Com. v. Vargas-Torres, H.

J-S66033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HECTOR VARGAS-TORRES, :
:
Appellant : No. 606 MDA 2014
Appeal from the Judgment of Sentence entered on February 18, 2014
in the Court of Common Pleas of Luzerne County,
Criminal Division, No. CP-40-CR-0001748-2013
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 21, 2014
Hector Vargas-Torres (“Vargas-Torres”) appeals from the judgment of
sentence entered after he pled guilty to assault by prisoner.1 Additionally,
Vargas-Torres’s court-appointed counsel, John Donovan, Jr., Esquire
(“Attorney Donovan”), has filed a Petition to Withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). We grant Attorney Donovan’s Petition to Withdraw, and affirm the
judgment of sentence.
On November 23, 2012, while Vargas-Torres was an inmate at the
State Correctional Institution at Retreat (“SCI-Retreat”), he stabbed a
correctional officer with a pen. At the time of the assault, Vargas-Torres was
serving a sentence of one to five years for his convictions of resisting arrest,
1
See 18 Pa.C.S.A. § 2703(a).
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disarming a law enforcement officer, and related charges (collectively
referred to as “the resisting arrest convictions”).
In October 2013, Vargas-Torres pled guilty to assault by prisoner. On
February 6, 2014, the trial court sentenced Vargas-Torres to two to four
years in prison, to run consecutively to the sentence he was already serving
for the resisting arrest convictions. In response, Vargas-Torres filed a
Motion for Credit for Time Served, seeking credit for the time he served in
SCI-Retreat from the date of the assault, November 23, 2012, to the date of
sentencing (a total of 440 days). The trial court denied this Motion on
February 18, 2014, after which Vargas-Torres filed a timely Notice of Appeal.
The trial court ordered Vargas-Torres to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and Vargas-Torres
timely complied. Subsequently, Attorney Donovan filed with this Court an
Anders Brief and Petition to Withdraw as counsel, opining that the claim
that Vargas-Torres wished to raise on appeal was wholly frivolous and that
there are no other meritorious issues to be presented.2
Before addressing Vargas-Torres’s issue on appeal, we must determine
whether Attorney Donovan has complied with the dictates of Anders and its
progeny in petitioning to withdraw from representation. Pursuant to
Anders, when counsel believes that an appeal is frivolous and wishes to
withdraw from representation, he must do the following:
2
Vargas-Torres did not retain alternate counsel for this appeal, nor did he
file a response to the Petition to Withdraw.
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(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders brief must
(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). “Once
counsel has satisfied the Anders requirements, it is then this Court’s duty to
conduct its own review of the trial court’s proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006)
(citation and brackets omitted).
Our review of Attorney Donovan’s Anders Brief and Petition to
Withdraw reveals that he has complied with the requirements of
Anders/Santiago. Additionally, Attorney Donovan has properly (1)
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provided Vargas-Torres with a copy of both the Anders Brief and Petition to
Withdraw; and (2) appended to the Petition to Withdraw a copy of the letter
that he sent to Vargas-Torres advising him of his right to retain new counsel,
proceed pro se, or raise any additional points that he deems worthy of this
Court’s attention. Accordingly, we next examine the record to make an
independent determination of whether Vargas-Torres’s appeal is, in fact,
wholly frivolous.
In the Anders Brief, Attorney Donovan explains that Vargas-Torres
wishes to challenge the sentencing court’s alleged failure to award him credit
for the 440 days that he served in custody prior to sentencing in the instant
case. See Anders Brief at 2. Vargas-Torres’s issue implicates the legality
of his sentence. See Commonwealth v. Johnson, 967 A.2d 1001, 1003
(Pa. Super. 2009).
Section 9760 of the Sentencing Code governs credit for time served,
and provides, in relevant part, that “[c]redit 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.” 42
Pa.C.S.A. § 9760(1). “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.” Commonwealth v.
Infante, 63 A.3d 358, 367 (Pa. Super. 2013) (emphasis added) (citing
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Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa. Super. 1995) (stating
that credit is not given for a commitment by reason of a separate and
distinct offense)).
Here, Attorney Donovan, and the trial court in its Pa.R.A.P. 1925(a)
Opinion, correctly point out that (1) at the time of the assault in question,
Vargas-Torres was already incarcerated and serving his sentence on the
unrelated resisting arrest convictions; and (2) he was still serving that
sentence at the time he was sentenced in the instant case. See Anders
Brief at 3; Trial Court Opinion, 5/15/14, at 2 (unnumbered). Moreover, the
sentencing court specifically fashioned Vargas-Torres’s sentence such that it
would not commence until he completed his sentence for the resisting arrest
convictions. See Trial Court Opinion, 5/15/14, at 2 (unnumbered) (stating
that “[o]ur intention was to have [Vargas-Torres] complete his [underlying]
sentence before he begins to serve the one imposed on February 6, 2014.”);
see also 18 Pa.C.S.A. § 2703(b) (mandating a consecutive sentence for an
offender convicted of assault by prisoner where the victim is a correctional
facility employee). Accordingly, Vargas-Torres was clearly not entitled to
have this period of presentence incarceration applied towards his sentence
for assault by prisoner. See Infante, supra; Miller, supra.We conclude that Vargas-Torres’s issue lacks merit, and our
independent review discloses no non-frivolous issues that he could present
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on appeal. Accordingly, we grant Attorney Donovan permission to withdraw
under the precepts of Anders, and affirm the judgment of sentence.
Petition to Withdraw as counsel granted; judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2014
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