Com. v. Payne, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DWAYNE PAYNE :
:
Appellant : No. 1955 EDA 2020
Appeal from the Judgment of Sentence Entered February 27, 2019,
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0003557-2009.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 8, 2021
Dwayne Payne appeals from the judgment of sentence imposed
following revocation of his probation. Additionally, Payne’s counsel filed a
petition to withdraw from representation and an accompanying brief pursuant
to Anders v. California, 386 U.S. 738, 744 (1967). Upon review, we grant
counsel’s petition, and affirm the judgment of sentence.
This case arises from the following facts. On September 21, 2009,
Payne pled guilty to robbery1 and was sentenced to 1 year less a day to 2
years less a day of incarceration. Payne also pled guilty to fleeing or
attempting to elude police2 and was sentenced separately for this conviction
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3701.
2 75 Pa.C.S.A. § 3733.
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to 3 years of probation, consecutive to his sentence of incarceration for
robbery.
As of May 21, 2011, Payne completed his sentence of incarceration.
Payne then started his probation sentence for the fleeing and eluding
conviction. Sometime during his probation, Payne left Pennsylvania.
On November 15, 2013, a bench warrant was issued for Payne alleging
that he violated probation for: 1) a shoplifting conviction in Georgia; 2) failure
to notify timely his probation officer of that arrest; and 3) leaving Pennsylvania
without permission. However, because Payne was still in Georgia and his
warrant was not extraditable, he could not be apprehended, and the court
could not have a hearing on his violations.
Payne eventually returned to Pennsylvania. On January 4, 2019, Payne
was arrested for the outstanding, 2013, probation violations.
On February 27, 2019, the VOP court conducted a probation revocation
hearing. Payne stipulated to the violations. As a result, the court found that
Payne violated his sentence of probation for the fleeing and eluding conviction,
revoked that sentence, and resentenced him to 2 ½ to 5 years of
incarceration. The court made this sentence effective as of January 4, 2019,
giving Payne credit for time served from that date. Payne filed a pro se motion
for reconsideration of sentence, which the court denied. No appeal was filed.
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Following an amended Post-Conviction Relief Act3 (“PCRA”) petition and
reinstatement of Payne’s direct appellate rights by order dated September 15,
2020, Payne filed this timely appeal. Counsel filed a petition to withdraw from
representation and an Anders brief with this Court. Payne did not retain
independent counsel or file a pro se response to the Anders brief.
Before we may consider the issues raised in the Anders brief, we must
first consider counsel’s petition to withdraw from representation. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding
that, when presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw). Pursuant to Anders, when counsel believes an appeal is frivolous
and wishes to withdraw from representation, counsel must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court's attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
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3 42 Pa.C.S.A. §§ 9541-9546.
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(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, counsel has complied with each of the requirements of Anders.
Counsel indicated that he reviewed the record and concluded that Payne’s
appeal is frivolous. Further, the Anders brief substantially comports with the
requirements set forth by our Supreme Court in Santiago. Finally, the record
included a copy of the letter that counsel sent to Payne stating counsel’s
intention to seek permission to withdraw and advising Payne of his right to
proceed pro se or retain new counsel and file additional claims. Accordingly,
as counsel has complied with the procedural requirements for withdrawing
from representation, we will conduct an independent review to determine
whether Payne’s appeal is wholly frivolous.
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In the Anders brief, counsel sets forth one issue that Payne wishes to
raise. Payne claims that the trial court erred in its calculation of credit time
for his sentence upon probation revocation. Specifically, Payne argues that
he should have been given credit for time served under his original sentence
of incarceration. Anders Brief at 8-9.
A challenge to the trial court's failure to award credit for time served
prior to sentencing involves the legality of a sentence. Commonwealth v.
Johnson, 967 A.2d 1001 (Pa. Super. 2009). Issues regarding the legality of
a sentence are questions of law; our standard of review is de novo and our
scope of review is plenary. Id.The VOP court aptly observed, “[c]redit shall include credit for time
spent in custody prior to trial, during trial, pending sentence, and pending
resolution of an appeal.” 42 Pa.C.S.A. § 9760(1). A defendant is entitled to
time served for all time the defendant has spent in custody prior to
resentencing. Johnson, 967 A.2d at 1005.
Additionally, we note that “upon revocation [of probation] the
sentencing alternatives available to the court shall be the same as were
available at the time of initial sentencing, due consideration being given to the
time spent serving the order of probation.” 42 Pa.C.S.A. § 9771(b). Time
served, when added to the revocation sentence, may not exceed the
maximum sentence for a particular offense. With these principles in mind, we
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find that the trial court did not err in calculating Payne’s time served and
imposing its sentence.
Here, the VOP court imposed Payne’s sentence as of the date he was
arrested and incarcerated on the outstanding warrant for his probation
violations, January 4, 2019. Payne therefore received credit for time served
prior to his resentencing consistent with 42 Pa.C.S.A. § 9771(b).
Furthermore, although Payne previously served time in jail, that time was not
attributable to his probation sentence for the fleeing and eluding conviction.
Instead, it only applied to the separate sentence for Payne’s robbery
conviction. Consequently, the VOP court correctly refused to apply that time
against Payne’s new sentence upon revocation of his probation.
Additionally, we note that the maximum sentence for fleeing and
eluding is 7 years. The trial court imposed a sentence of incarceration of 2 ½
to 5 years, which is less than the maximum allowed.
Thus, because Payne has already received appropriate credit for time
served and his new sentence upon revocation of his probation did not exceed
the maximum, we conclude that the trial court did not err when it resentenced
Payne upon revocation of his probation. Payne’s sole issue is frivolous.
Furthermore, as required by Anders, we have independently reviewed
the record to determine whether there are any non-frivolous issues present in
this case. Our review of the record discloses no other non-frivolous issues
that Payne could raise that counsel overlooked. See Dempster, supra.-6-
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Having concluded that there are no meritorious issues, we grant
counsel’s petition to withdraw, and affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2021
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