Com. v. Colon-Rodriguez, E. ( 2016 )


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  • J-S56034-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
    J-S56034-16
    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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    J-S56034-16
    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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    J-S56034-16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/24/2016
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