J-S79007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VENIECE QUEEN
Appellant No. 769 EDA 2016
Appeal from the Judgment of Sentence February 9, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001172-2002
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VENIECE QUEEN
Appellant No. 770 EDA 2016
Appeal from the Judgment of Sentence February 9, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001173-2002
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VENIECE QUEEN
Appellant No. 771 EDA 2016
Appeal from the Judgment of Sentence February 9, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001174-2002
J-S79007-16
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VENIECE QUEEN
Appellant No. 772 EDA 2016
Appeal from the Judgment of Sentence February 9, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001435-2002
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 30, 2016
Appellant, Veniece Queen, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following
revocation of her probation. We vacate the judgment of sentence and
remand for resentencing.
The relevant facts and procedural history of this case are as follows.
On June 27, 2002 Appellant pled guilty at four separate dockets to three
counts of forgery and one count of false statements (to obtain assistance
and food stamps).1 On that same date, the court sentenced Appellant to
concurrent terms of two (2) years’ probation for each offense. Appellant’s
initial probation violation resulted in the issuance of a bench warrant on
November 21, 2002. Appellant absconded and was detained approximately
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1
18 Pa.C.S.A. § 4101(a)(1); 62 P.S. § 481(a).
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six years later. The court revoked Appellant’s probation on March 28, 2008,
and resentenced Appellant to concurrent terms of two (2) years’ probation
for each offense. Following additional probation violations, the court
revoked Appellant’s probation and re-imposed the same two-year
probationary sentence on March 26, 2010, and July 17, 2015. In September
2015, Appellant admitted to another technical violation of her probation.
The court issued a bench warrant, and Appellant was detained on December
9, 2015. On February 9, 2016, the court held a Gagnon II2 hearing,
revoked Appellant’s probation at all dockets, and resentenced her to
concurrent terms of six (6) to twenty-four (24) months’ incarceration for
each offense. Appellant filed timely notices of appeal in each case on March
9, 2016. The court ordered Appellant to file concise statements of errors
complained of on appeal per Pa.R.A.P. 1925(b). In lieu of concise
statements, Attorney Connors filed a Rule 1925(c)(4) statement of intent to
file an Anders3 brief in each case. This Court subsequently consolidated all
four cases on appeal. Attorney Foltz then entered his appearance and filed a
merits brief.
Appellant raises one issue for our review:
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2
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973).
3
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).
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DID THE TRIAL COURT ERR IN SENTENCING [APPELLANT]
TO SIX TO TWENTY FOUR MONTHS[’] INCARCERATION
FROM THE DATE OF SENTENCING WITHOUT GIVING
CREDIT FOR TIME SERVED FOR THE SIXTY DAYS
INCARCERATED PRIOR TO THE SENTENCING HEARING
FOR THE VIOLATION OF HER PROBATION?
(Appellant’s Brief at 5).
Preliminarily, any issue not raised in a Rule 1925(b) statement is
generally waived for appellate review. Commonwealth v. Castillo, 585 Pa.
395, 888 A.2d 775 (2005). Here, revocation counsel filed Rule 1925(c)(4)
statements of intent to file an Anders brief in response to the court’s Rule
1925(b) order, so the court did not issue a Rule 1925(a) opinion addressing
any potential issues for appeal. Despite the Rule 1925(c)(4) statements,
when appellate counsel subsequently entered his appearance, he filed a
merits brief. A merits brief, however, required a Rule 1925(b) statement to
preserve issues for appeal. Ordinarily, counsel’s failure to file a Rule
1925(b) statement would constitute per se ineffectiveness and could require
this Court to remand to allow counsel to file a proper concise statement nunc
pro tunc. See Pa.R.A.P. 1925(c)(3). Nevertheless, Appellant’s sole issue on
appeal is a non-waivable challenge to the legality of her sentence, so
remand is unnecessary. See Commonwealth v. Johnson, 967 A.2d 1001
(Pa.Super. 2009) (stating trial court’s failure to award credit for time served
implicates legality of sentence); Commonwealth v. Bowser, 783 A.2d 348
(Pa.Super. 2001), appeal denied, 568 Pa. 733, 798 A.2d 1286 (2002)
(stating challenge to legality of sentence cannot be waived). Therefore, we
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will address the issue presented on appeal.
Appellant argues she had been incarcerated for sixty days on a
probation detainer prior to her new sentence for the current technical
violation of probation. Appellant asserts that sixty-day period of
incarceration related only to the probation violation. Appellant contends the
court failed to award her proper credit for time served on her probation
detainer. Appellant concludes this Court should vacate the judgment of
sentence and remand for resentencing. We agree.
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)
(en banc). Credit for time served is governed by the Sentencing Code in
relevant part as follows:
§ 9760. Credit for time served
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.A. § 9760(1). See also Gaito v. Pennsylvania Bd. of
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Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980) (stating
defendant is entitled to credit for time spent in custody on detainer lodged
by Board of Probation and Parole).
Instantly, following her most recent probation violation, Appellant
spent sixty (60) days incarcerated on the probation detainer awaiting the
revocation and resentencing hearing.4 The court revoked Appellant’s
probation and imposed concurrent terms of six to twenty-four months’
incarceration for each offense at four separate dockets, on the
recommendation of Appellant’s probation officer. Appellant was entitled to
credit for time served on the probation detainer. See id.; 42 Pa.C.S.A. §
9760(1). None of the sentencing orders, however, reflects that Appellant
was awarded any credit for time served.
At resentencing, the following exchange took place between the court,
Appellant, defense counsel and the probation officer:
THE COURT: I’m finding you in violation of your
probation on all these cases. And that’s revoked, I give
you a new sentence of 6 to 24 months served in a State
Correctional Institute, you got to submit—
[APPELLANT]: So, my time here doesn’t count?
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4
Appellant, the Commonwealth, and the trial court all agreed that Appellant
spent sixty days in custody on her probation detainer. The Gagnon II
hearing report, however, states Appellant was detained on December 9,
2015, which constitutes sixty-two (62) days, so the parties’ calculation of
Appellant’s presentence period of incarceration may be short by those two
days.
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THE COURT: Yeah, yeah, yeah, you’re getting
credit. Don’t you—wait a minute, no, you already got that
against your probation, right?
PROBATION OFFICER: I was asking to run it back—
THE COURT: Pardon me?
PROBATION OFFICER: I was asking just to run the
sentence back.
DEFENSE COUNSEL: Because she has 60 days.
[APPELLANT]: I’ve been here for 60 days.
THE COURT: Well, let me ask you a question,
she doesn’t get credit for those 60 against the six months,
or does she? No, I mean, was that factored into your
decision? Yeah, your back—your back time is reduced by
60 days in jail.[5]
[APPELLANT]: Okay.
THE COURT: But, they want you to serve six
months upstate and that’s what we’re doing.
[APPELLANT]: Okay. So, if that’s possible,
then my back time will be six months?
THE COURT: No, they want you to—six
months upstate, excuse me, six months upstate, excuse
me. Go ahead, agent.
[APPELLANT]: Yeah, but if I get 60 days, that’s
6 to 22 months, correct?
THE COURT: No, no, no, no—no, no, no, no,
the recommendation already takes the 60 days in and
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5
The court later acknowledged that it misspoke when it referred to “back
time,” as Appellant was resentenced for a probation violation as opposed to
a parole violation.
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gives you credit against your back time already. Now,
you’ve got less back time than you had when you went in,
am I right, agent?
[APPELLANT]: I had 24 months and I still have
24 months.
THE COURT: Do we take it off the back?
PROBATION OFFICER: No, Your Honor—
[APPELLANT]: No.
PROBATION OFFICER: —if you’re willing to grant that
time from the time she was incarcerated, then I would ask
for 8 to 24 months, I was going to [inaudible].
THE COURT: You see that, if I give you that
credit, he wants 8 to 24 months. So, I credit it against
your back time.
[APPELLANT]: I have two in, and I still have to
do six, correct?
THE COURT: Correct. Correct. He wants you
to do six months in and I do, too. So, I’m giving you 6 to
24 months, the credit does not apply against that 6 to 24
months, it’s applied against the—does it take it off her
back on the 24 months?
[APPELLANT]: No.
THE COURT: Is it 6 to 22 now?
PROBATION OFFICER: No, it’s 6 to 24.
THE COURT: 6 to 24. All right. Good
enough. So, it’s a 6 to 24 months sentence served in
SCI[.]
(N.T. Resentencing, 2/9/16, at 8-11). The court attempted on some level to
account for Appellant’s presentence period of incarceration when imposing
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the revocation sentence. The court’s sentencing decision, however,
apparently was affected by a misunderstanding of how to apply credit for the
time Appellant spent in custody on the detainer. Credit for Appellant’s
presentence period of incarceration on the probation detainer must be
applied to her revocation sentence as a whole, not just the minimum term.
See 42 Pa.C.S.A. § 9760(1). In other words, if the court intended to impose
a twenty-four month maximum term of incarceration, Appellant should
spend no more than twenty-two months in prison from the date her
sentence began to account for the time she already spent incarcerated.
Without the proper notation on the sentencing orders, however, Appellant
might not receive that credit and is exposed to a potential twenty-six
months of incarceration. See Commonwealth v. Ellsworth, 97 A.3d 1255
(Pa.Super. 2014) (stating Department of Corrections (“DOC”) is executive
agency with no power to add or remove sentencing conditions, including
credit for time served); Commonwealth v. Heredia, 97 A.3d 392
(Pa.Super. 2014), appeal denied, 628 Pa. 637, 104 A.3d 524 (2014) (stating
text of sentencing order is determinative of court’s sentencing intentions and
sentence imposed).
In light of the confusion at resentencing surrounding the court’s
intended sentence and the proper application of credit for time served, we
vacate the judgment of sentence and remand for resentencing. To avoid
any ambiguity, the court shall impose the over-all sentence it deems
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appropriate (without subtracting credit for time served from the minimum
and maximum terms), and then indicate on the sentencing orders that
Appellant is to receive credit for the exact number of days she spent in
custody on the probation detainer (60 or 62) as well as the exact number of
days she has served in custody pending resolution of her appeal.6
Accordingly, we vacate the judgment of sentence and remand for
resentencing.
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2016
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6
The sentencing orders will then trigger the DOC’s duty to credit Appellant’s
sentence appropriately.
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Com. v. Queen, V.
Combined Opinion