Com. v. Davis, T. ( 2022 )

J-S38021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE WILLIAM DAVIS JR. :
:
Appellant : No. 423 WDA 2021
Appeal from the Judgment of Sentence Entered April 26, 2019
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001642-2018
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: February 11, 2022
Appellant, Terrance William Davis, Jr., appeals nunc pro tunc from the
Judgment of Sentence entered on April 26, 2019, in the Court of Common
Pleas of Washington County. Appellant challenges the voluntariness of his
open guilty plea and the sentencing court’s exercise of sentencing discretion.
After careful review, we find that Appellant waived his issues by failing to raise
them in the trial court and, therefore, affirm.
At a plea hearing on January 30, 2019, Appellant entered an open guilty
plea to three counts of Aggravated Assault1 related to his spitting on and
striking several corrections officers. Appellant completed a ten page written
plea colloquy and affirmed during the court’s oral colloquy that he understood
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2702(a)(3).
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the implications of his plea. Relevant to the instant appeal, Appellant affirmed
that he had discussed with his attorney and understood the sentencing
implications of his plea, including his potential maximum sentence. See Guilty
Plea, 1/30/19, at ¶¶ 53-54. See also N.T. Hr’g, 1/30/19, at 3-6 (oral plea
colloquy).
On April 26, 2019, the court sentenced Appellant to an aggregate term
of 10 to 30 years’ incarceration. Appellant did not file a post-sentence motion
or direct appeal.
At the conclusion of post-conviction proceedings, the court reinstated
Appellant’s right to file a direct appeal nunc pro tunc.2 Appellant timely filed a
Notice of Appeal and both he and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Did the trial court err in accepting [Appellant’s] guilty plea
without conducting a complete colloquy conforming to the
requirements of Pa.R.Crim.P. 590?
2. Did the trial court err in failing to calculate [Appellant’s] credit
for time served and delegating that duty to the Department of
Corrections?
Appellant’s Br. at 10.
In his first issue, Appellant alleges that he did not voluntarily enter his
guilty plea because the plea court did not “elicit[] what [Appellant] believed
the potential penalties he faced at trial actually were.” Id. at 21 (emphasis in
original). In other words, Appellant is critical that the plea court did not require
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2Appellant did not request reinstatement of his right to file a post-sentence
motion nunc pro tunc.
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him to recite in open court the sentencing implications of the crimes charged.
Id. at 16-23. Appellant waived this issue by failing to raise it in the lower
court.
It is axiomatic that “[a] defendant wishing to challenge the voluntariness
of a guilty plea on direct appeal must either object during the plea colloquy or
file a motion to withdraw the plea within ten days of sentencing.”
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013). See
also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i) (stating post-sentence motion
challenging validity of guilty plea shall be filed no later than 10 days after
imposition of sentence); Pa.R.A.P. 302(a) (“Issues not raised in the trial court
are waived and cannot be raised for the first time on appeal.”).
Instantly, Appellant did not challenge the voluntariness of his plea at his
January 30, 2019 plea hearing or in any post-sentence motion. Therefore,
Appellant has failed to preserve his challenge to the validity of his guilty plea,
rendering this issue waived on appeal.
In his second issue, Appellant asserts that the sentencing court erred
by delegating calculation of his credit for time served to the Department of
Corrections (“DOC”). Appellant’s Br. at 23-31. Appellant claims that the
sentencing court itself should have calculated his credit for time served. Id.Appellant does not allege that the court failed to grant him credit for time
served, or that the DOC failed to follow the court’s sentencing order or errantly
calculated his credit. In fact, the court clearly and unambiguously granted
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Appellant credit for time served, to be calculated by the DOC. See N.T.
Sentencing, 4/26/19, at 14-15.
Appellant’s claim implicates the sentencing court’s exercise of discretion
in delegating calculation of his time credit to the DOC.3 To preserve such a
challenge, an appellant must, inter alia, raise the sentencing claim before the
sentencing court or in a post-sentence motion. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (“issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspects of a sentence is
waived.” (citation omitted)).
Here, as discussed above, Appellant did not file a post-sentence motion.
Additionally, Appellant did not raise this issue before the court at his
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3 Appellant does not clearly delineate in his brief whether he is challenging the
legality of his sentence or the sentencing court’s exercise of discretion. In the
context of a grant of credit for time served, however, only where the
appellant’s claim is based upon the failure to give credit does the challenge
implicate the legality of sentence. See Commonwealth v. Dixon, 161 A.3d
949, 951 (Pa. Super. 2017). See also Commonwealth v. Heredia, 97 A.3d
392, 395 (Pa. Super. 2014) (“the trial court, when imposing Appellant’s
sentence, expressly and unambiguously granted him ‘credit for any time
served’ [and, therefore,] Appellant’s characterization that he challenges the
legality of his sentence is inaccurate.”). Here, there is no question that the
sentencing court granted Appellant credit for time served.
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sentencing hearing.4 As a result, Appellant has waived his challenge to the
discretionary aspects of his sentence.5
Appellant waived his issues by failing to raise them in the trial court. As
a result, we affirm.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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4 At Appellant’s sentencing hearing, the court unequivocally indicated that
“[t]he [DOC] will calculate credit for time served . . . I will state, ‘Defendant
shall be given credit for time served as calculated by the [DOC],’ but it will be
their responsibility to determine which credit is appropriate under the law.”
N.T. Sentencing, 4/26/19, at 8-9. Appellant did not object.
5 Moreover, 42 Pa.C.S. § 9760(1) directs sentencing courts to credit the
defendant for all time spent in custody on the charge for which the court is
imposing sentence. It does not direct that any particular entity must calculate
the credit and Appellant cites no law barring the sentencing court from
delegating calculation to the DOC. Pennsylvania’s appellate courts have,
moreover, sanctioned the practice of delegating calculation to the DOC. See,
e.g., Allen v. Com., Dept. of Corrections, 103 A.3d 365, 371 (Pa. Commw.
2014) (“[T]he sentencing court awarded credit as a condition of sentencing.
Specifically, the court ordered ‘credit for any time previously served on this
matter as determined by prisons’ . . . Thus, the sentencing order expressly
and unambiguously awarded credit, triggering DOC’s duty.” (emphasis
omitted)). As a result, Appellant’s claim is, additionally, without merit.
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