Com. v. Camero, P.

J-S38020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 3067 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-0005087-2017
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 24, 2019
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 this appeal, Appellant’s counsel
has filed an Application to Withdraw as Counsel and an Anders1 brief. After
careful review, we deny counsel’s Application to Withdraw and remand for
further proceedings pursuant to Pa.R.A.P. 1925(c)(4).
We glean the following factual and procedural history from the certified
record. On October 18, 2017, Appellant pleaded guilty to one count each of
Possession of Marijuana for Personal Use and Theft from a Motor Vehicle 2 for
breaking into a vehicle and possessing a sandwich bag containing marijuana.
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1 Anders v. California, 386 U.S. 738 (1967).
2 35 P.S. § 780-113(a)(31) and 18 Pa.C.S. § 3934(a), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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The court sentenced Appellant to a term of time-served to twelve months’
incarceration, followed by to one year of probation; the court then granted
him immediate parole.
On August 17, 2018, after violating the terms of his parole and
probation, Appellant was arrested and incarcerated pending a September 19,
2018 Gagnon II3 hearing. At the Gagnon II hearing, Appellant conceded
that he violated the terms of his parole and probation. Thus, the trial court
(“VOP court”) revoked Appellant’s parole and incarcerated him to the balance
of the sentence previously imposed, one hundred seventy-four days, and
revoked his probation and incarcerated him to a consecutive sentence of one
to two years’ imprisonment. The VOP court granted Appellant one hundred
ninety-one days’ credit for time served. Importantly, this credit included his
time served from August 17, 2018 to September 19, 2018.
On September 26, 2018, Appellant filed a pro se Motion for
Reconsideration of Sentence and pro se Notice of Appeal. On October 17,
2018, Appellant filed a counseled Notice of Appeal. Both the VOP 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
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3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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he had already served on the case.” Anders Br. at 3; 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
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
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of merit. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super.
2005) (describing notice requirements). Accordingly, counsel has satisfied the
technical requirements of Anders.
Because appellate counsel has satisfied the above requirements, we will
address the substantive issue raised in the Anders Brief and Pro Se Response.
Appellant contends that the trial court failed to credit him for the thirty-three
days 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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Appellant contends that the court failed to give him credit for time
served, from August 17, 2018 to September 19, 2018. Our review of the
record, however, shows that the court granted Appellant one hundred ninety-
one days’ credit for time served, including the thirty-three days served from
August 17, 2018 to September 19, 2018. Certificate of Imposition of Judgment
of Sentence, Docket No. CP-23-CR-0005087-2017, dated 10/18/17; N.T.
Hearing, 9/19/18, at 14-15. Because Appellant received credit for the time he
spent incarcerated from August 17, 2018, to September 19, 2018, this issue
has no merit.
However, our independent review reveals that Appellant’s resentence
may be illegal. Where, as in the instant case, the court revokes a defendant’s
parole and probation, the court has the same sentencing options available that
existed at the time of the original sentencing. Commonwealth v. Ware, 737
A.2d 251, 254 (Pa. Super. 1999). Here, it appears that the terms of
Appellant’s resentence exceed the statutory maximum sentence available at
the time of the original sentencing. See 18 Pa.C.S. § 1104(2) (stating the
maximum sentence for Theft of Motor Vehicle); 35 P.S. § 780-113(g) (stating
maximum sentence for Possession of Marijuana for Personal use). Accordingly,
this issue has arguable merit.
Because our independent review of this appeal reveals the existence of
an issue of arguable merit, we deny counsel’s request to withdraw and we
remand this case to the VOP court for counsel to address the legality of
Appellant’s sentence in a supplemental Pa.R.A.P. 1925(b) Statement within
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30 days. The VOP court shall file a supplemental Rule 1925(a) opinion within
45 days from the filing of the supplemental Pa.R.A.P. 1925(b) Statement.
Case remanded. Application to Withdraw denied. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/19
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