Com. v. Harley, R. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RICHARD HARLEY, : No. 1948 EDA 2018
:
Appellant :
Appeal from the Order Entered May 24, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007535-2013
BEFORE: STABILE, J. NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 12, 2020
Richard Harley appeals from the trial court’s May 24, 2018 order denying
his motion “for adjustment of time credit”1 filed on his behalf by his
1 Although Attorney Nasuti styled this filing as a post-sentence motion, the
time for filing a timely post-sentence motion or appealing the denial of said
motion had long since passed. Appellant was sentenced on July 20, 2017,
and Attorney Nasuti did not file said motion until May 4, 2018. Pennsylvania
Rule of Criminal Procedure 720 states that “a written post-sentence motion
shall be filed no later than 10 days after imposition of sentence.”
Pa.R.Crim.P. 720(A)(1). When such a motion is timely filed, the appeal period
is tolled. Id. at 720(A)(2). However, “[i]f the defendant does not file a timely
post-sentence motion, the defendant’s notice of appeal shall be filed within 30
days of imposition of sentence[.]” Id. at 720(A)(3). Nevertheless, it is well
settled that we may reach the merits of an appeal taken from: (1) a final
order or an order certified as a final order; (2) an interlocutory order
appealable as of right; (3) an interlocutory order appealable by permission;
or (4) a collateral order. Commonwealth v. Brister, 16 A.3d 530, 533
(Pa.Super. 2011) (citation omitted). Here, appellant’s contention that the trial
court failed to properly award credit for time-served implicates the legality of
his sentence, and “[a] claim challenging the legality of sentence is appealable
as of right.” Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa.Super. 2017)
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then-counsel, Carmen Nasuti III, Esq. (“Attorney Nasuti”).
Contemporaneously with this appeal, appellant’s present counsel, David W.
Barrish, Esq. (“Attorney Barrish”), has requested leave to withdraw in
accordance with Anders v. California, 386 U.S. 738 (1967),
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and their
progeny. After careful review, we grant counsel’s petition to withdraw and
affirm the order.
The trial court summarized the tortured factual and procedural history
of this case as follows:
On May 18, 2015, [appellant] tendered pleas of
nolo contendere [before the Honorable William J.
Mazzola] in this case [(No. CP-51-CR-0007535-
2013)] to five counts of theft by deception and one
count of criminal conspiracy.[Footnote 1] [Appellant]
was colloquied by the [trial] court and the
Commonwealth presented a recitation of the evidence
it would have produced at trial in support of the court’s
acceptance of the pleas. The [trial] court then
deferred further action until it could examine the
extensive documentation submitted by the
Commonwealth and to allow it to present additional
evidence. Following a series of hearings at which it
presented the testimony of the victims of [appellant’s]
crimes, the [trial] court accepted the pleas and
entered findings of guilt on May 25, 2016. On July 20,
2017, the court sentenced [appellant] to a minimum
of two and a half (2½) to a maximum of five (5) years’
incarceration followed by seven (7) years’ probation.
[Appellant] did not appeal from that judgment of
sentence. The convictions arose from a series of
transactions between [appellant] and a number of
individuals and involving the collusion of a notary
(citation omitted); see also 42 Pa.C.S.A. § 9781(a). Accordingly, the trial
court’s May 24, 2018 order constitutes a final, appealable order.
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public and a loan officer of a prominent national bank.
[Appellant] fraudulently created colorable title to
various properties in which he had no interests
whatsoever and induced the individuals to buy them
from him as investment properties with loans
arranged by the bank officer and promises that he
would make needed repairs and improvements and
obtain low income tenants for them. At the last
hearing, at which the [trial] court intended to enter
sentence, [appellant] requested that he be given an
opportunity to produce records and witnesses to
establish that he made prodigious efforts to make the
repairs and improvements on, and obtain the tenants
for, the properties that he promised the victims he
would in mitigation of his sentence and the court
continued the matter one more time to allow him to
do so. At the last hearing, he did not produce any such
evidence and the [trial] court entered the sentence.
In his previous case [(No. CP-51-CR-0013124-2008)],
at a nonjury trial conducted on December 2, 2009, by
the Honorable Charles J. Cunningham III, [appellant]
had been found guilty of theft by unlawful taking of
movable property, theft by deception by creating a
false impression, receiving stolen property, theft by
failing to make required disposition of funds received,
forgery and false swearing[.Footnote 2] [Appellant]
was sentenced on January 20, 2010, to a minimum of
eleven and a half (11½) to a maximum of
twenty-three (23) months’ incarceration followed by
five (5) years’ probation with credit to be calculated
by the Philadelphia Prison System. [Appellant’s]
judgment was affirmed in his direct appeal on
March 30, 2011, and allocatur was denied on
August 23[, 2011]. Commonwealth v. Holley, 26
A.3d 1210 (Pa.Super. 2011) (unpublished
memorandum), appeal denied, [27 A.3d 223 (Pa.
2011)]. [Appellant] did not seek further review. On
May 25, 2012, the [trial] court found that [appellant]
was not in violation of his parole and allowed his
probation/parole to continue, but ordered that he was
precluded from engaging in any real estate or related
transactions without the written approval of the court.
[Appellant] was arrested and charged in [the instant
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matter] on September 5, 2012. On May 8, 2014,
Judge Cunningham found that [appellant] was in
violation of parole, noted that restitution had
remained unpaid, ordered him taken into custody, set
bail at sixty thousand dollars ($60,000) and scheduled
a sentencing date. On June 6[, 2014], [appellant]
having apparently made bail, the [trial] court granted
his request to conduct a real estate transaction for the
purpose of paying defense counsel’s fees and
restitution. On January 6, 2015, the [trial] court again
revoked his release and ordered his bail forfeited. On
January 21[, 2015], the [trial] court resentenced him
to a new aggregate term of eleven and a half (11½)
to twenty-three (23) months’ county custody followed
by five (5) years’ probation with restitution and all
other previous conditions to remain in effect. On
August 5[, 2015], [appellant] filed a motion for early
release on parole [with Judge Cunningham.]
[Judge Mazzola was notified of this motion and]
revoked [appellant’s] release on bail on October 1[,
2015]. Judge Cunningham denied [appellant’s]
motion [for early release on parole] on October 15[,
2015], and denied a subsequent one on March 23,
2016, at which point the docket entries in that case
cease.
[Footnote 1] 18 Pa.C.S.A. §§ 3922(a)(1)
and 903(a)(1), respectively.
[Footnote 2] 18 Pa.C.S.A. §§ 3921(a),
3922(a)(1), 3925(a), 2927(a),
4101(a)(1), and 4903(a)(1), respectively.
Trial court opinion, 5/13/19 at 1-3 (formatting of internal citation and
footnotes amended).
As noted, on May 4, 2018, Attorney Nasuti filed a motion before
Judge Mazzola requesting an adjustment of appellant’s time credit. In this
petition, Attorney Nasuti argued that appellant was entitled to credit for
time-served from October 1, 2015, the date his bail was revoked by
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Judge Mazzola, to July 20, 2017, the date he was sentenced in the instant
matter. (See motion for credit for time served, 5/4/18 at ¶¶ 5-6, 14.)
Attorney Nasuti alleged that “[t]he reason that [Judge Mazzola] revoked
[appellant’s] bail on October 1, 2015, was that [appellant] was about to be
paroled on his other case, [No. CP-51-CR-0013124-2008 before
Judge Cunningham,] and [Judge Mazzola] did not want [appellant] released
from jail.” (Id. at ¶ 13.) In this motion, Attorney Nasuti conceded that
appellant was serving a county sentence during this period and did receive
credit on Judge Mazzola’s case from November 8, 2016, the date he finished
serving Judge Cunningham’s revocation sentence, to July 20, 2017, the date
he was sentenced in the instant matter. (Id. at ¶¶ 3, 7; see also notes of
testimony, 5/24/18 at 5-6, 8-10.) Nonetheless, Attorney Nasuti inexplicably
argued that appellant should receive credit for all the time between
October 1, 2015 to July 20, 2017. (Motion for credit for time served, 5/4/18
at ¶ 14.)
Following a hearing on May 24, 2018, Judge Mazzola denied appellant’s
petition, concluding that he was not entitled to time credit and that the trial
court no longer had jurisdiction to run the sentence concurrently to
Judge Cunningham’s revocation sentence. (Notes of testimony, 5/24/18
at 10.) Appellant filed a timely pro se notice of appeal on June 19, 2018. On
July 12, 2018, Attorney Nasuti requested permission to withdraw, which was
granted the following day. Thereafter, on September 19, 2018,
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Attorney Barrish was appointed to represent appellant on appeal. On
December 6, 2018, the trial court directed appellant to file a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Following an extension, Attorney Barrish filed a timely Rule 1925(b) statement
on appellant’s behalf. On March 6, 2019, the trial court indicated that
Judge Mazzola was no longer sitting on the bench and would not be filing an
opinion. Thereafter, the Honorable Shanese I. Johnson filed a comprehensive
Rule 1925(a) opinion on May 13, 2019.
On June 12, 2019, Attorney Barrish filed a brief in accordance with
Anders/McClendon and their progeny, and sent correspondence to appellant
advising him of the option to retain new counsel or proceed pro se. Notably,
however, Attorney Barrish failed to file a corresponding petition to withdraw.
On December 18, 2019, this court issued a per curiam order striking
Attorney Barrish’s brief and directing him, within 30 days, to comply with
Anders by filing a brief and petition to withdraw or an advocate’s brief on
appellant’s behalf. (See per curiam order, 12/18/19.) Attorney Barrish
complied with this court’s order on January 16, 2020. At no point in this
matter has appellant responded to Attorney Barrish’s request to withdraw.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.
2010) (citation omitted). In order to withdraw pursuant to Anders, “counsel
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must file a brief that meets the requirements established by our Supreme
Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).”
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014) (parallel
citation omitted). Specifically, counsel’s Anders brief must comply with the
following requisites:
(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.
Id. (citation omitted).
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief
must be accompanied by a letter that advises the client of the option to
“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;
or (3) raise any points that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel in the Anders brief.” Id.“Once counsel has satisfied the above requirements, it is then this [c]ourt’s
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duty to conduct its own review of the trial court’s proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super. 2007)
(en banc) (citation and internal quotation marks omitted).
Instantly, we conclude that Attorney Barrish has satisfied the technical
requirements of Anders and Santiago. Attorney Barrish has identified the
pertinent factual and procedural history and made citation to the record.
Attorney Barrish has also raised a claim that could arguably support an appeal,
but ultimately concludes that appellant’s claim is wholly frivolous.
Attorney Barrish has also sent a letter to appellant, which meets the notice
requirements of Millisock. Accordingly, we proceed to conduct an
independent review of the record to determine whether this appeal is wholly
frivolous.
The crux of appellant’s claim is that the trial court erred in failing to give
him credit for time served from October 1, 2015, the date that his bail was
revoked by Judge Mazzola, to July 20, 2017, the date he was sentenced in the
instant matter. (Anders briefs at 24-29.)
Preliminarily, we recognize that appellant conceded in his motion that
he was granted “time credit from 9/5/12 to 9/11/12 and 11/8/16 to
7/20/17[,]” and therefore, the period from November 8, 2016 until July 20,
2017 is not at issue. (Motion for credit for time served, 5/4/18 at ¶ 3.)
Contrary to appellant’s contention, our review further establishes that
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appellant is not entitled to credit for the period from October 1, 2015 to
November 8, 2016, as he was incarcerated for his revocation sentence
imposed by Judge Cunningham from January 21, 2015 until November 8,
2016.
As recognized by the trial court, appellant has failed “[to] cite any
statutory or case authority for his unusual theory that [he] should be given
credit in this case for the time he served in completing the sentence in his
previous case.” (Trial court opinion, 5/13/19 at 4.) On the contrary, the law
with regard to sentencing credit in the instance of unrelated offenses is well
established. Pursuant to 42 Pa.C.S.A. § 9760, a sentencing court must
generally give credit for time served as follows:
[i]f 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(4).
However, “[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, 2020 PA Super 5, 2020 WL 113401, at *3
(Pa.Super. January 10, 2020). Rather, this court has specifically recognized
that “a defendant shall be given credit for any days spent in custody prior to
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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), citing Commonwealth v. Miller, 655
A.2d 1000, 1002 (Pa.Super. 1995).2
Here, appellant is not entitled to a sentencing credit for time-served
from October 1, 2015 to November 8, 2016, because during that time he was
serving his revocation sentence imposed by Judge Cunningham in
No. CP-51-CR-0013124-2008. Based on the foregoing, we agree with
Attorney Barrish that this appeal is wholly frivolous and that appellant is
entitled to no relief on his time-credit claim. After our own independent review
2 Miller involved a defendant who was arrested and charged with delivery of
a controlled substance, and subsequently posted bail and was released from
custody. Nearly four months later, during the pendency of the initial charge,
Miller was arrested separately on an unrelated charge of aggravated assault.
Shortly thereafter, Miller was charged separately with robbery associated with
the same incident that had prompted the assault charge. He remained
incarcerated for several months on the latter two charges, but ultimately was
acquitted on those charges. During the pendency of those charges, Miller
pleaded guilty to the drug charge, and sentencing had been deferred.
Ultimately, over a month after his acquittal and release on the assault and
robbery charges, Miller was sentenced to confinement for the drug charge.
Miller, 655 A.2d at 1001. Miller sought credit for all time served on the
assault and robbery charges prior to his sentencing on the drug charge.
However, the trial court gave him credit only for the days that he served on
the drug charge between his arrest on that charge and when he posted bail.
On appeal, Miller argued that Section 9760(4) required that he be granted
credit for the time he was detained on the assault and robbery convictions of
which he ultimately was exonerated. The Miller court disagreed, concluding
that Section 9760(4) was inapplicable and “[c]redit is not given . . . for a
commitment by reason of a separate and distinct offense.” Id. at 1002-1003.
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of the record, we discern no additional issues of arguable merit. Accordingly,
we grant Attorney Barrish’s petition to withdraw and affirm the May 24, 2018
order of the trial court.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/20
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