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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEITH THOMAS COYNE :
:
Appellant : No. 904 MDA 2018
Appeal from the PCRA Order May 4, 2018
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000139-2016,
CP-38-CR-0000203-2016
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 18, 2019
Appellant Keith Thomas Coyne appeals from the order denying his
timely first petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Appellant argues that plea counsel’s ineffectiveness
caused him to enter an unknowing and involuntary plea. He also claims that
counsel’s failure to specify the dates of Appellant’s time credit resulted in 355
days of uncredited time towards his sentence. We affirm.
Appellant, while on state parole from a previous matter,1 was arrested
for driving under the influence (DUI) and related offenses on July 24, 2015.
See CP-38-CR-139-2016. Appellant was released on bail, and on December
5, 2015, Appellant was arrested for another DUI and related offenses. See
____________________________________________
1 Appellant was paroled from a state correctional institution on unrelated
charges in Lackawana County on October 27, 2011. Appellant’s maximum
date of supervision in that case was February 9, 2020.
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CP-38-CR-203-2016. That same date, the Pennsylvania Board of Probation
and Parole (Board) lodged a detainer against Appellant.
Appellant waived his preliminary hearing in both cases on January 14,
2016. On February 5, 2016, the Commonwealth filed a criminal information
at 139-2016, charging Appellant with DUI (fourth or subsequent offense) and
two summary traffic violations.2 On February 11, 2016, the Commonwealth
filed a criminal information at 203-2016, charging Appellant with fleeing or
attempting to elude a police officer, DUI (fourth or subsequent offense),
recklessly endangering another person (REAP), receiving stolen property
(RSP), and eight summary traffic violations.3
On September 20, 2016, Appellant, who was represented by plea
counsel, executed written guilty plea colloquies and entered a negotiated
guilty plea to fleeing or attempting to elude a police officer, DUI, REAP, RSP,
and DUI with a suspended license. See Written Guilty Plea Colloquies, 203-
2016 & 139-2016, 9/20/16.
In relevant part, the written colloquies provided that (1) the agreed-
upon sentence was either state intermediate punishment (SIP) or, if Appellant
was not accepted to SIP, then a term of two to five years’ incarceration; (2)
no promises had been made other than the terms of the negotiated plea
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2 75 Pa.C.S. §§ 3802(a)(1), 4703(a), and 1543(b)(1.1)(i).
3 75 Pa.C.S. §§ 3733(a), 3802(a)(1); 18 Pa.C.S. §§ 901(a), 3925(a); 75
Pa.C.S. §§ 1543(b)(1.1)(i), 1501(a), 3736(a), 3323(b), 3323(b), 3308(a),
1372(1), and 3361.
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agreement; (3) the sentencing court was not bound by the terms of the plea
agreement; (4) the plea could be withdrawn if the sentencing court rejected
the plea agreement; and (5) the plea would result in a parole violation for
which a term of incarceration may be imposed. Id. at 1-6.
That same day, Appellant participated in an oral plea colloquy with the
Honorable Robert J. Eby. During the colloquy, the court reiterated the terms
of Appellant’s negotiated plea as follows:
[The Court]: The plea agreement as to both counts is identical.
That is[,] the sentencing Judge will direct your entry into the State
Intermediate Punishment Program. If for any reason you were
not accepted into that program, you will receive a two-to-five year
sentence in a state institution. Do you understand that plea
agreement?
[Appellant]: Yes, I do.
[The Court]: Is that your agreement?
[Appellant]: Yes. Your Honor, would that be running concurrent
with any and all charges?
[The Court]: There is nothing reflected in the plea agreement one
way or the other.
[Appellant]: Should it be there?
[The Court]: That is the Judge’s discretion at sentencing.
[Appellant]: At sentencing?
[The Court]: Yes, sir.
[Appellant]: Thank you.
[The Court]: Do you understand?
[Appellant]: Yes.
N.T. Guilty Plea Hr’g, 9/20/16, at 3-4.
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On November 16, 2016, Appellant proceeded to sentencing before the
Honorable Samuel A. Kline. At that time, plea counsel indicated that Appellant
was not approved for SIP. Plea counsel requested that the court impose the
negotiated plea of two to five years’ state incarceration, and the court agreed.
N.T. Sentencing, 11/16/16, at 2-4. Plea counsel noted that Appellant was a
veteran with a history of drug and alcohol addiction, and explained to the court
that Appellant had a pending DUI charge in Dauphin County 4 along with a
state parole violation. Id. at 3.
The court thereafter sentenced Appellant to an aggregate term of two
to five years’ imprisonment.5 Id. Although not included in the plea
agreement, the court also made Appellant eligible for the Recidivism Risk
Reduction Incentive Program (RRRI), and explained to Appellant that the RRRI
designation may result in a minimum sentence of less than two years. Id. at
17-18.
The trial court ordered that Appellant receive credit for time served, but
indicated that “[a]ll of those credits are solely in the discretion of the DOC.”
Id. at 17. At the conclusion of the hearing, Appellant asked the court whether
his sentences would run concurrent to his parole violations, and the court
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4It appears that Appellant was charged in the Dauphin County case in October
of 2015.
5 The trial court’s aggregate sentence in this matter included concurrent terms
of one to two years’ incarceration for fleeing/eluding a police officer, six to
twelve months’ incarceration for RSP, and sixty to ninety days’ incarceration
for driving with a suspended license, and a consecutive term of one to three
years’ incarceration for DUI.
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stated, “I can’t say that, because I don’t have control over the [parole
violation].” Id. at 18. Appellant did not file any post-sentence motions or a
direct appeal.
Appellant, acting pro se, timely filed his first PCRA petition, which the
PCRA court docketed on November 1, 2017. Thereafter, the PCRA court
appointed counsel, Melissa Rae Montgomery, Esq., who filed an amended
petition on December 18, 2017.
Appellant argued that he was deprived of his “constitutionally
guaranteed right to a fair sentence” because he is serving a sentence different
from the one intended by the trial court. See Am. PCRA Pet., 12/18/17, at 1.
Appellant also asserted that the trial court’s intended sentence was illegal,
because (1) he was statutorily precluded from serving a backtime sentence
concurrent with his plea sentence; and (2) he was not eligible for RRRI. See
Am. PCRA Pet., 12/18/17, at 1; see also Pro Se PCRA Pet., 11/1/17, at 9
(unpaginated).
Moreover, Appellant claimed that plea counsel was ineffective for failing
to advise Appellant that he was ineligible for RRRI due to his REAP conviction
and that he could not serve a backtime sentence concurrent with his new
sentence. See Am. PCRA Pet., 12/18/17, at 1; see also Pro Se PCRA Pet.,
11/1/17, at 9 (unpaginated). Appellant concludes that, as a result of plea
counsel’s failures, Appellant’s guilty plea was not knowing or voluntary. See
Am. PCRA Pet., 12/18/17, at 1; see also Pro Se PCRA Pet., 11/1/17, at 9
(unpaginated).
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Finally, Appellant argued that plea counsel was ineffective for failing to
object when the trial court ordered that the DOC would determine the amount
of Appellant’s time credit. See Am. PCRA Pet., 12/18/17, at 2; see also Pro
Se PCRA Pet., 11/1/17, at 11 (unpaginated). He also argued that counsel
failed to ensure that the specific dates for his time credit were placed on the
trial court’s sentencing order. See Am. PCRA Pet., 12/18/17, at 2; see also
Pro Se PCRA Pet., 11/1/17, at 12 (unpaginated).
On May 3, 2018, the PCRA court held an evidentiary hearing, at which
both Appellant and plea counsel testified. Appellant testified that his guilty
plea was based on plea counsel’s advice that (1) Appellant would be eligible
for RRRI; and that (2) Appellant’s plea sentence would run concurrent with
his parole violation sentences. N.T. PCRA Hr’g, 5/3/18, at 7, 11. Specifically,
Appellant testified that he had multiple conversations with plea counsel about
whether his sentence would run concurrent with his parole violation, and that
based on those conversations, Appellant was “under the assumption that was
the case.” Id. Appellant also indicated that “in the sentencing order, Judge
Kline said I believe that was the case, that everything is concurrent. It says
for all other sentences.” Id. at 12. Finally, Appellant testified that although
the trial court awarded him credit for time served, he did not receive credit
for 355 days that he spent in custody. Id. at 14.
Plea counsel testified that he made no guarantees to Appellant
concerning his RRRI eligibility. Id. at 26. He explained that the terms of the
plea agreement were fully outlined on the guilty plea colloquies, which did not
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mention RRRI. Id. Further, plea counsel testified that if there was “a
guarantee on [RRRI] in some way, I would have put that on the written plea
bargain and I would have completed that written section before [Appellant]
went through and ‘X’d’ the answer[s] and initialed the bottom of every page,
and signed at the end of that.” Id.
Plea counsel also testified that although Appellant’s impending parole
violation had been discussed frequently, he never told Appellant that his
parole violation sentence would run concurrently with his plea sentence. Id.
at 25. Plea counsel explained that he “made other very direct representations
to [Appellant] that we couldn’t determine how the [parole violation] would be
run.” Id. Specifically, he told Appellant that “the best we could do is hope
and request the sentencing judge to run all of the time on these cases
concurrent to each other and concurrent to any other sentences he is serving,
which is ultimately what Judge Kline did [in] his sentence.” Id.
At the conclusion of the hearing, the PCRA court concluded that plea
counsel’s testimony was credible, and that plea counsel did not make any
promises to Appellant concerning his RRRI eligibility. The court also found
that counsel did not misrepresent the fact that there was “no guarantee about
what the Parole Board would or could do.” Id. at 32. The PCRA court
explained:
I’m going to make a finding that I believe [plea counsel], who is
a member of the Lebanon County Bar for a number of years, was
credible, honest, and discussed with [Appellant] a variety of items,
not limited to no guarantee about what the Parole Board would or
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could do, nor could this court make. I think there are some
references to the transcript in that.
Let’s deal with the guilty plea. He plead guilty to a sentence of 2
to 5 years. It was silent as to concurrent or consecutive. This
isn’t a case where I did that. I made it concurrent. How could
that be actionable under the PCRA?
Second, there was no guarantee on the RRRI eligibility in the
guilty plea, but I made [Appellant] RRRI eligible. I gave
[Appellant] something that he didn’t even negotiate. The problem
comes in at the Board determines that, and found that he wasn’t
eligible. That is neither the fault of [plea counsel], nor the fault
of the court. It’s the decision of the Board of Probation and Parole,
and [Appellant] had an opportunity to appeal and he did. That
decision was denied. That is not actionable under the PCRA Act.
Accordingly, that part of the PCRA is dismissed.
Now the assertion that I wouldn’t have entered into this plea if I
had known all of this is also not actionable because Judge Eby
clearly defined in the transcript[6] that it could be either
consecutive or concurrent. I gave him the lesser. I gave him 2
years to 5 years, but I gave him RRRI eligible. To now come at
this point and say I was confused is not consistent with the record.
I find that [plea counsel]’s testimony to be consistent and
[Appellant] was advised of these risks. Unfortunately for
[Appellant], they came true. And I say that because I wish the
Board of Probation and Parole had ruled differently for him
because of the circumstances. What I wished for [Appellant] and
what happens in this PCRA hearing are two different things. There
is nothing in the petition that merits a consideration that grants a
PCRA finding [plea counsel] not competent or finding that he
hadn’t fulfilled his duties. He did everything that he could . . . to
represent this [Appellant] diligently and he did so. As a matter of
fact, he convinced the court to grant RRRI eligibility. The
unfortunate part for [Appellant] is not something that Attorney
Warner failed to do, it’s something that the Board of Parole didn’t
do. But that was a risk that I believe [plea counsel] had told him.
He couldn’t control that. As a matter of fact, [plea counsel]
indicated that he had trouble getting answers from them and he
explained that to him. How could he, he being [plea counsel] or
____________________________________________
6 See N.T. Guilty Plea, 9/20/16.
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this court, know that the Board of Probation was going to run the
violations consecutive or stack them?
By your own admission, [Appellant], you acknowledge that you
had a series of DUIs. If we were to make PCRAs cogn[iz]able
because of these potentials, this court would be opened up to
every person who has an adverse decision by the Board of
Probation and Parole to a PCRA claim that is not actionable based
on the construct that they believed that even though the Judge
sentenced them to what they wanted, they are not getting that
benefit of the bargain now, and were somehow misled. You
weren’t misled by [plea counsel]. He told you the potentials for
that, he just didn’t know what was going to happen. He hoped for
that, but it didn’t.
Moreover [Appellant], you had an opportunity to address an error
that was created by the Board of Probation through the
administrative appeals. You didn’t convince them that it was
actionable and therefore took this step, which I’m not blaming
you. I probably would have done the same thing too if I was in
the same boat as you. But being in the same boat and asking the
court for it is different than whether the court can grant it. I
believe the court does not have the authority to consider the RRRI
eligibility. More importantly, when you look at the Post Conviction
Relief Act, I have to find some error by [plea counsel]. I can’t find
that either. [Plea counsel] got you the best deal you could have
gotten under the plea, even better than what the deal was. The
court sentenced you consistent with that. What happened to you
was beyond this court and well beyond any representation by
[plea counsel], which I found to be excellent and the best he could
do for you.
***
And may I say, and don’t take this as a threat because I, in no
way, want to make it sound like that, had you gone to trial on
these matters, you likely would have gotten a larger sentence than
you already did and they may have been consecutive. What
Attorney Warner got for you was the best you could get. What is
unfortunate for you is the Board of Probation and Parole and their
determinations of your violations of other sentences, not these,
determined they were going to stack those. I can’t control that.
You had a remedy and that was an appeal which you took and I
believe based on what you told me you took, and it was adverse
to you.
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N.T. PCRA Hr’g, 5/3/18, at 32-36 (some capitalization omitted).
On May 4, 2018, the PCRA court entered an order denying Appellant’s
PCRA petition. Appellant filed a timely notice of appeal on June 1, 2018, and
a Pa.R.A.P. 1925(b) statement on June 11, 2018. On July 26, 2018, in lieu of
a Rule 1925(a) opinion, the PCRA court issued an order directing this Court to
review a portion of the PCRA hearing transcript in which the court set forth its
findings of fact. See Order, 7/26/18; see also N.T. PCRA Hr’g, 5/3/18, at
32-26.
On appeal, Appellant presents the following issues for our review:
1. Whether the Appellant was denied his constitutionally
guaranteed right to a fair sentence when the trial court
intended for Appellant’s sentence to be served concurrent with
anything else he was serving at the time and that he would be
RRRI eligible; however, Appellant’s sentence is being served
consecutively and he is not RRRI eligible[.]
2. Whether Appellant was denied his constitutionally guaranteed
right to effective representation when his prior counsel failed
to specify the dates Appellant should be awarded time credit
for at the time of his sentencing[.]
Appellant’s Brief at 4 (some capitalization omitted).
In his first claim, Appellant essentially argues that plea counsel’s
ineffectiveness caused him to enter an involuntary and unknowing guilty plea.7
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7 To the extent Appellant suggests that he was deprived of his “constitutionally
guaranteed right to a fair sentence” because he is serving a sentence different
from the one intended by the trial court, no relief is due. See Appellant’s Brief
at 4, 7. At the outset, we note that Appellant’s argument on this matter
consists of single sentences in his issues presented and the argument section
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Id. at 7. Specifically, Appellant asserts that plea counsel should have
informed him that (1) he was ineligible for RRRI due to his REAP conviction;
and (2) the trial court could not order the instant sentence to run concurrently
with Appellant’s parole violation sentence. Id. at 10. Appellant maintains
that he could not have entered a voluntary plea because it was based on plea
counsel’s “misleading information and discussions with Appellant.” Id. at 13.
Appellant asserts that “he only accepted the guilty plea because he was under
the impression that he would be receiving a minimum sentence of 18 months.
He is now looking at a possible four[-]year sentence.” Id. at 11.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
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of his brief. See id. Accordingly, this claim is waived. See Pa.R.A.P. 2119(a)
(stating that the argument must include discussion and citations to pertinent
authorities); see also Commonwealth v. Plante, 914 A.2d 916, 924 (Pa.
Super. 2006) (stating that “[w]e have repeatedly held that failure to develop
an argument with citation to, and analysis of, relevant authority waives the
issue on review” (citation and quotation marks omitted))
In any event, with respect to RRRI, we note that a court’s imposition of an
RRRI minimum sentence does not guarantee that a defendant will be paroled
on the expiration of that term. See Commonwealth v. Hansley, 47 A.3d
1180, 1188 (Pa. 2012) (stating that the parole board is ultimately responsible
for determining whether an offender is eligible for parole upon the completion
of the RRRI minimum sentence). Moreover, as to the consecutive nature of
the present sentences to his backtime sentence, the trial court did not order
Appellant’s sentence to run concurrent to his backtime sentence. See 61
Pa.C.S. § 6138(a)(5) (stating that once a parolee is recommitted as a
convicted parole violator, the original sentence and any new sentences must
be served consecutively).
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Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (citation omitted).
To establish a claim of ineffective assistance of counsel, a petitioner
“must show, by a preponderance of the evidence, ineffective assistance of
counsel which, in the circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” Commonwealth v. Turetsky, 925 A.2d 876, 880
(Pa. Super. 2007) (citation omitted).
Counsel is presumed effective, and the burden is on the petitioner to
prove all three of the following prongs: “(1) the underlying claim is of arguable
merit; (2) that counsel had no reasonable strategic basis for his or her action
or inaction; and (3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different.” Id. (citation omitted); see Commonwealth v. Daniels, 963 A.2d
409, 419 (Pa. 2009). It is well settled that “[c]ounsel cannot be deemed
ineffective for failing to pursue a meritless claim.” Commonwealth v. Loner,
836 A.2d 125, 132 (Pa. Super. 2003) (en banc) (citation omitted).
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused [the
defendant] to enter an involuntary or unknowing plea.” Commonwealth v.
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Allen, 732 A.2d 582, 587 (Pa. 1999) (citation omitted). “In order to make a
knowing and intelligent waiver, the individual must be aware of both the
nature of the right and the risks and consequences of forfeiting it.”
Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citation
omitted). “To determine a defendant’s actual knowledge of the implications
and rights associated with a guilty plea, a court is free to consider the totality
of the circumstances surrounding the plea.” Allen, 732 A.2d at 588-89.
Further, a “valid plea colloquy must delve into six areas: 1) the nature
of the charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4)
the presumption of innocence, 5) the sentencing ranges, and 6) the plea
court’s power to deviate from any recommended sentence.” Commonwealth
v. Reid, 117 A.3d 777, 782 (Pa. Super. 2015) (citation omitted).
“Furthermore, nothing in [Pa.R.Crim.P. 590] precludes the supplementation
of the oral colloquy by a written colloquy that is read, completed and signed
by the defendant and made a part of the plea proceedings.” Commonwealth
v. Bedell, 954 A.2d 1209, 1212-13 (citation omitted); see also Pa.R.Crim.P.
590 cmt. “A person who elects to plead guilty is bound by the statements he
makes in open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003)
(citation omitted).
Here, the written plea colloquies contain Appellant’s handwritten
acknowledgements of the terms of his plea: “global plea . . . State IP program
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or if not accepted into State IP program 2yrs-5yrs.” See Written Guilty Plea
Colloquies, 203-2016 and 139-2016, 9/20/16, at 6. Appellant acknowledged
that no promises had been made beyond those terms, which he understood,
and wished to accept. Id.
Additionally, at the oral colloquy, the trial court specifically advised
Appellant that the plea did not include any terms concerning whether
Appellant’s sentence would run concurrent or consecutive to other sentences.
See N.T. Guilty Plea Hr’g, 9/20/16, at 3-4. Appellant indicated that he
understood. Id. Appellant is bound by his statements, which confirmed his
understanding of the terms included in his plea agreement, and demonstrates
the basis for his decision to plead guilty. See Pollard, 832 A.2d at 523.
Moreover, testimony from the PCRA hearing established that plea
counsel made no guarantees to Appellant concerning his eligibility for RRRI,
nor did counsel advise Appellant that his plea sentence would run concurrent
with a future parole violation sentence. The PCRA court found plea counsel’s
testimony credible. In light of the PCRA court’s credibility determinations,
which are supported by the record, we agree that Appellant’s decision to plead
guilty was not based on inaccurate advice from plea counsel. See Mitchell,
105 A.3d at 1265.
Therefore, based on the totality of these circumstances, we agree with
the PCRA court that Appellant’s ineffectiveness claim lacks arguable merit.
See Allen, 732 A.2d at 587. Accordingly, the court properly denied PCRA
relief on this claim.
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In his second issue, Appellant argues that although the trial court
awarded him credit for time served, counsel was ineffective for failing to
specify the dates for Appellant’s time credit. Appellant’s Brief at 15. Appellant
argues that plea counsel’s failure has resulted in “a total of 355 days in prison
that are not being credited to Appellant’s sentences.” Id. at 16.
By way of background, at the PCRA hearing, Appellant testified that he
filed a petition with the Board seeking 355 days of credit for the time he spent
in custody pending disposition of the instant case. See N.T. PCRA Hr’g,
5/3/18, at 13. The Board denied Appellant’s request, and explained that the
355 days would be credited towards Appellant’s new sentence, and not to his
backtime. See Ltr. from Parole Board, 1/31/18, at 2. The PCRA court
explained to Appellant that a decision from the Parole Board should be
appealed in Commonwealth Court, and not through the PCRA. See N.T. PCRA
Hr’g, 5/8/18, at 15. The PCRA court further noted that counsel was not
ineffective for failing to request specific dates for time credit, as the trial court
properly ordered “credit for time served.” Id. at 34.
Initially, we note that “[a] challenge to the trial court’s failure to award
credit for time spent in custody prior to sentencing involves the legality of
sentence and is cognizable under the PCRA.” Commonwealth v. Fowler,
930 A.2d 586, 595 (Pa. Super. 2007) (citations omitted). “Issues relating to
the legality of a sentence are questions of law.” Commonwealth v. Furness,
153 A.3d 397, 405 (Pa. Super. 2016) (citation omitted). As such, our standard
of review is de novo, and our scope of review is plenary. Id.
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Where a defendant is awaiting trial for new charges while simultaneously
awaiting disposition on an alleged parole violation, we have explained that
all time served by a parole violator while awaiting disposition on
new charges must be credited to the original sentence if he or she
remains in custody solely on a Board detainer. If the defendant
is incarcerated prior to disposition, and has both a detainer and
has failed for any reason to satisfy bail, the credit must be applied
to the new sentence by the sentencing court.
Commonwealth v. Mann, 957 A.2d 746, 751 (Pa. Super. 2008) (citations
omitted).
In Mann, counsel for the defendant, who was on state parole, requested
that the trial court refrain from awarding the defendant credit for the time he
was incarcerated prior to disposition of his new charges. Id. Instead, defense
counsel asked that the credit be “reserved” and applied towards the
defendant’s imminent recommitment to serve backtime on his parole
violation. Id. at 748. The trial court granted defense counsel’s request, and
issued an order stating that the defendant “is given no time credit for any of
the time spent on these charges and that time is to go towards other matters,
the state parole violations.” Id. at 748. On appeal, this Court held that it was
error for the trial court to comply with counsel’s request. Id. at 748-49. This
Court ultimately agreed with the defendant’s assertion that it “was not legally
appropriate, since he was entitled to the credit, and the sentencing court was
not at liberty to reserve the credit for a later parole disposition.” Id. at 748.
Recently, in Commonwealth v. Gibbs, 181 A.3d 1165 (Pa. Super.
2018), a panel of this Court reiterated that when a defendant remains in
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custody because he is subject to a Board detainer for a parole violation and
fails to satisfy bail on the new charges, credit for that time should be applied
to the defendant’s new sentence, and not to his original sentence. Gibbs,
181 A.3d at 1168.
Here, the trial court’s sentencing order properly indicated that Appellant
should receive credit for time served. Although Appellant was subject to a
Board detainer when he was in custody on the present matters, he was not
able to satisfy bail on the underlying charges. Accordingly, the 355 days of
time credit should be applied to Appellant’s new sentence, and not to his
backtime. See Gibbs, 181 A.3d at 1168; see also Mann, 957 A.2d at 748.
Contrary to Appellant’s claim, the trial court does not have the authority to
specifically allocate time credit towards a backtime sentence. See id.
Therefore, plea counsel had no responsibility to place a meritless request on
the record during sentencing. See Loner, 836 A.2d at 132. Accordingly,
Appellant’s argument fails.
In sum, having reviewed Appellant’s arguments in light of the record,
we find no basis to conclude that the PCRA court erred in denying relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2019
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