Com. v. Laws, D. ( 2021 )

J-S47013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DAMETRIUS CEFUS LAWS
Appellant No. 254 MDA 2020
Appeal from the Judgment of Sentence Entered January 9, 2020
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0004062-2018
BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2021
Appellant Dametrius Cefus Laws appeals from the January 9, 2020
judgment of sentence entered in the Court of Common Pleas of Luzerne
County (“trial court”), following his guilty plea to robbery of a motor vehicle
and theft by unlawful taking.1 His counsel has filed a brief and an application
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1969), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
affirm the judgment of sentence and grant counsel’s application to withdraw.
The facts and procedural history of this case are undisputed. In
connection with an incident occurring on March 1, 2016, Appellant pleaded
guilty to conspiracy to commit robbery at docket number 3466-2016 (the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3702(a) and 3921(a), respectively.
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“First Case”). On March 17, 2017, the trial court sentenced him five to 10
years’ imprisonment in the First Case.
While incarcerated, on June 22, 2018, Appellant was charged in the
instant case—docket number 4062-2018 (the “Second Case”)—with, inter
alia, robbery of a motor vehicle and theft by unlawful taking arising out of an
incident that occurred on April 3, 2016. Appellant pleaded guilty to robbery
of a motor vehicle and theft by unlawful taking in the Second Case. On
January 9, 2020, the trial court sentenced Appellant to 36 to 72 months’
imprisonment followed by 2 years’ probation. The presentence investigation
report indicated that Appellant was not entitled to any time credit. On
February 6, 2020, Appellant pro se filed a “Petition for Credit for Imprisonment
While in Custody Prior to Sentence,” alleging that he was entitled to 455 days’
credit for time served.2 On the same day, Appellant timely appealed his
judgment of sentence. The trial court appointed counsel. Eventually, the trial
court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Appellant complied, raising a single assertion of
error, challenging the trial court’s failure to credit him for time served in the
Second Case. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion,
concluding that Appellant’s sentencing issue lacked merit. The court
determined that Appellant was not entitled to any credit for time served in the
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2 Appellant pro se later amended the time credit from 455 to 474 days. He
calculated the days from August 6, 2018 (the date of his preliminary
arraignment in the Second Case) to January 9, 2020 (the date of sentencing
sub judice).
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Second Case because he was serving the sentence in the First Case, which
arose out of a distinct and separate criminal incident.
On July 13, 2020, Appellant’s counsel filed in this Court an application
to withdraw as counsel and filed an Anders brief, wherein counsel raised the
following issue. “Is [] Appellant entitled to a credit of 474 days for time served
against the sentence imposed in the present case and did [the trial court] err
in failing to award that credit at the time of sentencing?” Anders Brief at 2.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 1) petition the
court for leave to withdraw stating that, after making a conscientious
examination of the record, counsel has determined that the appeal would be
frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s application to withdraw from representation
provides that counsel reviewed the record and concluded that the appeal is
frivolous. Furthermore, counsel notified Appellant that he was seeking
permission to withdraw and provided Appellant with copies of the petition to
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withdraw and his Anders brief. Counsel also advised Appellant of his right to
retain new counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention. Accordingly, we conclude that counsel has
satisfied the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court held:
[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.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates that
he has complied with the briefing requirements of Santiago. We, therefore,
conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met his obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, we now turn to the merits
of Appellant’s appeal.
Appellant’s sole issue before us implicates the legality of sentence. See
Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007) (noting
that “[a] challenge to the trial court’s failure to award credit for time spent in
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custody prior to sentencing involves the legality of sentence”), appeal
denied, 944 A.2d 756 (Pa. 2008). Issues relating to the legality of a sentence
are questions of law. Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa.
Super. 2016), aff’d 168 A.3d 137 (Pa. 2017). Our standard of review over
such questions is de novo and the scope of review is plenary. Id.Credit for time served is governed by Section 9760 of the Sentencing
Code, which provides:
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.
(2) Credit against the maximum term and any minimum term shall
be given to the defendant for all time spent in custody under a
prior sentence if he is later reprosecuted and resentenced for the
same offense or for another offense based on the same act or
acts. This shall include credit in accordance with paragraph (1) of
this section for all time spent in custody as a result of both the
original charge and any subsequent charge for the same offense
or for another offense based on the same act or acts.
(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.
(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
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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.
Instantly, we agree with counsel that Section 9760 does not entitle
Appellant to relief. It is well-settled that “[n]o language in Section 9760
provides, or even suggests, that an individual is entitled to credit for time
served for periods of incarceration on offenses . . . wholly unrelated to the
current charges.” Commonwealth v. Saunders, 226 A.3d 1019, 1022 (Pa.
Super. 2020) (citing Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa.
Super. 1995)). Indeed, this Court specifically has recognized 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. Credit is not given, however, for a commitment
by reason of a separate and distinct offense.” Commonwealth v. Clark, 885
A.2d 1030, 1034 (Pa. Super. 2005) (citation omitted).
Here, while Appellant was serving his sentence in the First Case, he was
arraigned and eventually sentenced in the (instant) Second Case. Thus, to
the extent Appellant requests 474 days’ credit for time served from the date
of his preliminary arraignment (August 6, 2018) until sentencing (January 9,
2020) in the Second Case, such request is contrary to settled law. As stated,
Appellant was serving his sentence in the First Case when he was charged,
arraigned, convicted, and sentenced in the Second Case. Both cases arose
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out of separate and distinct criminal incidents. Accordingly, Appellant is not
entitled to any credit for time served.
We have conducted an independent review of the record and addressed
Appellant’s argument on appeal. Based on our conclusions above, we agree
with Appellant’s counsel that the sentencing issue Appellant seeks to litigate
in this appeal is wholly frivolous. We, therefore, affirm the judgment of
sentence and grant counsel’s application to withdraw.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/09/2021
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