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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWIN COLON-RODRIGUEZ,
Appellant No. 129 MDA 2016
Appeal from the Judgment of Sentence December 2, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004476-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 24, 2016
Edwin Colon Rodriguez (“Appellant”) appeals from the judgment of
sentence entered in the Court of Common Pleas of Berks County after
Appellant entered a negotiated guilty plea of not less than five years, nor
more than ten years’ incarceration on two counts of Possession with Intent
to Deliver a Controlled Substance, Criminal Conspiracy to Deliver a
Controlled Substance, Possession of Firearms Prohibited, and Possession of a
Firearm with Manufacture Number Altered or Obliterated. Appellant
contends the trial court’s refusal to award him time credit toward his
sentence renders his sentence illegal. Additionally, Appellant's court-
appointed counsel, Jay M. Nigrini, Esquire, has filed an application to
withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa.2009). We affirm the
judgment of sentence and grant counsel's petition to withdraw.
*Former Justice specially assigned to the Superior Court.
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As noted, Attorney Nigrini has requested to withdraw and has
submitted an Anders brief in support thereof contending that Appellant's
appeal is frivolous. The Pennsylvania Supreme Court has articulated the
procedure to be followed when court-appointed counsel seeks to withdraw
from representing an appellant on direct appeal:
[I]n the Anders brief that accompanies court-appointed counsel's
petition to withdraw, counsel must: (1) provide a summary of
the procedural history and facts, with citations to the record; (2)
refer to anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel's conclusion that the
appeal is frivolous; and (4) state counsel's reasons for
concluding that the appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is
frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel's
petition and brief satisfy Anders, we will then undertake our own review of
the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we
will grant the withdrawal petition and affirm the judgment of sentence. If,
however, there are non-frivolous issues, we will deny the petition and
remand for the filing of an advocate's brief. Commonwealth v. Wrecks,
931 A.2d 717, 720–21 (Pa.Super. 2007) (citations omitted).
Counsel has substantially complied with the technical requirements of
Anders as articulated in Santiago. Additionally, counsel confirms that he
sent a copy of the Anders brief to Appellant, as well as a letter explaining
that Appellant has the right to proceed pro se or the right to retain new
counsel. Counsel has appropriately appended a copy of the letter to the
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motion to withdraw, as required by this Court's decision in Commonwealth
v. Millisock, 873 A.2d 748 (Pa.Super. 2005). See also Commonwealth v.
Daniels, 999 A.2d 599, 594 (Pa.Super. 2010). Appellant has not filed a
response to the petition.
We now proceed to examine the issue counsel sets forth in the Anders
brief:
Whether the trial court erred in failing to give credit for time
served from the date secured bail was set on September 15,
2014, until the date of his plea and sentence on December 2,
2015, as the Appellant was never released from custody?
Appellant’s Anders brief at 5.
With this claim, Appellant challenges the legality of his sentence. See
Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.Super. 2014) (recognizing
a claim based upon the failure to give credit for time served as a challenge
to the legality of a sentence). In raising this issue, however, he
acknowledges that he was charged for his offenses in two separate cases
with different docket numbers and received credit for the pre-trial detention
time served in the other case.
Sentencing credit for time served is provided for pursuant to 42
Pa.C.S.A. § 9760, which states, in pertinent part, 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.
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***
(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.A. § 9760(1) (emphasis added).
“This Court has held that a defendant is not entitled to ‘receiv[e] credit
against more than one sentence for the same time served.’”
Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa.Super. 2014)
(quoting Commonwealth v. Merigis, 681 A.2d 194, 195 (Pa.Super.
1994)). In that vein, it is well-settled that a defendant shall be given credit
for any days spent in custody prior to the imposition of sentence, but only if
such commitment is on the offense for which sentence is imposed. See
Commonwealth v. Clark, 885 A.2d 1030, 1034 (Pa.Super. 2005). Credit
is not given, however, for a commitment by reason of a separate and
distinct offense. See Commonwealth v. Miller, 655 A.2d 1000, 1002
(Pa.Super. 1995).
In light of such authority, we agree with the trial court and appellate
counsel that Appellant’s claim is frivolous. Accordingly, we affirm judgment
of sentence and grant counsel’s petition to withdraw.
Judgment of Sentence is AFFIRMED. Petition to Withdraw as Counsel
is GRANTED.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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