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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT MINOR :
:
Appellant : No. 600 WDA 2021
Appeal from the PCRA Order Entered May 11, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No: CP-02-CR-0013630-2016
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: MARCH 22, 2022
Appellant, Robert Minor, appeals from the order of the Court of Common
Pleas of Allegheny County, entered May 11, 2021, that dismissed his first
petition filed under the Post Conviction Relief Act (PCRA)1 without a hearing.
We affirm.
The facts underlying Appellant’s conviction are summarized in this
Court’s memorandum at Appellant’s direct appeal. See Commonwealth v.
Minor, No. 385 WDA 2018 (Pa. Super. June 19, 2019) (unpublished
memorandum). The facts underlying this appeal are not in dispute. Briefly,
Appellant's conviction arose out of an incident in which he and
others fired over a dozen shots at the vehicle of the victim, Sonya
Thomas, while she was trying to park. The incident occurred
about 10:30 PM on July 30, 2016.[] Thomas was acquainted with
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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Appellant and all but one of his co-conspirators, so she could
identify them.
The jury convicted Appellant of conspiracy to commit aggravated
assault (18 Pa.C.S.A. § 903), criminal mischief (18 Pa.C.S.A. §
3304(a)(5)), simple assault (18 Pa.C.S.A. § 2701(a)(1)), and
recklessly endangering another person (18 Pa.C.S.A. § 2705.[]
The trial court imposed an aggregate sentence of not less than
two and one-half years of incarceration nor more than five years
of incarceration, followed by four years of probation.
Id. (citations to the record omitted).
Relevant to this appeal, Appellant was on probation at No. CP-02-CR-
10073-2012 when he committed and was arrested for the crime underlying
this appeal at No. CP-02-CR-0013630-2016. See Docket No. CP-02-CR-
10073-2012; Rule 907 Notice, at 2. A detainer was issued for Appellant at
No. CP-02-CR-10073-2012 based on his arrest for the crime at No. CP-02-CR-
0013630-2016. Rule 907 Notice, at 2. Appellant remained in custody from
October 13, 2016 until January 23, 2018, the day of his sentencing hearing.
Id. At Appellant’s sentencing hearing on January 23, 2018, the trial court
sentenced Appellant at this case, No. CP-02-CR-0013630-2016, and at No.
CP-02-CR-10073-2012. See N.T. Sentencing, 1/23/18, generally. The trial
court applied the credit for time served from October 13, 2016 to January 23,
2018 to Appellant’s case at No. CP-02-CR-10073-2012 and closed interest in
that case. Id., at 24.
Appellant filed a direct appeal from his judgment of sentence in this case
and this Court affirmed his judgment of sentence. See Minor, No. 385 WDA
2018. Appellant did not file an application for appeal to the Supreme Court of
Pennsylvania. On June 1, 2020, Appellant filed a pro se request and asked
that the credit for the time he served in custody be applied to this case at No.
CP-02-CR-0013630-2016. PCRA petition, 6/1/20. The trial court considered
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the request a first, timely PCRA petition and appointed counsel to represent
Appellant. Order, 9/30/20. The PCRA court ordered PCRA counsel to file an
amended petition within 90 of days of the date of the order. Id. On December
30, 2020, PCRA counsel filed an amended PCRA petition and argued that the
trial court erred in failing to give Appellant credit for the time he served in
custody awaiting trial for this case. Amended PCRA petition, 12/30/20.
On May 11, 2021, the PCRA court entered a notice of intent to dismiss
all claims without a hearing pursuant to Pa.R.Crim.P. 907. Rule 907 Notice,
5/11/21. The PCRA court stated that it did award Appellant time credit for the
time Appellant spent in custody, the time credit was awarded at Appellant's
case at No. CP-02-CR-10073-2012. Id. Appellant filed a timely response and
argued that the trial court has discretion to “award that time toward the
underlying sentence in this case, as well.” Objections to Rule 907 Notice,
5/7/21. On May 11, 2021, the PCRA court dismissed Appellant’s petition. On
May 12, 2021 Appellant filed this timely appeal.2
Appellant presents the following issue for our review:
The PCRA Court erred in denying relief, because [Appellant] did
not receive proper credit for time served, resulting in an illegal
sentence.
Appellant’s Brief, at 4.
In reviewing an appeal from the denial of PCRA relief, “this Court is
limited to ascertaining whether the evidence supports the determination of
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2 Appellant filed a timely statement of errors complained of on appeal on May
26, 2021. The PCRA court entered its opinion pursuant to Rule 1925(a) on
May 26, 2021 and directed this Court to its Rule 907 Notice, as it sets forth
the PCRA court’s reasons for issuing the order appealed from.
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the PCRA court and whether the ruling is free of legal error.” Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).
Our scope of review is limited to the PCRA court's factual findings
and the evidence of record. We grant great deference to the PCRA
court and will not disturb findings supported by the certified
record.
Commonwealth v. Fowler, 930 A.2d 586, 590–91 (Pa. Super. 2007)
(citations omitted).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Furgess, 149 A.3d 90, 92 (Pa. Super. 2016) (citation
omitted). Generally, a petition for relief under the PCRA, including a second
or subsequent petition, must be filed within one year of the date the judgment
of sentence is final, unless the petition alleges and the petitioner proves one
of the three exceptions to the time limitations for filing the petition set forth
in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).3 Any petition
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3 The three exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of interference by
government officials with the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the Constitution or laws of the
United States;
(ii) the facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that was recognized by the
Supreme Court of the United States or the Supreme Court of Pennsylvania
after the time period provided in this section and has been held by that court
to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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attempting to invoke these exceptions “shall be filed within one year of the
date the claim could have been presented.” Id. § 9545(b)(2).
Appellant did not file a petition for allowance of appeal to the Supreme
Court of Pennsylvania. Appellant’s judgment of sentence became final on July
19, 2019, thirty days after this Court affirmed the judgment of sentence on
June 19, 2019. See Pa.R.A.P. 1113. Appellant had one year thereafter to file
a PCRA petition – i.e., until July 19, 2020. 42 Pa.C.S. § 9545(b)(1). Appellant
filed the current petition on June 1, 2020. The petition is timely.
Appellant argues that he was entitled to receive credit toward his
sentence at this case for the approximate 15 months he served pending his
jury trial and sentencing in this case. Appellant’s Brief, at 9. Appellant argues
that because the sentencing court did not award any time credit for time
served on this case, his sentence is illegal. Id., at 10. Appellant argues that
he remained in jail from October 13, 2016 until January 23, 2018 pending the
jury trial and sentencing in this case and he is entitled to receive credit for all
of that time he spent incarcerated prior to trial. Id., at 12. Appellant argues
that his arrest in this case triggered his jail stay and the trial court was
incorrect to credit the time he spent incarcerated to satisfy a detainer on an
unrelated case and to close interest in that case. Id. Appellant argues that
the time should have been credited toward the ultimate sentence in this case.
Id.
We note, “a court may entertain a challenge to the legality of the
sentence so long as the court has jurisdiction to hear the claim. In the PCRA
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context, jurisdiction is tied to the filing of a timely PCRA petition.” Fowler,
930 A.2d at 592 (citation omitted). We have established that the PCRA
petition is timely. Importantly, “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.” Id., at 595 (citation omitted).
We will, therefore, discuss the merits of Appellant’s claim.
In Pennsylvania, our legislature codified pre-trial credit for time served
as follows, in relevant part:
After reviewing the information submitted under section 9737
(relating to report of outstanding charges and sentences) the
court shall give credit 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.
42 Pa.C.S. § 9760 (1).
This Court’s decision in Commonwealth v. Smith, 853 A.2d 1020 (Pa.
Super. 2004) is instructive. In Smith, the appellant was arrested for violation
of the uniform firearm act and drug possession stemming from an incident
occurring on March 30, 2001. Id., at 1022. The appellant posted bail in that
case, however, a warrant was issued for appellant because appellant’s alleged
criminal activity on March 30, 2001 violated his current probation sentence.
Id., at 1023. The appellant was held in jail under the probation detainer
through his March 2002 trial on the charges arising out of the March 30, 2001
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arrest. Id. The appellant was found guilty of all counts relating to the March
30, 2001 incident and the trial court sentenced him to a period of
incarceration. Id., at 1022. The judge closed interest in the detainer matter
without further penalty to appellant. Id., at 1023. The appellant was not
given credit for the time he served in custody pursuant to the detainer on his
new incarceration sentence. This Court considered whether “the trial court
erred by not crediting [the appellant’s] sentence with the time that he was
incarcerated under a probation detainer lodged as a result of his criminal
activity.” Id., at 1022.
This Court discussed the Pennsylvania Supreme Court’s decision in
Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299
(Pa. 2005), which stated,
where an offender is incarcerated on both a Board detainer and
new criminal charges, all time spent in confinement must be
credited to either the new sentence or the original sentence.
Smith, 853 A.2d at 1025. Although Martin did not involve a probation
sentence, this Court found instructive that it addressed “equitable crediting of
pre-trial incarceration when that incarceration is attributable to more than one
set of offenses.” Smith, 853 A.2d at 1026. This Court then concluded,
“because [the appellant’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.” Id., at 1026.
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The PCRA court determined that Appellant’s claim lacks merit. The PCRA
court reasoned,
[t]he Defendant contends that he should be awarded credit for the
period he spent incarcerated between October 13, 2016 and
January 23, 2018. . . . While the Defendant accurately states that
the claimed period of credit was not applied to his 2016 case, the
reason why the Defendant did not receive credit for the period
between 10/13/16 and 1/23/18 at his 2016 case was because this
court applied that credit toward his probation detainer at CC No.
2012-10073 and closed interest in that case. Contrary to the
Defendant’s assertion, the Defendant’s 2012 case was very much
related to his 2016 case, because the 2016 case violated the
Defendant’s 2012 probation case.
As argued by the Commonwealth, the Smith case is instructive
because it makes clear that, in situations where a defendant’s
“pretrial incarceration is attributable to both his probation detainer
and the new criminal charges” any time credit must be applied “to
either the sentence under the new criminal charges or to a
sentence imposed for violation of probation.” Commonwealth v.
Smith, 853 A.2d 1020, 1026 (Pa. Super. 2004) (emphasis
added); see also Martin v. Pennsylvania Board of Probation
and Parole, 840 A.2d 299, 309 (Pa. 2003) (“[W]e hold that,
where an offender is incarcerated on both a Board detainer and
new criminal charges, all time spent in confinement must be
credited to either the new sentence or the original sentence.”)[.]
Against this backdrop, the Defendant’s time-credit claim clearly
lacks merit because the credit for the time that the Defendant
served between 10/13/16 and 1/23/18 was fully accounted for
when it was applied to his probation violation sentence at CC No.
2012-10073, which was imposed on the same day of his
sentencing for his 2016 case[.]
According, the Defendant received full credit for his pretrial
incarceration and he does not cite to any legal authority in support
of his claimed entitlement to double credit.
Rule 907 Notice, 5/11/21, at 2-3 (citations to the record omitted).
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At the Appellant’s sentencing hearing on January 23, 2018, the trial
court stated,
[w]hat we are going to do is we are going to deal with the detainer
at CC 201210073. What we are going to do on that detainer is
you have credit for time served at that case from 10-13 of ‘16
through today. I will take all of that credit, and I will close interest
in that case, meaning that that case is now totally finished. You
are done with it. Okay. It also means that there is no credit left
available. You should be aware I don’t give double credit.
N.T. Sentencing, 1/23/18, at 24.
There is no dispute that the trial court must give Appellant credit for the
time served from October 13, 2016 to January 23, 2018. See 42 Pa.C.S. §
9760 (1). Appellant admitted that he was given credit for the time he spent
in custody. See Appellant’s Brief, at 9 (stating that the trial court “took all
time served from October 13, 2016 up to sentencing on this case on January
23, 2018, and closed interest on an unrelated case at CP-02-CR-10073-2012);
Objection to Rule 907 Notice, 5/7/21 (Appellant argued that “[a]lthough [the
trial court] awarded time credit at CP-02-CR-10073-2012 before closing
interest on that case, the Court has the discretion to award that time toward
the underlying sentence in this case, as well.”).
Appellant’s sole contention, that the trial court erred because it did not
give him credit for the time served from October 13, 2016 to January 23, 2018
at No. CP-02-CR-0013630-2016, is without merit. Appellant was in custody
from October 13, 2016 to January 23, 2018 because of a detainer lodged at
CP-02-CR-10073-2012 for violation of probation based on the criminal activity
that occurred in No. CP-02-CR-0013630-2016. Because the incarceration is
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attributable to both the 2012 case and 2016 case, the trial court must give
Appellant credit for the time he spent in custody on either case. Smith, 853
A.2d at 1026. Appellant was given credit for the time served from October
13, 2016 to January 23, 2018 at No. CP-02-CR-10073-2012, therefore,
Appellant’s issue on appeal is without merit. See N.T. Sentencing, 1/23/18,
at 24; Smith, 853 A.2d at 1026. Having discerned no error of law, we affirm
the order below. See Andrews, 158 A.3d at 1263.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/22/2022
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