Com. v. Loduca, J.

J-S21045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH LODUCA :
:
Appellant : No. 1552 MDA 2021
Appeal from the Order Entered November 15, 2021
In the Court of Common Pleas of Snyder County Criminal Division at
No(s): CP-55-CR-0000308-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JULY 26, 2022
Joseph Loduca (Loduca)1 appeals from the November 15, 2021 order of
the Court of Common Pleas of Snyder County (trial court) denying his petition
for time credit. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 After Loduca filed his appeal, this Court remanded the matter to the trial
court to determine his eligibility for the appointment of counsel for his first
Post-Conviction Relief Act (PCRA) petition. See Order, 12/22/21 (citing
Pa.R.Crim.P. 904(C)); 42 Pa.C.S. §§ 9541 et seq. The trial court determined
that he was indigent and appointed counsel without a hearing. Loduca filed
several letters and notices with this Court indicating his intention to proceed
pro se and appointed counsel moved to withdraw as a result. Following a
second remand from this Court, the trial court conducted a hearing on March
7, 2022, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),
and determined that Loduca had knowingly and voluntarily elected to proceed
pro se.
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Only a procedural history of the case is germane to this appeal. In
January 2020, Loduca entered a counseled no-contest plea to simple assault
and terroristic threats. 18 Pa.C.S. §§ 2701(a)(3), 2706(a)(1). On January
22, 2020, he was sentenced to 199 days to two years less one day of
incarceration, with credit for time served on the count of terroristic threats,
and one year of concurrent probation on the count of simple assault. He was
immediately paroled and did not appeal.
In July 2020, the trial court issued a bench warrant for Loduca’s arrest
on a motion of his probation officer. The officer alleged that Loduca had
moved away from his approved address, failed to keep in contact or report his
new address, and had been arrested on new criminal charges in Columbia
County. Prior to his revocation hearing, Loduca filed a pro se motion to vacate
his sentence. He alleged that he had negotiated a sentence of time served to
23 months’ imprisonment, but a period of probation was imposed at
sentencing without his agreement. He asked the trial court to vacate the
sentence entirely and allow him to proceed to trial or vacate the period of
probation. The trial court denied the motion as “untimely.” See Order,
8/14/20.
On September 11, 2020, Loduca proceeded to a revocation hearing
while represented by counsel. Loduca stipulated to the violation and
negotiated a revocation sentence of one-to-two years’ imprisonment for the
count of simple assault to “run concurrently with the parole sentence” for
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terroristic threats. Order, 9/11/20. All credit for time served was applied to
the count of terroristic threats.
Loduca filed another motion to vacate his January 22, 2020 sentence in
October 2020, followed by a motion to vacate his revocation sentence on the
basis that his period of probation had expired at the time of his violation. See
Motion for Sentence Modification, 10/30/20. He then filed a notice of appeal
on December 7, 2020, purporting to appeal from the January 22, 2020
judgment of sentence. This Court ultimately quashed the appeal as untimely
pursuant to Pa. R.A.P. 903(a). See Commonwealth v. Loduca, 8 MDA 2021
(Pa. Super. Feb. 23, 2021) (per curiam).2
Loduca filed the instant petition to vacate the state sentence on
September 1, 2021. He alleged that because his sentences for simple assault
and terroristic threats were imposed concurrently at his initial sentencing
hearing, the 199 days of time credit that applied to the terroristic threats
charge should also have been applied to the probationary sentence for simple
assault. Crediting that 199 days to his one year of probation, he concluded
that his probation had ended on July 5, 2020, prior to the initiation of the
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2 Loduca filed two notices of appeal from the January sentence in the same
time frame and both were quashed as untimely. See Commonwealth v.
Loduca, 129 MDA 2021 (Pa. Super. Feb. 23, 2021) (per curiam).
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revocation proceedings. Accordingly, he requested that his state sentence be
vacated and he be discharged.3
The Commonwealth filed an answer to the petition and the trial court
held a hearing on November 15, 2021.4 After hearing oral argument from the
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3 “[A] challenge to the trial court’s failure to award credit for time spent in
custody prior to sentencing involves the legality of the sentence and is
cognizable under the [Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq.].”
Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007); 42 Pa.C.S.
§ 9542. Further, a trial court must construe any motion filed after a
defendant’s judgment of sentence becomes final as a petition filed pursuant
to the PCRA. Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.
2011). When a defendant is resentenced following a violation of probation,
the date of the resentencing is the controlling finality date for any PCRA claims
related to the revocation proceedings. Commonwealth v. Williams, 215
A.3d 1019, 1023 (Pa. Super. 2019). Loduca was resentenced on September
11, 2020, so the instant petition filed on September 1, 2021, was a timely
first petition pursuant to the PCRA and Loduca had a rule-based right to
counsel. See Pa.R.Crim.P. 904(C). Because the trial court conducted a
Grazier hearing following this Court’s order to ensure that Loduca had
knowingly and voluntarily waived his right to counsel and elected to proceed
pro se, further remand is unnecessary. See supra note 1.
4 Prior to the hearing, Loduca filed a petition to withdraw his initial plea and
raised myriad claims related to alleged discovery violations, Brady v.
Maryland, 373 U.S. 83 (1963), and ineffective assistance of his plea counsel.
He concluded the petition with “[i]t is noted the petition to withdraw is a new
separate action from the Nov. 15th hearing.” Petition to Withdraw, 10/25/21,
at unpaginated 4 (extraneous capitalization omitted). Loduca did not raise
these issues at the hearing and they were not addressed by the trial court.
Additionally, in his brief on appeal he raises his Brady claim, a claim of
selective prosecution, and several claims that the trial court and plea counsel
lied or misled him during the revocation proceedings. These issues were not
all raised in his petition to vacate state sentence, at the hearing on the petition
or his concise statement pursuant to Pa. R.A.P. 1925(b), and the
Commonwealth argues that they have been waived. See Commonwealth’s
Brief at 2-3. We agree and decline to address them further. See Pa. R.A.P.
302(a); Pa. R.A.P. 1925(b)(4)(vii).
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parties, the trial court denied the petition. Loduca filed a timely notice of
appeal and concise statement of issues complained of on appeal and the trial
court has not provided an opinion pursuant to Pa. R.A.P. 1925(a).
Loduca contends that his revocation sentence is illegal because he was
not granted time credit on his original sentence of probation even though it
was imposed concurrently to his sentence of incarceration. He argues with
proper time credit, his period of probation expired before the violation report
was filed and the trial court lacked the authority to revoke his probation and
resentence him. He further argues that, combined with the 199 days of time
credit, his one-to-two-year sentence exceeds the statutory maximum
sentence for simple assault. He also contends that the counts of terroristic
threats and simple assault should have merged for sentencing purposes.
Finally, he argues that his sentence is illegal under Commonwealth v.
Simmons, 262 A.3d 512 (Pa. Super. 2021), because the trial court lacked the
authority to sentence him to concurrent periods of county parole and
probation.5 No relief is due.
Loduca’s first three claims are all based on his argument that he is
entitled to 199 days of time credit for his initial probationary sentence, and
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5 The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error. Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa. Super. 2019).
Whether a sentence is illegal is a question of law and our scope of review is
plenary. Commonwealth v. Maxwell, 932 A.2d 941, 942 (Pa. Super.2007).
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subsequent sentence of incarceration, on the count of simple assault. Section
9760 of the Sentencing Code states:
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); see also Commonwealth v. Infante, 63 A.3d 358,
367 (Pa. Super. 2013) (“[A] defendant shall be given credit for any days spent
in custody prior to the imposition of sentence, but only if such commitment is
on the offense for which sentence is imposed.” (citation omitted)). However,
it is well-established that defendants are not entitled to duplicative time credit
under multiple sentences. See Commonwealth v. Davis, 852 A.2d 392, 400
(Pa. Super. 2004).
Additionally, following a revocation of probation, “the sentencing
alternatives available to the court shall be the same as the alternatives
available at the time of initial sentencing,” and “the trial court is limited only
by the maximum sentence that it could have imposed originally at the time of
the probationary sentence.” Infante, supra, at 365 (internal quotations and
citations omitted). A defendant is not automatically granted credit for time
served following revocation of probation “unless the court imposes a new
sentence that would result in the defendant serving time in prison in excess
of the statutory maximum.” Commonwealth v. Crump, 995 A.2d 1280,
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1284 (Pa. Super. 2010) (citation omitted). He is not entitled to credit for time
spent on probation. Id.Here, Loduca entered a plea to one count of terroristic threats, a first-
degree misdemeanor, and one count of simple assault, a second-degree
misdemeanor. The statutory maximum sentences for those charges are five
and two years of imprisonment, respectively. 18 Pa.C.S. § 1104. The trial
court applied all time credit for pretrial detention and detention following his
probation violation to the count of terroristic threats. Thus, when it revoked
the period of probation for the charge of simple assault, it was entitled to
sentence Loduca to the statutory maximum of two years’ imprisonment, as he
had already received the benefit of his time served as applied to his sentence
for terroristic threats. He is not entitled to duplicative credit. Davis, supra.
Commonwealth v. Williams, 662 A.2d 658 (Pa. Super. 1995), which
Loduca relies on in support of his position, is inapposite. There, the defendant
was originally sentenced to 11.5 to 23 months of incarceration with a
consecutive period of probation for a single count of attempted theft by
unlawful taking. Following a probation revocation, the trial court resentenced
him to the statutory maximum of 3.5 to 7 years’ imprisonment, without
granting him time credit for the 23 months he had already spent in jail. This
Court reversed, holding that the new sentence was illegal because in failing to
grant time credit for the 23 months he had already served, the trial court
imposed a sentence that exceeded the lawful maximum for the charge. Id.-7-
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at 659 (citing 42 Pa.C.S. § 9760). Notably, the defendant in Williams was
sentenced on a single charge and all time credit in the case was applied to
that charge.
In contrast, Loduca was sentenced on two separate counts following his
no contest plea: terroristic threats and simple assault. The trial court applied
his time credit for pretrial detention and detention on the probation detainer
to his sentence for terroristic threats, and the total sentence on that charge
did not exceed the statutory maximum of five years. As a result, Loduca had
no time credit available to apply to the charge of simple assault, as the law
does not require that he receive duplicative time credit on that charge
following his probation violation.6
Next, Loduca contends that his sentence is illegal because terroristic
threats and simple assault merge for sentencing purposes. The crime of
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6 Moreover, Loduca has provided no support for his contention that he was
entitled to time credit on his original sentence of probation for simple assault,
and our research has uncovered none. To the contrary, the Sentencing Code
provides that a defendant is entitled to time credit for “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.” 42 Pa.C.S.
§ 9760(1) (emphasis added). Here, the time credit was properly applied
toward the count of terroristic threats for which Loduca was sentenced to
incarceration. The sentence of probation was current to his sentence for
terroristic threats and began on the date of his sentencing: January 22, 2020.
Accordingly, he was still serving this sentence when the probation violation
report was filed and the trial court had authority to proceed with the revocation
hearing and resentencing. See Commonwealth v. Mathias, 121 A.3d 558,
563 (Pa. Super. 2015) (trial court retains authority to revoke probation and
resentence a defendant if he commits a violation before the probationary
period expires).
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terroristic threats requires proof that the defendant “communicate[d], either
directly or indirectly, a threat to. . . commit any crime of violence with intent
to terrorize another.” 18 Pa.C.S. § 2706(a)(1). The threat of violence must
be communicated “with the intent to terrorize another or with reckless
disregard for the risk of causing terror.” Commonwealth v. Beasley, 138
A.3d 39, 46 (Pa. Super. 2016) (citation omitted). Simple assault by physical
menace requires proof that the defendant “attempt[ed] by physical menace
to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.
§ 2701(a)(3). Simple assault by physical menace requires proof that the
defendant “intentionally plac[ed] another in fear of imminent serious bodily
injury through the use of menacing or frightening activity.” Commonwealth
v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003) (citation omitted).
Offenses merge when “the crimes arise from a single criminal act and
all of the statutory elements of one offense are included in the statutory
elements of the other offense.” 42 Pa.C.S. § 9765. In Commonwealth v.
Edwards, 256 A.3d 1130 (Pa. 2021), our Supreme Court explained that
merger requires an analysis of the elements of the statute, not the specific
facts of the case at issue. See id. at 1137-38 (finding that aggravated assault
and recklessly endangering another person did not merge, even when arising
out of a single act, when not all statutory alternatives for the former crime
were subsumed by the elements of the latter).
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Simple assault by physical menace and terroristic threats each have
statutory elements not included in the other, even though a single criminal
act may support both convictions. This subsection of simple assault requires
proof of physical menace, a mens rea of intent and imminent physical violence.
In contrast, terroristic threats may be proven with any threat of a crime of
violence, imminent or otherwise, and a mens rea of recklessness. Because it
is possible to fulfill the statutory elements of each crime without committing
the other, the two do not merge for sentencing purposes. 42 Pa.C.S. § 9765;
Edwards, supra. This claim is meritless.
Finally, Loduca cites Simmons, supra to argue that the trial court
lacked the authority to impose concurrent sentences of county parole and
probation. However, Simmons held that a trial court may not anticipatorily
revoke a sentence of probation when the defendant has not yet begun serving
that sentence. Simmons, supra, at 527. It did not hold that trial courts may
not impose concurrent sentences of probation and incarceration or parole.
Here, Loduca’s year of probation began on January 22, 2020, when he was
sentenced by the trial court. As a result, he was serving that sentence at the
time of his violations and revocation and his sentence does not run afoul of
Simmons. Mathias, supra; supra note 6.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/26/2022
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