Com. v. Roberts, S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SALVADOR ROBERTS :
:
Appellant : No. 1284 EDA 2022
Appeal from the Judgment of Sentence Entered December 20, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000036-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 26, 2023
Appellant, Salvador Roberts, appeals from the Judgment of Sentence
entered on December 20, 2021, after he pleaded guilty to Third-Degree
Murder and Robbery.1 Appellant challenges the discretionary aspects of his
sentence. Finding Appellant’s issues waived, we affirm.
We derive the following factual and procedural history from the trial
court opinion and certified record. On December 11, 2017, police arrested
Appellant for his role as the getaway driver in the robbery and murder of a
pizza delivery person. The Commonwealth charged him with, inter alia,
Criminal Homicide and Robbery. On August 27, 2019, while Appellant was
incarcerated pending disposition of these charges, the trial court sentenced
him to 1 to 5 years’ incarceration for a prior, unrelated burglary conviction.
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1 18 Pa.C.S. §§ 2502(c), 3701(a)(1)(i).
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On October 7, 2021, Appellant entered an open guilty plea in the instant
case to Third Degree Murder and Robbery. On December 20, 2021, the court
held a sentencing hearing where it imposed an aggregate 25-to-60-year
incarceration sentence, comprised of consecutive sentences of 20 to 40 years
for Third-Degree Murder and 5 to 20 years for Robbery. The court granted
Appellant a 625-day credit against his December 20, 2021 sentence, for the
period from December 11, 2017, when police arrested him on the instant
charges, to August 27, 2019, when the court sentenced him for the unrelated
burglary. The court ordered Appellant to serve the December 20, 2021
sentence concurrently with the August 27, 2019 sentence.
On December 29, 2021, Appellant filed a post-sentence Motion for
Reconsideration of Sentence, in which he “request[ed that his time] credit be
reviewed to ensure he receives the full credit to which he was entitled.” Motion
for Reconsideration of Sentence, 12/29/21, at ¶ 5. He also “request[ed that
the court] consider amending his sentence” because he “believes, and
therefore avers, that a combined sentence of [20] rather than [25] years is
appropriate for his involvement in this case.” Id. ¶ 7-8.
On April 11, 2022, the trial court denied the motion. Appellant timely
filed a Notice of Appeal and he and the trial court complied with Pa.R.A.P.
1925.
Appellant raises the following issues for our review:
[1.] Whether the sentencing court erred and abused its discretion
by giving [Appellant] an excessive total sentence of [25 to 60]
years.
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[2.] Whether the sentencing court erred and abused its discretion
by only giving [Appellant] a time credit for a total of [625] days
rather than a credit from the date of his arrest on the underlying
charges[, an additional 845 days].
Appellant’s Br. at 5 (reordered for ease of analysis)
A.
In his first issue, Appellant challenges the trial court’s exercise of
sentencing discretion. Although he acknowledges that the sentencing court
“did not exceed standard range sentences for either offense,” Appellant
construes his aggregate sentence as an “aggravated” one because it
“exceed[s] the mandatory maximum for a charge [of Third-Degree Murder]
standing alone.” Id. at 11-12. He argues that the sentencing court abused its
discretion because it did not give an adequate explanation on the record to
justify its imposition of an allegedly aggravated-range sentence. Id.2
Challenges to the discretionary aspects of a sentence do not entitle an
appellant to review as of right. Rather, a challenge in this regard is properly
viewed as a petition for allowance of appeal. 42 Pa.C.S. § 9781(b);
Commonwealth v. Tuladziecki, 522 A.2d 17, 18-19 (Pa. 1987). To invoke
our review, the defendant must have (1) filed a timely notice of appeal; (2)
preserved the issue at sentencing or in a post-sentence motion; (3) included
in his or her brief a Rule 2119(f) statement; and (4) raise in the Rule 2119(f)
____________________________________________
2 Unfortunately, Appellant does not cite even once to the notes of testimony
in his brief, in violation of the Rules of Appellate Procedure. Pa.R.A.P. 2119(a),
(c). Our review of the record reveals that the sentencing court, aided by a
presentence investigation report, provided an extensive on-the-record
explanation for the sentence imposed. N.T. Sentencing, 12/20/21, at 54-65.
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statement a substantial question that the sentence is inappropriate under the
Sentencing Code or sentencing norms. Commonwealth v. Carrillo-Diaz,
64 A.3d 722, 725 (Pa. Super. 2013). Where an appellant has failed to raise
the discretionary sentencing claim at the sentencing hearing or in a post-
sentence motion, we will find the issue waived. Commonwealth v. Griffin,
65 A.3d 932, 935 (Pa. Super. 2013). See also Commonwealth v. Mann,
820 A.2d 788, 794 (Pa. Super. 2003) (finding waiver where “Appellant failed
to raise the specific claim” in the trial court).
In the present case, Appellant failed to preserve his discretionary
sentencing claim in the trial court. He did not argue in his post-sentence
motion that his sentence is excessive or that the court failed to place adequate
reasons for the sentence on the record. He likewise failed to raise any such
claim at sentencing. Consequently, this issue is waived.
B.
In his second issue, Appellant purports to argue that the court erred by
failing to award him an additional 845 days of time credit. Id. at 11. Appellant
does not, however, argue that he was entitled to any additional time credit.
Instead, he asserts that the court abused its sentencing discretion by failing
to order that his December 20, 2021 sentence begin retroactively as of August
27, 2019. Id. at 11-12. He alleges that the court had the power to do so
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pursuant to Pa.R.Crim.P. 705(b).3 Id. He concludes that “the imposition of a
concurrent sentence that does not run from [August 27, 2019] is hardly
concurrent at all.” Id. at 12.
Unfortunately, Appellant did not raise this issue at sentencing or in a
post-sentence motion. He likewise failed to include it in his Rule 1925(b)
Statement or Statement of Questions Involved. As a result, the issue is
waived. Pa.R.A.P. 302(a), 1925(b)(4)(vii), 2116(a).4
C.
In summation, we conclude that Appellant failed to preserve his
discretionary sentencing claims for this Court’s review. Consequently, we
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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3 Rule 705(b) states that if a court orders a sentence to run concurrently with
another sentence, “the sentence shall commence from the date of imposition
unless otherwise ordered by the judge.” Pa.R.Crim.P. 705(b). Appellant cites
no legal authority to support his argument that Rule 705 would have permitted
the court to order the retroactive commencement of his sentence.
4 Moreover, even if he had properly preserved this issue, we would conclude
that it is meritless. Appellant seeks to receive an additional 845 days of time
credit for the period from April 27, 2019, to December 20, 2021, while he was
serving an incarceration sentence for the unrelated burglary conviction. It is
axiomatic, however, that a defendant is not entitled to credit against a
sentence for time served on another sentence. See Commonwealth v.
Infante, 63 A.3d 358, 367 (Pa. Super. 2013) (“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.”
(citation omitted)). See also 42 Pa.C.S. § 9760.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2023
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