J-S29029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEWAYNE J. HOLLAND :
:
Appellant : No. 2354 EDA 2019
Appeal from the PCRA Order Entered August 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0105551-2005
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: Filed: November 19, 2020
Appellant Dewayne J. Holland appeals from the order dismissing his
first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition.
Appellant contends counsel was ineffective by not filing a motion to dismiss
the charges because of an untimely probation/sentencing hearing. Appellant
also argues that his violation of probation (VOP) sentence was illegal
because he was not given credit for time served. We affirm.
We adopt the facts presented in the trial court’s opinion. PCRA Ct.
Op., 12/16/19, at 1-3. We reiterate that Appellant has been incarcerated
since his arrest on the new criminal charges. On July 17, 2017, the VOP
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* Retired Senior Judge assigned to the Superior Court.
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court revoked Appellant’s probation and sentenced Appellant to two-and-a-
half to five years’ imprisonment. Id. at 3. Appellant did not appeal.
On July 10, 2018, Appellant filed a timely, handwritten pro se PCRA
petition raising, among other claims, that his VOP counsel was ineffective by
“not getting [Appellant’s] detainer time credit to [incomprehensible]
sentence imposed.” PCRA Pet., 7/10/18, at 4. The PCRA court appointed
PCRA counsel for Appellant. On September 4, 2018, PCRA counsel filed an
amended PCRA petition that incorporated the claims raised in Appellant’s pro
se petition and also raised a claim that Appellant’s trial counsel “was
ineffective for not objecting to the VOP hearing because [Appellant] was
denied his right to a prompt VOP hearing . . . .” Am. PCRA Pet., 9/4/18, at
2.
On July 9, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice,
which stated that Appellant’s issues lacked merit. Appellant did not file a
response. On August 8, 2019, the PCRA court dismissed Appellant’s PCRA
petition. Order, 8/8/19. On August 13, 2019, Appellant timely appealed.
The PCRA court did not order Appellant to comply with Pa.R.A.P. 1925(b),
but filed an opinion on December 16, 2019.
Appellant raises the following two issues:
1. Was defense counsel at [Appellant’s] VOP/sentencing hearing
ineffective for failing to file and litigate a motion to dismiss the
charges because [A]ppellant was denied a prompt
VOP/sentencing hearing?
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2. Was the sentence imposed by the trial court illegal because
[A]ppellant was not given credit for time served[?]
Appellant’s Brief at 2.
In support of his first issue, Appellant argues that his trial counsel was
ineffective by failing to file a motion to dismiss the charges because of a
failure to hold a prompt VOP/sentencing hearing. Id. at 8. Appellant
reasons that fifteen months elapsed between his underlying conviction and
the VOP/sentencing hearing, and only one of the fourteen continuances
should be attributed to him. Id. Appellant summarily argues that he “met
the three prong test [for ineffectiveness] because his claim has arguable
merit, counsel had no reasonable basis for not [filing] the speedy/prompt
hearing motion, and [he] was prejudiced by counsel’s failure.” Id. at 9.
The standard of review is well-settled:
Initially, we note that 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. 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.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant 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. The burden is on the
defendant 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
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reasonable probability that the outcome of the proceedings
would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would
have chosen that action or inaction, or, the alternative, not
chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client’s interests. We do not employ a
hindsight analysis in comparing trial counsel’s actions with other
efforts he may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered), appeal denied, 216 A.3d 1029
(Pa. 2019).
After careful review of the parties’ briefs, the record, and the PCRA
court’s opinion, we affirm the PCRA court on its disposition of Appellant’s
first issue. See PCRA Ct. Op. at 4-9.
In support of his second issue, we quote Appellant’s one-paragraph
argument as follows:
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The trial court did not give [Appellant] credit for time served.
Credit for time served in sentencing [Appellant] is mandatory.
Failure to give credit for time served makes the sentence
imposed in this case illegal. Challenges to the legality of
sentence cannot be waived. This Court has jurisdiction to
address this issue since [Appellant] timely filed his PCRA petition
and this Court has jurisdiction to address the legality of the
sentence. The judgment of sentence should be vacated in this
case.
Id. at 10-11 (citations omitted). Appellant appears to be arguing that he
should be given credit for time served from either November 17, 2014, the
date of Appellant’s arrest and incarceration on the new criminal charges, or
April 26, 2016, the date that Appellant was convicted on the new charges.
See id. at 3, 7; Commonwealth’s Brief at 13.
In response to Appellant’s second issue, the Commonwealth counters
that Appellant “was credited for that time on his sentence for the new
conviction.” Commonwealth’s Brief at 13 (citing N.T. Sentencing Hr’g,
11/18/16, at 8).1 The Commonwealth reasons that “[b]ecause [Appellant’s]
time served was credited to the sentence for the new conviction[, Appellant]
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1 The sentencing hearing transcript for Appellant’s new convictions was not
transmitted to this Court as part of the certified record, but Appellant does
not dispute the accuracy of the Commonwealth’s citation. See also
Commonwealth v. Holland, 2018 WL 3121765 (Pa. Super. filed June 26,
2018) (unpublished mem.) (resolving Appellant’s direct appeal for the new
conviction). Appellant’s appellate brief for the aforementioned direct appeal
states that the trial court gave Appellant credit for time served for the new
criminal charges. See Appellant’s Brief, 2017 WL 9286443, at *7.
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would have received an impermissible double benefit if it had also been
credited to [Appellant’s] VOP sentence.” Id.
A petitioner can challenge the legality of the sentence in a timely PCRA
petition. Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super.
2007). Section 9760 of the Sentencing Code provides as follows:
(1) 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.
* * *
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or acts that
occurred prior to his arrest, credit against the maximum term
and any minimum term of any sentence resulting from such
prosecution shall be given for all time spent in custody under the
former charge that has not been credited against another
sentence.
42 Pa.C.S. § 9760(1), (4).
In Commonwealth v. Smith, 853 A.2d 1020 (Pa. Super. 2004), this
Court addressed the defendant’s claim “that the trial court erred by not
crediting his sentence with the time that he was incarcerated under a
probation detainer lodged as a result of his criminal activity.” Smith, 853
A.2d at 1022. In resolving the issue, the Smith Court summarized Martin
v. Pa. Bd. of Probation & Parole, 840 A.2d 299 (Pa. 2003), as follows:
In Martin, our Supreme Court considered “whether and when
credit for time served may be awarded by [the Pennsylvania
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Board of Probation and Parole] against a prior sentence on the
basis of pretrial detention related to a subsequent offense.” The
Court held that incarceration attributable to both a parole
detainer and new criminal charges must be attributable to either
the new sentence or the original sentence. In the present case,
we are required to determine whether [the defendant] may be
awarded credit for time served against his sentence based on
pretrial detention related to a prior offense. We hold that,
because [the defendant’s] pretrial incarceration is attributable to
both his probation detainer and the new criminal charges, it
must be attributed to either his sentence under the new criminal
charges or to a sentence imposed for violation of probation.
Because [the defendant’s] pre-trial incarceration was not already
credited to any violation of his probation, it was error for the trial
court to refuse to give credit to [the defendant] on his June 17,
2002 sentence.
Smith, 853 A.2d at 1026 (citation omitted).
Instantly, unlike the defendant in Smith, Appellant apparently
received credit for time served for his pre-trial incarceration attributable to
his new criminal charges.2 Cf. Smith, 853 A.2d at 1026; cf. also Holland,
2018 WL 3121765, at *1; Appellant’s Brief at 3 (arguing he should be given
credit for time served from November 17, 2014, the date of his arrest and
incarceration for the new criminal charges), 7 (asserting entitlement to
credit for time served from April 26, 2016, the date of his conviction for the
new criminal charges). Because it appears Appellant was already given
credit for time served for his pre-trial incarceration on his new criminal
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2 See Appellant’s Brief, 2017 WL 9286443, at *7 (stating, in Appellant’s
appellate brief for his new criminal charges, that the trial court gave him
“credit for time served”).
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charges, he is not entitled to receive credit for time served for his “sentence
imposed for violation of probation.” See Smith, 853 A.2d at 1026. For
these reasons, Appellant is not entitled to relief and we affirm the PCRA
court’s order. See Sandusky, 203 A.3d at 1043-44.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/20
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Circulated 10/30/2020 10:52 AM
0051_Opinion