Com. v. Camero, P.

J-S38018-19 & J-S38019-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER CAMERO :
:
Appellant : No. 3065 EDA 2018
Appeal from the Judgment of Sentence Entered September 19, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004520-2017
COMMONWEALTH OF : IN THE SUPERIOR COURT
PENNSYLVANIA : OF
: PENNSYLVANIA
:
v. :
:
:
PETER JOSEPH CAMERO, JR. :
:
Appellant No. 3066 EDA 2018
Appeal from the Judgment of Sentence Entered September 19, 2018
In the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0003300-2017
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 25, 2019
In these consolidated appeals,1 Appellant, Peter Camero, appeals from
the Judgment of Sentence entered in the Delaware County Court of Common
Pleas following the revocation of his parole and probation. With these appeals,
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1 We have consolidated these matters sua sponte.
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* Retired Senior Judge assigned to the Superior Court.
J-S38018-19 & J-S38019-19
Appellant’s counsel has filed an Application to Withdraw as Counsel and an
Anders2 brief. After careful review, we affirm the Judgment of Sentence and
grant counsel’s Application to Withdraw.
We glean the following factual and procedural history relevant to this
appeal from the certified record. Appellant is a repeat offender who has
violated the terms of his probation numerous times. The cases subject to this
appeal, Docket Nos. CP-23-CR-0004520-2017 (“Docket No. 4520”) and CP-
23-CR-0003300-2017 (“Docket No. 3300”), both involve Possession of
Marijuana for Personal Use and Theft from a Motor Vehicle.3 The details are
unnecessary for the disposition of this appeal.
After violating the terms of his probation in the instant cases, as well as
the terms of his parole and probation in another case, Docket No. CP-23-CR-
0005087-2017 (“Docket No. 5087”), Appellant was arrested and incarcerated
pending a September 19, 2018 Gagnon II4 hearing.
At the Gagnon II hearing, Appellant conceded that he violated the
terms of his probation and parole. Thus, the trial court revoked Appellant’s
probation on Docket Nos. 3300 and 4520, and resentenced him to a new term
of six to twelve months’ imprisonment on each docket.
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2 Anders v. California, 386 U.S. 738 (1967).
3 35 P.S. § 780-113(a)(31) and 18 Pa.C.S. § 3934(a), respectively.
4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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For Docket No. 5087, the court revoked Appellant’s parole and
resentenced him to the balance of the sentence previously imposed, and also
revoked his probation and resentenced him to an additional term of
imprisonment. Most importantly to this appeal, the trial court credited
Appellant for time served for the charges in Docket No. 5087.
On September 26, 2018, Appellant filed a pro se Motion for
Reconsideration of Sentence and pro se Notice of Appeal of each docket.5 On
October 17, 2018, Appellant filed a counseled Notice of Appeal. Both the trial
court and Appellant complied with Pa.R.A.P. 1925.
Appellant’s counsel has filed both an Anders Brief and an Application to
Withdraw as Counsel. In response, Appellant filed a Pro Se Response. The
Anders Brief and Pro Se Response raise the same issue: “[w]hether the court
erred when it sentenced Appellant to prison without crediting him for the time
he had already served on the case.” Anders Br. at 3; see Appellant’s Pro Se
Response, filed 6/3/19.
As a preliminary matter, we address appellate counsel’s Application to
Withdraw as Counsel. “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.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.
Super. 2010) (citation omitted). In order for counsel to withdraw from an
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5Appellant’s appeal from the Judgment of Sentence at Docket No. 5087 is
pending at No. 3067 EDA 2018.
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appeal pursuant to Anders, our Supreme Court has determined that counsel
must meet the following requirements:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Appellate counsel has complied with the mandated procedure for
withdrawing as counsel. Additionally, appellate counsel confirms that he sent
Appellant a copy of the Anders Brief and Application to Withdraw as Counsel,
as well as a letter explaining to Appellant that he has the right to retain new
counsel, proceed pro se, or to raise any additional issues he may deem worthy
of merit. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super.
2005) (describing notice requirements).
Because appellate counsel has satisfied the above requirements, it
would generally be this Court’s duty to conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel and render an independent judgment as to whether the appeal is,
in fact, wholly frivolous. Anders, 386 U.S. at 744; Commonwealth v.
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Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018). However, because Appellant
filed a Pro Se Response to the Anders Brief, our independent review is limited
to the issue raised in the Anders Brief and Pro Se Response.
Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super. 2015).
Appellant contends that the trial court failed to credit him for the time
he was incarcerated awaiting his September 19, 2018 Gagnon II hearing,
i.e., from August 17, 2018 to September 19, 2018. Id.; Anders Br. at 4; Pro
Se Response. We disagree.
A challenge to the trial court’s failure to award credit for time served
prior to any type of sentencing is a challenge to the legality of a sentence.
Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). The
question of whether a trial court imposed an illegal sentence is a question of
law and, therefore, our review is de novo. Commonwealth v. Infante, 63
A.3d 358, 363 (Pa. Super. 2013).
The Pennsylvania Sentencing Code provides that a trial court shall give
a defendant credit for time spent incarcerated and states, in relevant part:
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.
42 Pa.C.S. § 9760(1).
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A defendant is not entitled to duplicate credit for time served.
Commonwealth v. Hollawell, 604 A.2d 723, 726 (Pa. Super. 1992). Thus,
a defendant may receive credit against only one sentence imposed for multiple
convictions on separate charges. Commonwealth v. Merigris, 681 A.2d
194, 195 (Pa. Super. 1996). To allow credit to be applied to multiple sentences
would create a windfall, giving a defendant a “volume discount.” Id.Here, the court credited Appellant’s period of incarceration to his
sentence at Docket No. 5087. Certificate of Imposition of Judgment of
Sentence, Docket No. 5087, dated 10/18/17; N.T. Hearing, 9/19/18, at 14-
15. Because Appellant received credit for the time he spent incarcerated to
the charges in Docket No. 5087, he is not entitled to receive credit for the
charges in Docket Nos. 3300 and 4520. Merigris, 681 A.2d at 195;
Hollawell, 604 A.2d at 726. Thus, this issue has no merit.
We, therefore, conclude that neither Appellant’s counsel nor Appellant
have identified any non-frivolous issues for us to address on appeal.
Accordingly, we affirm Appellant’s Judgment of Sentence and grant appellate
counsel’s Application to Withdraw as Counsel.
Judgment of Sentence affirmed. Appellate counsel’s Application to
Withdraw as Counsel granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/19
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