J-S31045-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TROY FLANAGAN, :
:
Appellant : No. 1749 MDA 2015
Appeal from the Judgment of Sentence September 23, 2015
in the Court of Common Pleas of Columbia County
Criminal Division at No(s): CP-19-CR-0000463-1999
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 27, 2016
Troy Flanagan (Appellant) appeals from the judgment of sentence of
one to four years of incarceration, which was entered after the revocation of
his probation. We affirm.
A prior panel of court summarized the lengthy and tortuous procedural
history of this case as follows.
Appellant was arrested on May 17, 1999, and charged with
robbery and criminal conspiracy to commit robbery. On
September 25, 2000, Appellant [pled] guilty to these charges
pursuant to a plea agreement with the Commonwealth. Under
the terms of the agreement, the Commonwealth agreed to
recommend a sentence with a minimum of not less than five
years’ imprisonment.
***
The [trial court] indicated that it would likely agree with the plea
agreement…. At the conclusion of the hearing, the [trial court]
accepted the guilty plea and scheduled sentencing.
*Retired Senior Judge assigned to the Superior Court.
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Prior to sentencing, Appellant retained the services of
Joseph Devecka, Esquire, who moved to withdraw Appellant’s
guilty plea after discussing the matter with Appellant and
receiving his consent to do so. Appellant contends that Attorney
Devecka assured him the maximum minimum-sentence he
would receive would be five years. On January 18, 2001, the
court accepted Appellant’s plea withdrawal and entered a plea of
not guilty. At trial, Appellant was convicted of robbery and
conspiracy to commit robbery. [On February 26, 2001, h]e was
sentenced to 140 to 360 months’ imprisonment. [That sentence
was comprised of 80 to 240 months’ incarceration for robbery
and 60 to 120 months’ incarceration for conspiracy to be served
consecutively.]
On June 13, 2002, [the Superior Court] vacated
Appellant’s sentence due to a misapplication of the sentencing
guidelines’ deadly weapon enhancement. Commonwealth v.
Flanagan, [806 A.2d 459] (unpublished memorandum) (Pa.
Super. 2002). “Appellant only assisted the robbery and disposed
of the gun used in the robbery, but his co-conspirator actually
entered the store and took the money at gunpoint.” Id. at 1 n.
1. Upon resentencing on September 9, 2002, Appellant was
sentenced to not less than 132 months’ or more than 360
months’ imprisonment. On a subsequent direct appeal, [the
Superior Court] affirmed the trial court on June 27, 2003.
Commonwaelth v. Flanagan, [830 A.2d 1045] (unpublished
memorandum) (Pa. Super. 2003). Thereafter, Appellant did not
petition our Supreme Court for allowance of appeal; rather,
Appellant filed a timely PCRA petition on July 31, 2003.
Commonwealth v. Flanagan, 981 A.2d 918 (Pa. Super. 2009)
(unpublished memorandum at 1-3).
In that petition, Appellant argued that his sentence was illegal because
robbery and conspiracy to commit robbery should merge for sentencing
purposes. Appellant also argued that trial counsel was ineffective in advising
him to withdraw his guilty plea. The PCRA court denied relief, and Appellant
appealed to this Court.
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On appeal, this Court concluded that being sentenced on both robbery
and conspiracy to commit robbery did not render the sentence illegal.
However, this Court also held that the PCRA court erred in the way it
conducted its ineffective-assistance-of-counsel analysis. Thus, it vacated the
PCRA court’s order, and directed the PCRA court to analyze properly
“Appellant’s layered claim of ineffectiveness.” Id. at 13.
On August 18, 2010, the PCRA court granted Appellant a new trial.
Prior to trial, the Commonwealth and Appellant entered into a negotiated
plea agreement. Pursuant to this plea agreement, on February 18, 2011,
Appellant was sentenced to eight to sixteen years’ incarceration on both
counts, to run concurrently, with a credit for ten years and 144 days
served.1 At the hearing, the Commonwealth also represented that it was
“not going to make any recommendation to the parole board nor try to
influence them in any way.” N.T., 2/18/2011, at 19.
After Appellant’s hearing before the parole board, Appellant was
denied release based, in part, on a negative recommendation by the
prosecuting attorney. Appellant timely filed a PCRA petition alleging that the
Commonwealth failed to adhere to the terms of the plea agreement by
interfering with Appellant’s right to parole. Counsel was appointed, and the
PCRA court permitted Appellant to withdraw his guilty plea. Specifically, the
1
Appellant was incarcerated on this case from May 17, 1999 through July
27, 1999, and then again from January 19, 2001, through February 18,
2011.
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PCRA court concluded that the prosecuting attorney’s negative
recommendation was a breach of the plea agreement.
On August 28, 2012, Appellant and the Commonwealth entered into
another negotiated guilty plea. Pursuant to the agreement, Appellant was
sentenced to six to twelve years of incarceration on the robbery charge. He
had already served 11 years, nine months, and 20 days, so he was only two
months and ten days shy of his maximum. He also agreed to a consecutive
period of four years of probation on the conspiracy charge. Furthermore,
the agreement provided that if Appellant should violate the terms of his
probation, he could receive no more than four years of incarceration for that
violation.
Appellant was released from prison on November 7, 2012, after
serving twelve years of incarceration. Thereafter, on April 22, 2015, and
June 8, 2015, Appellant was charged with retail theft. Additionally, he went
to Florida in violation of the terms of probation. Accordingly, he appeared
on September 10, 2015, before the revocation court. Appellant’s probation
was revoked, and he was sentenced, consistent with the prior plea
agreement, to one to four years of incarceration.
Appellant timely filed a post-sentence motion, which was denied by the
revocation court. Appellant timely filed a notice of appeal. Both Appellant
and the revocation court complied with Pa.R.A.P. 1925.
On appeal, Appellant sets forth two issues for our review.
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A. The [revocation court] erred in sentencing [Appellant] on
September 10, 2015 by failing to grant him a time credit for the
time served on his original sentence in connection with his
conviction for the conspiracy offense.
B. That on August 29, 2012 at a re-sentencing, [Appellant’s]
waiver of his right to the credit for time on the above captioned
case was not knowing, voluntary or intelligent.
Appellant’s Brief at 4 (suggested answers omitted).
In considering Appellant’s issues, we bear in in mind the following.
This case implicates a number of legal principles, the first
of which is: Following probation violation proceedings, this
Court’s scope of review is limited to verifying the validity of the
proceeding and the legality of the sentence imposed. The
defendant or the Commonwealth may appeal as of right the
legality of the sentence. As long as the reviewing court has
jurisdiction, a challenge to the legality of the sentence is non-
waivable and the court can even raise and address it sua sponte.
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).2
Appellant first argues that he was not credited properly for his time
served. “A challenge to the trial court’s failure to award credit for time
served prior to sentencing involves the legality of a sentence.”
2
In Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013),
we held that “this Court's scope of review in an appeal from a revocation
sentencing [also] includes discretionary sentencing challenges.” However,
Appellant has not challenged the discretionary aspects of his sentence in this
case.
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Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). The
governing statute provides the following.
(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.
***
(3) If the defendant is serving multiple sentences, and if one of
the sentences is set aside as the result of direct or collateral
attack, credit against the maximum and any minimum term of
the remaining sentences shall be given for all time served in
relation to the sentence set aside since the commission of the
offenses on which the sentences were based.
42 Pa.C.S. § 9760.
Specifically, Appellant contends that “on November 7, 2006,
[Appellant] satisfied the 6 year minimum component of his sentence for the
[r]obbery offense. He then simultaneously began to serve the five year
minimum component of his consecutive sentence for the [c]onspiracy
offense until the time of his first new trial on February 18, 2011, which
represents 4 years and 103 days[.]” Appellant’s Brief at 10. Appellant
suggests that this period of time should be credited to his current revocation
sentence, and he should be released from prison.
First, we observe that Appellant is referring to his February 26, 2001
sentence, which was vacated by this Court. “The term ‘vacate’ means ‘To
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nullify or cancel; make void; invalidate .
Cf. overrule.’ Black’s Law Dictionary 1584 (8th ed. 2004). When the original
sentence was vacated, the sentence was rendered a legal nullity[.]”
Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007). Accordingly,
Appellant may not now make any claim with respect to that sentence.
Furthermore, even if Appellant’s sentence was not a nullity, “[p]ursuant to
Pennsylvania law, the maximum term represents the sentence imposed for a
criminal offense, with the minimum term merely setting the date after which
a prisoner may be paroled.” Martin v. Pennsylvania Bd. of Prob. &
Parole, 840 A.2d 299, 302 (Pa. 2003). Thus, Appellant has not convinced
this Court, based upon the aforementioned logic, that he has served four
years and 103 days of incarceration for the offense of conspiracy to commit
robbery.
However, even if this were true, there is no requirement that he
receive credit for that time served towards his new sentence, because the
revocation sentence of one to four years of incarceration would not create an
illegal sentence. With respect to a sentence following the revocation of
probation, “a defendant [is not] automatically granted credit for time served
while incarcerated on the original sentence unless the court imposes a new
sentence that would result in the defendant serving time in prison in excess
of the statutory maximum.” Commonwealth v. Crump, 995 A.2d 1280,
1284 (Pa. Super. 2010). Appellant recognizes that the statutory maximum
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sentence for his conspiracy conviction is 20 years’ incarceration. Appellant’s
Brief at 15. Accordingly, even if these four years spent in prison had been
for the conspiracy conviction, the addition of his one-to-four-year revocation
sentence would result only in a total of eight years of incarceration, still
below the statutory maximum. Thus, the sentence imposed on Appellant on
September 10, 2015 is clearly not illegal.
Appellant next argues that if the revocation court “did sentence him
legally then in the alternative [Appellant] should be permitted to withdraw
his guilty plea[.]” Appellant’s Brief at 17. It is well-settled that “[w]here an
appellant fails to challenge his guilty plea in the trial court, he may not do so
on appeal. In order to preserve an issue related to the guilty plea, an
appellant must either object [] at the sentence colloquy or otherwise rais[e]
the issue at the sentencing hearing or through a post-sentence motion.”
Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006)
(internal citations and quotation marks omitted).
Instantly, following the September 10, 2015 sentence on the
revocation of probation, Appellant did not challenge the knowing and
voluntary nature of his August 29, 2012 guilty plea either at sentencing or in
his post-sentence motion. Thus, this issue is waived.
Moreover, even had Appellant not waived this issue on that basis, he
also did not file a post-sentence motion or notice of appeal from the August
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29, 2012 judgment of sentence. At that hearing, the trial court explained
the provisions of the agreement on the record.
[Trial Court:] And I already indicated for the Court the potential
plea agreement is a six to 12 year sentence on count one and a
four-year consecutive 48 months of probation on count two, the
criminal conspiracy. Do you understand the terms of the plea
agreement?
[Appellant:] Yes.
***
[Trial Court:] And there is a plea negotiation here, it’s set forth
on the plea agreement that you’ve signed. [The prosecutor] has
outlined it for me earlier, that you would get six to 12 years on
the robbery and the conspiracy would be a consecutive four-year
supervised probation with the understanding that if you violate
it, the cap would be four years but you could still spend four
more years if you violate it, do you understand that?
[Appellant:] Yes, Your Honor.
[Trial Court:] And knowing all that, you still wish to plead guilty.
[Appellant:] Yes, Your Honor.
N.T., 8/29/2012, at 6-10.
Thus, to the extent Appellant had a different understanding of that
agreement, and wished to challenge the knowing and voluntary nature of his
guilty plea, such a challenge had to be presented in a post-sentence motion
following the August 29, 2012 judgment of sentence. Appellant did not do
so and cannot remedy that failure now.
Based on the foregoing, we affirm the September 10, 2015 judgment
of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2016
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