C.S. §] 9760 and by the principle that a defendant be given
credit only for “time spent in custody ... for a particular
offense.” Commonwealth v. Hollawell, 604 A.2d … 723, 725
(Pa. Super. 1992).
Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014)
(brackets in original omitted).
At the hearing on September 24, 2019, the trial court sentenced
Appellant to serve his back time on both informations. He received credit for
time served on information 7253-2015, and that parole was closed.
Appellant was not entitled to receive double credit, so his back time for
information 3536-2017 was set to begin on September 24, 2019. Thus, the
trial court did not impose an illegal sentence upon revocation of Appellant’s
paroles by refusing to give him double credit. Based on the foregoing, we
affirm Appellant’s judgments of sentence.
Judgments of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2021
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