Com. v. Taylor, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BREE TAYLOR :
:
Appellant : No. 348 EDA 2021
Appeal from the PCRA Order Entered January 14, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0005266-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 8, 2021
Bree Taylor appeals from the order, entered in the Court of Common
Pleas of Bucks County, denying her “Amended Petition for Relief Pursuant to
the Post-Conviction Relief Act Application for Time Credit” (hereinafter
Amended Petition). The court correctly interpreted the amended petition as
one filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546. See, e.g., Commonwealth v. Saunders, 226 A.3d 1019 (Pa.
Super. 2020) (recognizing that claim that trial court failed to award credit for
time served pursuant to 42 Pa.C.S.A. § 9760 cognizable under PCRA); see
also Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (holding
that claim that trial court failed to award credit for time spent in custody prior
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* Retired Senior Judge assigned to the Superior Court.
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to sentencing cognizable under PCRA). For the reasons set forth below, we
affirm the PCRA court’s order denying Taylor’s petition.
On June 25, 2018, Taylor was arrested while incarcerated in the Bucks
County Correctional Facility on unrelated charges.1 The instant charges2 stem
from Taylor’s involvement in the distribution of methamphetamine to other
inmates while serving her sentence on those charges. Bail was set for the
instant case but not posted. On April 2, 2019, Taylor pled guilty to five counts
of controlled substance or contraband by confined persons prohibited, two
counts of conspiracy, and one count each of possession of a controlled
substance or contraband by an inmate, and possession of a controlled
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1 Taylor served sentences under dockets CP-39-CR-0001048-2017, CP-09-CR-
000625-2017, CP-09-CR-0007518-2017, and CP-09-CR-000424-2018.
Taylor’s charges included: possession of drug paraphernalia, driving while
operating privilege is suspended or revoked, possession of a controlled
substance, possession with intent to deliver a controlled substance,
possession of drug paraphernalia, possession of a controlled substance,
forgery, access device fraud, theft by unlawful taking, and receiving stolen
property.
2 In this matter, the Commonwealth originally charged Taylor with:ten counts
of controlled substance or contraband by confined persons prohibited, see 18
Pa.C.S.A. § 5123(a); one count of possession of a controlled substance or
contraband by an inmate, see 18 Pa.C.S.A. 5123(a.2); one count of
possession of a controlled substance, see 35 P.S. § 780-113(a)(16); two
counts of conspiracy, see 18 Pa.C.S.A. § 903; and, one count of solicitation
of contraband or a controlled substance, see 18 Pa.C.S.A § 902. See
Information, 9/18/18, at 1-5.
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substance.3 That same day, the trial court sentenced Taylor to a period of
four-and-one-half to nine years’ imprisonment, with the court ordering that
this sentence be served concurrently with her unrelated charges.4 No direct
appeal was filed, causing Taylor’s judgment of sentence to become final on
May 2, 2019. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3).
On March 11, 2020, Taylor filed a timely pro se PCRA petition requesting
time to be credited towards her sentence for the period of imprisonment while
she was in custody prior to sentencing. The court appointed Patrick J.
McMenamin, Jr., Esquire, who subsequently filed an amended petition on
August 7, 2020. Following an evidentiary hearing on November 5, 2020,
Taylor submitted a memorandum of law in support of her claims, and the
Commonwealth filed a response. On January 14, 2021, the PCRA court denied
Taylor’s amended petition, and on February 3, 2021, Taylor filed a notice of
appeal. Both Taylor and the PCRA court complied with Pa.R.A.P. 1925.
On appeal, Taylor argues that her trial counsel was ineffective for failing
to request credit for time served for the period of time between her arrest and
sentencing. Taylor argues that under subsection 9760(1), she is entitled to
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3 N.T. Guilty Plea Hearing, 4/2/19, at 1, 22-24. The PCRA hearing transcript
indicates that charges 6-10 were withdrawn, however, the written guilty plea
notes that these charges were nolle prossed. N.T. Guilty Plea Hearing, 4/2/19,
at 18; Written Guilty Plea, 4/2/19.
4 N.T. Guilty Plea Hearing, 4/2/19, at 20-23.
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credit for time served for the days she spent incarcerated prior to the
imposition of sentence for the charges at issue in this case. Taylor argues
that denying her credit renders her sentence illegal under section 9760. See
Appellant’s Brief, at 4-5. We disagree.
The standard of review for the denial of a PCRA petition is well settled:
“On appeal from the denial of PCRA relief, our standard and scope of review
is limited to determining whether the PCRA court’s findings are supported by
the record and without legal error.” Commonwealth v. Medina, 92 A.3d
1210, 1214 (Pa. Super. 2014). This Court is limited to the findings of the
PCRA court, and the evidence of record, and must view these in a light most
favorable to the Commonwealth as the prevailing party. Id. The PCRA court’s
credibility determinations are binding on this Court when supported by the
record; however, with regard to the PCRA court’s legal conclusions, our
standard of review is de novo. Commonwealth v. Spotz, 18 A.3d 244, 259
(Pa. Super. 2011).
In order to succeed and be granted relief on a PCRA claim, Taylor must
prove, by a preponderance of the evidence, that her sentence resulted from
one of the circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). Taylor contends
that her counsel was ineffective for failing to request credit for time served
from her date of arrest to her sentencing, entitling her to relief under section
§ 9543(a)(2)(ii). Because Taylor’s claim presents a question of law, we must
apply a de novo standard of review. Spotz, supra.
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For an ineffective assistance of counsel claim, the court begins with the
presumption that counsel is effective. Commonwealth v. Cousar, 154 A.3d
287, 296 (Pa. 2017). “In order to obtain relief under the PCRA premised upon
a claim that counsel was ineffective, a petitioner must establish beyond a
preponderance of the evidence that counsel’s ineffectiveness ‘so undermined
the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.’” Commonwealth v. Michaud, 70 A.3d
862, 867 (Pa. Super. 2013) (quoting Commonwealth v. Payne, 794 A.2d
902, 905 (Pa. Super. 2002)); see also 42 Pa.C.S.A. § 9543(a)(2)(ii).
Specifically, in order to be successful on an ineffectiveness claim, the appellant
must prove: (1) that the underlying claim has arguable merit, (2) that
counsel’s conduct was without a reasonable basis designed to effectuate the
appellant’s interest, and (3) that counsel’s ineffectiveness prejudiced the
appellant. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003).
When evaluating an ineffectiveness claim, the court need not analyze the
elements above in order; rather, “if a claim fails under any necessary element
of the ineffectiveness test, the court may proceed to that element first.”
Commonwealth v. Brown, 196 A.3d 130, 151 (Pa. 2018). Likewise,
“[c]ounsel will not be deemed ineffective for failing to raise a meritless claim.”
Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).
Section 9760 of the Crimes Code governs credit for time served, and
states, in relevant part:
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(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.
* * *
(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) (emphasis added).
The purpose behind section 9760 is to allow defendants “credit for time
spent in custody before being sentenced for a given offense.”
Commonwealth v. Merigris, 681 A.2d 194, 194 (Pa. Super. 1996).
However, the case law has firmly established that courts should prevent
petitioners from receiving a “windfall on sentencing for a completely unrelated
crime.” Commonwealth v. Hollawell, 604 A.2d 723, 726 (Pa. Super. 1992).
Previous decisions have been clear and consistent with their intention to avoid
“deal[ing] in volume discounts.” Id. “Pursuant to 42 Pa.C.S.[A.] § 9760(4),
credit is to be awarded if, on the date of the defendant’s arrest on charges for
which [s]he is being sentenced, [s]he was already incarcerated for unrelated
charges for which [s]he was not given credit on any other sentence.”
Commonwealth v. Miller, 655 A.2d 1000, 1003 (Pa. Super. 1995)
(emphasis added); see also Commonwealth v. Clark, 885 A.2d 1030, 1032
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(Pa. Super. 2005).5 Subsection 9760(4) allows for time from separate charges
to be credited, but only if the time has not already been “credited against
another sentence.” Id., at § 9760(4).
Here, we find that the PCRA court’s analysis that Taylor was not entitled
to her requested relief is supported by the record and we discern no error of
law. See Medina, supra; see also PCRA Court Opinion, 3/9/21, at 6. We
agree with the PCRA court and conclude that the credit Taylor seeks would
result in a case of double counting and, therefore, the PCRA court properly
denied Taylor’s petition. See Hollawell, supra. The record shows that
during sentencing, the parties and the court intended and agreed to have
Taylor’s new sentence run concurrently with her previous sentences,
beginning on April 2, 2019, and not before.6 The time at issue—the
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5 In Clark, this Court rejected the Appellant’s argument that his time was
misapplied when it was credited to his parole sentence rather than the
sentence for which he was incarcerated. This Court reasoned that the statute
did not “compel the credit he [sought]” because the time had applied to the
parole sentence and, therefore, the time had already been credited. Id. at
1032.
6 The sentencing transcript reflects Taylor’s and the Commonwealth’s mutual
intention and understanding:
The court: So[,] you understand this sentence will run
consecutive to your back time?
[Defense Counsel]: Your Honor, the negotiation that we’re asking
for is that it will begin today.
The court: Is that correct?
(Footnote Continued Next Page)
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[Commonwealth Attorney]: That’s correct, Your Honor.
[Defense Counsel]: It will be effectively consecutive to time
that she’s been in custody up until today and then
concurrent—
The court: I know [t]hat—
[Defense Counsel]: I’m just saying that more for her benefit
than for yours, Your Honor.
The court: Okay. That’s also a benefit because legally they’ll
follow that[,] but the state’s position is that it has to be
consecutive.
[Defense Counsel]: Yes, ma’am.
* * *
The court: . . . By the way, I do find that the plea is voluntarily,
intelligently[,] and knowingly entered and [that Taylor]
understands the consequences of pleading guilty. It’s effective
today and concurrent with the sentence she’s now serving.
N.T. Guilty Plea Hearing, 4/2/19, at 20-21, 23-24 (emphasis added). As
indicated, the parties intended and agreed to credit Taylor’s time served
before sentencing to the previous charges on the prior dockets. Id. Because
Taylor’s PCRA petition failed to allege that trial counsel violated a
constitutional duty to consult with her concerning her right to serve the
challenged period concurrently to the prior dockets, she has failed to preserve
this claim before the PCRA court. See Commonwealth v. Santiago, 980
A.2d 659, 666 n.6 (Pa. Super. 2009) (issues of constitutional dimension are
waived if not raised in trial court; new and different theories of relief may not
be successfully advanced for first time on appeal); see also Pa.R.A.P. 302.
Additionally, Taylor’s statement of errors complained of on this appeal did not
fairly suggest any claim that trial counsel was ineffective for not consulting
with her concerning her right to serve concurrent sentences. See Rule
1925(b) Statement, 2/24/21. Accordingly, Taylor has also waived this issue
under Pa.R.A.P. 1925(b)(4)(vii). See Pa.R.A.P. 1925(b)(4)(vii) (stating that
“[i]ssues not included in the Statement . . . are waived”); see also
Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016).
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period between Taylor’s arrest and sentencing—has already been credited
towards Taylor’s original sentences at dockets CP-09-CR-0007518-2017 and
CP-09-CR-000424-2018, which sentences both fully encompass the relevant
time period. Indeed, Taylor never stopped receiving credit for the time she
was incarcerated on those original dockets. Therefore, Taylor’s time served
cannot be credited in the second instance on a set of unrelated charges, and
in contravention of the start date of her knowing, intelligent, and voluntary
plea. See Hollawell, supra; see also Miller, supra. Consequently, Taylor’s
underlying claim is meritless.
Taylor further argues that not allowing this time to count for both sets
of charges would “be to accept that concurrent sentences are prohibited.”7
Brief of Appellant, at 11. This argument misinterprets the statute by assuming
that concurrent and consecutive sentences are treated distinctly under section
9760. The statutory language does not address the type of sentence the
defendant receives with specificity; rather, it distinguishes if the time has been
credited to any other sentence, and whether or not the sentences are related.
See 42 Pa.C.S.A. § 9760.
Because Taylor’s underlying claim is meritless, she has failed to satisfy
the elements for an ineffective assistance of counsel claim. See Jones,
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7 We have already noted that Taylor waived her claim that trial counsel
violated a constitutional duty to consult with her concerning her right to credit
the at-issue time period toward both sentences via concurrent sentencing.
See supra, at n.6. In fact, we are satisfied that Taylor agreed to a specific
start date for her instant sentence when entering her plea, and the court found
Taylor’s plea to be knowingly, intelligently, and voluntarily entered. Id.
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supra; see also Allen, supra. Accordingly, the PCRA court did not err in
denying Taylor PCRA relief. See Medina, supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2021
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