J-A27045-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT TAYLOR, :
:
Appellant : No. 2641 EDA 2018
Appeal from the PCRA Orders Entered August 23, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006115-2013
CP-51-CR-0010800-2014
BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 24, 2020
Robert Taylor (Appellant) appeals from the August 23, 2018 orders
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Also before us is a petition to withdraw
filed by Appellant’s counsel and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We
affirm the orders dismissing the PCRA petition and grant counsel’s petition to
withdraw.
We provide the following background. On April 13, 2015, Appellant
was sentenced to three years of probation following a guilty plea to
insurance fraud at docket number CP-51-CR-0006115-2013 (fraud case).
*Retired Senior Judge assigned to the Superior Court.
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The next day, Appellant was sentenced to 11½ to 23 months of
incarceration, with 10 years of probation ran consecutively, following a guilty
plea to arson, burglary, and recklessly endangering another person (REAP)
at docket number CP-51-CR-0010800-2014 (arson case).
Appellant was paroled in 2015, and detained again in March 2016
when he was arrested in another matter. The trial court revoked his
probation in the fraud case and arson case in June 2016. The trial court
issued identical sentences at each docket, with the sentence at the arson
case running concurrently to the sentence at the fraud case. The resulting
sentence was 11½ to 23 months of incarceration, with credit for time served
and an immediate release on parole to house arrest, followed by five years
of probation.
After violating the terms of his house arrest, Appellant was detained in
September 2016. On December 16, 2016, Appellant’s parole and probation
were revoked at both docket numbers. Once again, the trial court issued
identical sentences at each docket to run concurrently to each other,
resulting in a sentence of three to six years of incarceration, with credit for
time served. Appellant did not file an appeal.
On April 24, 2017, Appellant filed pro se a PCRA petition. Robert
Kimble, Esquire, was appointed as counsel, and an amended petition was
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filed on March 9, 2018.1 On June 20, 2018, the PCRA court issued notices
that it intended to dismiss Appellant’s petition without a hearing pursuant to
Pa.R.Crim.P. 907. No responses to the notices were filed. The PCRA court
dismissed Appellant’s petition on August 23, 2018, via separate orders
listing each respective docket number.2
1 Appellant’s pro se petition was docketed only in the fraud case. Only the
amended petition was filed at both dockets. However, since the amended
petition was filed more than a year after his judgment of sentence became
final, see 42 Pa.C.S. § 9545(b)(1), the amended petition itself cannot be
considered a timely-filed petition. Furthermore, although the parties and the
PCRA court proceeded as if Appellant’s petition was filed at both dockets,
jurisdiction cannot be conferred by agreement. Commonwealth v.
Balance, 203 A.3d 1027, 1033 (Pa. Super. 2019).
Nevertheless, we are satisfied that we may proceed. Despite references in
Appellant’s pro se petition to crimes at both dockets, the docket number of
the fraud case was handwritten on his petition in different handwriting,
ostensibly by a clerk in the filing office. Because it appears that Appellant
intended the petition to be filed at both dockets, and the clerk filed his
petition only in the fraud case and neglected to file it in the arson case, we
conclude there was a breakdown in the judicial system, and we will treat his
pro se petition as having been filed at both dockets. Cf. Commonwealth v.
Braykovich, 664 A.2d 133, 138 (Pa. Super. 1995) (holding that court may
consider untimely-filed notice of appeal when clerk of courts interfered and
caused a breakdown in the processes of the court).
2 Oddly, despite there being no request to withdraw, the PCRA court’s
August 23, 2018 orders stated that Appellant’s attorney was withdrawn. On
August 27, 2018, Appellant filed pro se a notice of appeal, which was
docketed in this Court at 2612 EDA 2018. Meanwhile, on August 30, 2018,
the PCRA court corrected its error, and re-appointed Attorney Kimble.
Attorney Kimble then filed a praecipe to discontinue the appeal at 2612 EDA
2018, stating that it was duplicative of the instant appeal. On October 31,
2018, this Court discontinued the appeal at 2612 EDA 2018.
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On September 6, 2018, Attorney Kimble timely filed a notice of appeal
on Appellant’s behalf.3 Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925. Thereafter, Attorney Kimble sought from this Court leave to
withdraw his representation of Appellant pursuant to Turner/Finley.
Appellant has not responded to Attorney Kimble’s petition to withdraw.
Before we may address the potential merit of Appellant’s claims, we
must determine if counsel has complied with the technical requirements of
Turner and Finley.
3 We note that the notices of appeal in the fraud case and arson case each
list both docket numbers in the caption, but bear an independent time stamp
with a different time of day. Despite the separate notices of appeal, this
Court assigned only one appellate docket number, 2641 EDA 2018.
On June 12, 2019, this Court issued an order directing Appellant to show
cause why his appeal should not be quashed pursuant to Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018) (holding that notices of appeal filed
after June 1, 2018 must be quashed if the appellant fails to file separate
notices of appeal from a single order resolving issues arising on more than
one lower court docket). After Appellant responded, this Court discharged
the rule to show cause and referred the issue to this panel.
In reviewing this issue, we observe that the PCRA court issued separate
orders at each docket, and a notice of appeal appears at each docket. The
independent time stamps indicate that Appellant filed two separate notices
of appeal in compliance with Walker and Pa.R.A.P. 341. See
Commonwealth v. Rebecca Johnson, 236 A.3d 63, 66 (Pa. Super. 2020)
(en banc) (determining that time stamps in different locations and/or
different times of day indicate that separate notices of appeal were filed).
Moreover, there is no need to quash this appeal simply because Appellant
listed both docket numbers on each notice of appeal. See Commonwealth
v. Jerome Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (en banc)
(“We should not invalidate an otherwise timely appeal based on the inclusion
of multiple docket numbers, a practice that the Rules [of Appellate
Procedure] themselves do not expressly forbid.”).
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… Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of
the “no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the
merits of the underlying claims but, rather, will merely deny
counsel’s request to withdraw. Upon doing so, the court will
then take appropriate steps, such as directing counsel to file a
proper Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of Turner/Finley,
the court—trial court or this Court—must then conduct its own
review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if the claims
appear to have merit, the court will deny counsel’s request and
grant relief, or at least instruct counsel to file an advocate’s
brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).
We are satisfied that counsel has substantially complied with the
technical requirements of Turner and Finley. Therefore, we conduct our
own review of the merits.
According to counsel, Appellant desires appellate review of the
following two issues.
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A. The … PCRA [c]ourt erred by denying relief on Appellant’s
claim that the sentence imposed [in the fraud case] was illegal
because it exceeded the legal maximum when the time Appellant
spent in custody is added to it.
B. The … PCRA [c]ourt erred by denying relief on Appellant’s
claim alleging that [violation of probation (VOP)] counsel was
ineffective for failing to discuss with [Appellant] the pros and
cons of filing a post-sentence motion and for failing to file a
post-sentence motion asserting that the sentencing court
committed an abuse of discretion by imposing sentences of
incarceration for technical violations of probation given that the
record did not support the imposition of a sentence of three to
six years’ incarceration.
Turner/Finley Letter, 6/4/2019, at 5 (unnecessary capitalization omitted).
On review of orders denying PCRA relief, our standard is to determine
whether the PCRA court’s ruling is free of legal error and supported by the
record. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.
2017) (citation omitted).
Appellant’s first issue concerns the legality of his sentence. According
to counsel, Appellant asserts that his sentence of three to six years of
incarceration imposed in the fraud case is illegal because it exceeds the
maximum penalty for insurance fraud, which is seven years,4 once his time
served is factored in. Turner/Finley Letter at 6.
4 Appellant is correct that the maximum permissible sentence of
incarceration for insurance fraud is seven years. See 18 Pa.C.S. § 4117(d)
(grading insurance fraud pursuant to subsection 4117(a) as felony of third
degree); id. at § 1103(3) (providing for a maximum sentence of not more
than seven years for a felony of the third degree).
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The PCRA provides relief for the “imposition of a sentence greater than
the lawful maximum.” 42 Pa.C.S. § 9543(a)(2)(vii). “A challenge to the trial
court’s failure to award credit for time served prior to sentencing involves
the legality of a sentence.” Commonwealth v. Johnson, 967 A.2d 1001,
1003 (Pa. Super. 2009). The legality of a sentence is subject to review
under the PCRA if there is a timely-filed petition. Commonwealth v.
DiMatteo, 177 A.3d 182, 192 (Pa. 2018). “Issues relating to the legality of
a sentence are questions of law. As with all questions of law on appeal, our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (internal
citations and quotation marks omitted).
In the instant case, Appellant was detained for a violation of his parole
in the arson case in March 2016, resulting in revocation of his probation in
the fraud case in June 2016, re-sentencing, and parole to house arrest. He
was detained again in September 2016, for violating the terms of his house
arrest, resulting in the revocation of his probation and parole at both dockets
and re-sentencing in December 2016, to concurrent terms of three to six
years of incarceration.
Appellant served 206 days between each detainer and the subsequent
parole/probation revocation hearing and re-sentencing (i.e., March to June
2016 and September to December 2016), but the trial court properly and
explicitly awarded him credit for that time at each re-sentencing. See Order
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of Sentence (fraud case), 6/21/2016, at 1; Order of Sentence (fraud case),
12/14/2016, at 1; see also 42 Pa.C.S. § 9760(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.”).
Thus, the time he says was added to his sentence was actually credited to
his sentence.5
Furthermore, to the extent Appellant is arguing that he should have
received credit for the time spent on house arrest, this claim has no merit.
See Commonwealth v. Kyle, 874 A.2d 12, 18 (Pa. 2005) (holding the
defendant was not entitled to credit for time spent on release pending
appeal subject to electronic home monitoring because, under section 9760,
“in custody” means “time spent in an institutional setting”). Similarly,
Appellant is not entitled to a credit for time spent on probation. See
Commonwealth v. Infante, 63 A.3d 358, 367 (Pa. Super. 2013) (“In the
context of sentencing after probation revocation, the court must give due
consideration to the time the defendant has spent serving probation, but the
court is not required to credit the defendant with any time spent on
5 Even if that were not the case, the 206 days at issue would not bring the
total sentence of incarceration over seven years.
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probation.”). Thus, we agree with counsel that there is no merit to
Appellant’s illegal sentencing claim.
Appellant next claims that counsel rendered ineffective assistance by
failing to consult with him about the possibility of filing a post-sentence
motion to challenge the probation-revocation sentence and failing to file a
motion challenging the discretionary aspects of his sentence.
Turner/Finley Letter at 9-12. In his brief in support of his amended PCRA
petition, Appellant argued to the PCRA court that his sentence was “grossly
disproportionate” to the “minor” and “technical” violations of probation he
committed. Brief in Support of Amended PCRA Petition, 3/9/2018, at 5
(numbering supplied). He contended the trial court’s determination that he
was a threat to society was not supported by the record, and the trial court
overemphasized his original crime of arson and did not consider the ways in
which he had rehabilitated himself. Id. at 2-12. Appellant claimed his case
was akin to Commonwealth v. Parlente, 823 A.2d 927 (Pa. Super. 2003),
where this Court reversed a four-to-eight-years’ incarceration sentence due
to technical probation violations as manifestly unreasonable. Brief in
Support of Amended PCRA Petition, 3/9/2018, at 7.
We use the following standard to evaluate ineffective assistance of
counsel claims.
It is well-established that counsel is presumed to
have provided effective representation unless the
PCRA petitioner pleads and proves all of the
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following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction
lacked any objectively reasonable basis designed to
effectuate his client’s interest; and (3) prejudice, to
the effect that there was a reasonable probability of
a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations omitted). Appellant is required to plead and prove actual
prejudice on a failure-to-consult claim and a failure-to-file claim regarding a
post-sentence motion. See Commonwealth v. Reaves, 923 A.2d 1119,
1130 (Pa. 2007) (holding that unlike the failure to file a requested appeal,
where prejudice is presumed, the failure to file a requested post-sentence
motion requires a showing of actual prejudice). Prejudice in this context
requires a showing that the post-sentence motion would have led to a
reduction in the sentence, not that counsel’s inaction negatively impacted a
subsequent appeal by failing to preserve issues. Id. at 1131-32.
In the instant case, the record indicates that this was the second time
Appellant’s probation was revoked, and while he was on house arrest, which
was part of the sentence he received after the first revocation, he
impermissibly left the home multiple times. In other words, while his
violations might be technical because he did not commit a new crime, they
were not minor. The record of the sentencing hearing indicates that the trial
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court reviewed a pre-sentence investigation (PSI) report, and summarized
on the record the salient points from Appellant’s history, demonstrating that
contrary to Appellant’s claim, the trial court did consider the factors
Appellant claims it did not. Moreover, unlike Parlente, which involved
probation for non-violent crimes and subsequent revocation for only minor
technical violations, Appellant was on probation for crimes that pose a
danger to society, including arson, burglary, and REAP, and he failed to
follow the terms of his house arrest.
Under these circumstances, the trial court was within its discretion and
statutory authority to re-sentence Appellant to three to six years of
incarceration for arson, burglary, and REAP, to run concurrently with the
same sentence for insurance fraud. Appellant’s failure to abide by his house
arrest while on probation and parole for a violent crime signaled to the court
that it was likely that he would commit a crime if he was not imprisoned, not
to mention that the sentence was essential to vindicate the authority of the
court as it was Appellant’s second revocation. See 42 Pa.C.S. § 9771(c)(2),
(3) (permitting a court to revoke probation and sentence to total
incarceration when “the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not imprisoned” or “such a
sentence is essential to vindicate the authority of the court”). As such,
Appellant’s claim that counsel was ineffective for failing to consult with him
and file a post-sentence motion fails for lack of merit and his inability to
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prove that he was prejudiced. Accordingly, we affirm the PCRA court’s
orders dismissing his PCRA petition, and grant counsel’s petition to
withdraw.
Orders affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2020
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