Com. v. Malone, J. ( 2023 )

J-A15007-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB MATTHEW MALONE :
:
Appellant : No. 1318 WDA 2022
Appeal from the Judgment of Sentence Entered February 18, 2022
In the Court of Common Pleas of Somerset County
Criminal Division at CP-56-CR-0000590-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: July 28, 2023
Jacob Matthew Malone (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to terroristic threats.1 We affirm.
In 2019 and early 2020, Appellant was incarcerated at SCI-Laurel
Highlands and serving a prison sentence (Chester County sentence) related to
his 2017 conviction of institutional sexual assault and other crimes. One of
Appellant’s fellow inmates, Angelo Tomeo (Tomeo), contacted police and
claimed Appellant had attempted to hire Tomeo to murder two people: the
judge who imposed Appellant’s Chester County sentence (Judge), and a
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2706(a)(3).
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witness for the Commonwealth in that case (Pastor). Affidavit of Probable
Cause, 2/25/20. At Appellant’s guilty plea hearing, the parties agreed:
Communications were made by [Appellant] with a cellmate to
have cellmate commit crimes against Pastor and Judge, which was
then communicated to both the Pastor and the Judge and created
a reasonable possibility of both the Pastor and Judge changing
their daily operations.
N.T., 10/26/21, at 5.
On October 26, 2021, Appellant and the Commonwealth entered into an
open plea agreement: Appellant pled guilty to terroristic threats in exchange
for the Commonwealth withdrawing the remaining charges. At the guilty plea
hearing, the trial court admitted into evidence a written Guilty Plea
Questionnaire that Appellant had completed with the assistance of counsel.
Id. at 7-8. The trial court also conducted an oral colloquy, id. at 8-10, prior
to accepting Appellant’s guilty plea as knowingly and voluntarily tendered. Id.
at 10. The court deferred sentencing for the preparation of a “modified” pre-
sentence investigation report (PSI). See id. at 11-12 (Appellant agreeing to
waive his right to a full PSI, and the trial court stating, “what I will do is direct
the [Somerset County] Probation Department [(Probation Department)] to
prepare a modified Pre-Sentence in the nature of a record check.”).
The Probation Department PSI provided, with respect to Appellant’s
Chester County sentence, his release on parole, and his recommitment
following filing of the charges in the instant case, as follows:
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04-28-17[:] Guilty plea/sentenced; … aggregate sentence of
three (3) to six (6) years [in a] State Correctional Institution, five
(5) years [of] probation consecutive.
11-19-21[:] Paroled.
11-25-21[:] Recommitted; all parole and release orders
rescinded.
PSI, 11/3/22, at 12 (unnumbered).
Regarding the instant charges, the PSI stated:
[Appellant’s] bond was set at $500,000 [], which he has been
unable to post. However, he continues to serve the Chester
County sentence[;] therefore, he is not eligible for
incarceration credit on this case.
Id. at 16 (unnumbered) (emphasis added).
On December 28, 2021, the trial court sentenced Appellant to 16 – 84
months in prison, within the standard range of the sentencing guidelines. The
court ordered the sentence to run consecutively to Appellant’s Chester County
sentence, but concurrently with Appellant’s pending, five-year sentence of
probation. N.T., 12/28/21, at 9-10.
On January 6, 2022, Appellant filed a post-sentence motion for
reconsideration of sentence. Appellant claimed the court failed to apply “credit
towards his sentence for the time that he has spent in SCI Somerset.” Post-
Sentence Motion, 1/6/22, ¶ 4. One day later, the Commonwealth filed a
motion to modify sentence, asserting there was a “facial[ly] apparent error in
the language of the sentencing order.” Motion to Modify Sentence, 1/7/22,
¶ 3; see also id. ¶ 2 (explaining the purported error).
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The trial court held a hearing on the respective post-sentence motions
on February 18, 2022. The court first addressed Appellant’s motion:
[B]ecause this issue was raised [by the defense] …, I did ask the
Probation Department to again look at this issue and to investigate
whether or not [Appellant] was entitled to any credit for
incarceration for time served with respect to the sentence in this
case. And the Probation Department determined that he was not
entitled to any incarceration credit on this sentence.
And I believe the reason for that, again, is that … [Appellant]
had been paroled on his Chester County sentence; that he was
then charged with the alleged crimes in [this] Somerset County
case; as a result of that, the [Pennsylvania] Parole Board [(Parole
Board)] put [Appellant] back into S.C.I.[-Somerset] based on the
new charges that were filed on a parole detainer, and [Appellant]
was being detained in his Chester County case, not on the
Somerset County case necessarily; and any incarceration that
occurred prior to [Appellant’s] sentencing on December 28th,
2021, was time that was allocated to his Chester County case
and not his Somerset County sentence.
So for those reasons, I am denying [Appellant’s] Motion for
Reconsideration of Sentence.
I will also add that the language that was in my original
sentencing order directed the [Pennsylvania] Department of
Corrections [(“D.O.C.” or “Department of Corrections”)] to advise
this court whether they believed [Appellant] was entitled to any
incarceration credit with respect to the Somerset County
sentence, and I did not receive any response or any information
from the D.O.C.; and specifically, they did not notify me that
[Appellant] was entitled to any credit.
N.T., 2/18/22, at 5-6 (emphasis added; some capitalization modified).
Next, the trial court addressed the Commonwealth’s motion to modify
sentence, which it granted. The court stated:
[Q]uite frankly, I was surprised [] to hear that the D.O.C.
was aggregating these sentences and that [Appellant] would be
eligible for parole very soon on the sentence that I imposed.
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My clear intent was that [Appellant] would serve a minimum
sentence of at least 16 months on the Somerset County charge[,]
with that sentence beginning on the date of sentencing, which was
December 28th, 2021.
In order to effectuate the intent of this court’s sentence, I
am going to issue an amended sentencing order today. Although
that order is being entered today, it will have an effective date of
December 28th, 2021, which was the original date of sentencing;
and [Appellant] would be entitled to incarceration credit from
December 28th, 2021, coming forward. But, nonetheless, it was
clearly my intent, and still is today, that the minimum sentence in
this case begin to run on December 28th, 2021, and then run
prospectively with respect to [Appellant’s] eligibility for parole in
this case.
Id. at 8-9 (some capitalization modified).
The trial court resentenced Appellant and imposed the same
incarceration term previously imposed (i.e., 16 – 84 months in prison). Id.
at 9-11. The court explained:
[Appellant] is not entitled to any credit on this sentence for
any periods of incarceration that occurred prior to December 28th,
2021.
The reasons for the sentence are that it falls within the
standard range of the sentencing guidelines; also, [Appellant]
committed this offense while serving a state incarceration
sentence; and [Appellant] threatened individuals who were
associated with that case for which he is currently serving a state
sentence, including the sentencing Judge; also, [Appellant’s]
actions have caused the [Pastor] to suffer emotionally and
psychologically and to continue to fear for his life; and any lesser
sentence would depreciate the seriousness of this offense.
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Id. at 10-11 (some capitalization modified).2
On March 23, 2022, Appellant filed a facially untimely, pro se notice of
appeal at 605 WDA 2022. See Pa.R.A.P. 903(a) (appeals must “be filed
within 30 days after the entry of the order from which the appeal is taken.”).
Also, Appellant’s counsel had filed a motion to withdraw his appearance on
March 16, 2022, which the trial court subsequently granted.
On March 23, 2022, while still represented by counsel, Appellant filed a
facially untimely, pro se “Motion for Post-Sentence Relief Nunc Pro Tunc.” See
Commonwealth v. Staton, 184 A.3d 949, 957 (Pa. 2018) (“no defendant
has a constitutional right to hybrid representation, either at trial or on appeal.”
(citation omitted)); Pa.R.Crim.P. 720, cmt. (“No direct appeal may be taken
by a defendant while his or her post-sentence motion is pending”); but cf.
Commonwealth v. Williams, 241 A.3d 353, 355 (Pa. Super. 2020) (“where
counsel has effectively discontinued working on a defendant’s behalf, this
Court has concluded that a pro se filing does not offend considerations of
hybrid representation”).
On April 4, 2022, the trial court denied Appellant’s pro se post-sentence
motion. On April 27, 2022, Appellant filed a second, pro se notice of appeal
from the April 4, 2022 order. See Commonwealth v. Jackson, 283 A.3d
814, 816 n.1 (Pa. Super. 2022) (“In a criminal action, [an] appeal properly
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2 As we discuss below, the trial court did not advise Appellant of his post-
sentence or appeal rights at this hearing or in the amended sentencing order.
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lies from the judgment of sentence made final by the denial of post-sentence
motions.” (citation omitted)). This Court docketed the appeal at 605 WDA
2022.
On August 10, 2022, this Court directed Appellant, at 605 WDA 2022,
to show cause as to why the appeal should not be quashed as untimely, where
Appellant filed his notice of appeal more than 30 days after the entry of the
February 18, 2022, amended sentencing order. Appellant’s new counsel
timely responded in correspondence filed August 19, 2022, detailing the
unique procedural history discussed above. This Court discharged the rule to
show cause on August 26, 2022, and referred the matter to the merits panel.
Appellant presents two issues for review:3
I. Whether the [trial] court abused its discretion by
implementing a local rule which categorically rejects
negotiated plea agreements containing a set duration of
confinement, and accepts only open plea agreements, where
said local rule is inconsistent with statement rule [sic] 590[?]
II. Whether Appellant’s sentence is illegal where the sentencing
court: (1) refused to calculate time credit; (2) breached a
non-delegable duty by ordering the Pennsylvania Department
of Corrections to calculate time credit; and (3) unlawfully
modified the sentence in violation of the negotiated plea
agreement?
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3 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Appellant’s Brief at 4 (some capitalization modified).4
Before we address Appellant’s issues, we must determine whether his
appeal is timely. Commonwealth v. Reid, 235 A.3d 1124, 1170 (Pa. 2020)
(“The timeliness of an appeal … [goes] to the jurisdiction of [an appellate]
Court and its competency to act.” (citation omitted)). As noted above, the
trial court never advised Appellant of his post-sentence or appeal rights, at or
after resentencing on February 18, 2022, in violation of Pa.R.Crim.P.
704(C)(3)(a) (mandating that at the time of sentencing, “[t]he judge shall
determine on the record that the defendant has been advised … of the right
to file a post-sentence motion and to appeal, of the time within which the
defendant must exercise those rights….” (emphasis added)); see also
Pa.R.Crim.P. 720(B)(4)(a) (“An order denying a post-sentence motion … shall
include notice to the defendant of … the right to appeal and the time limits
within which the appeal must be filed”). We conclude that the trial court’s
failure to comply with the foregoing rules “constitutes a breakdown that
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4 We note Appellant purported to withdraw his first issue, days prior to oral
argument, in a “reply brief” filed on June 20, 2023. We nevertheless address
the issue, which Appellant preserved in his court-ordered Rule 1925(b) concise
statement. Concise Statement, 6/8/22, ¶ 1.
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excuses the untimely filing of Appellant’s notice of appeal.” Commonwealth
v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007).5, 6
In his first issue, Appellant claims his “guilty plea is invalid,” because it
“was not accompanied by the necessary colloquy.” Appellant’s Brief at 12, 13
(some capitalization modified). Appellant asserts:
At no point in the proceeding did the lower court ask the Appellant
any questions regarding giving up his right to a trial by jury, nor
did the lower court inform him of the permissible ranges of
sentences and fines his guilty plea carried.
Id. at 13 (some capitalization modified). According to Appellant, the court
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5 Alternatively, we note that Appellant was incarcerated when he filed his pro
se notice of appeal, dated March 18, 2022, i.e., within the 30-day period of
Rule 903(a), supra. Under the prisoner mailbox rule, a prisoner’s pro se filing
“is deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Kennedy, 266 A.3d 1128, 1132 n.8 (Pa. Super. 2021)
(citation omitted)); Pa.R.A.P. 121(f) (same).
6 In Appellant’s appeal at 605 WDA 2022, he presents identical issues and an
essentially identical brief. Thus, we quashed 605 WDA 2022 as duplicative.
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violated Pennsylvania Rule of Criminal Procedure 590.7 Id. at 14 n.2 (stating
trial court “fail[ed] to comply with Rule 590 in the form of an on-the-record
colloquy”).8 Appellant cites this Court’s decision in Commonwealth v.
Prendes, 97 A.3d 337 (Pa. Super. 2014), where we stated:
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7 Rule 590 provides in relevant part:
(B) Plea agreements.
(1) At any time prior to the verdict, when counsel for both
sides have arrived at a plea agreement, they shall state on the
record in open court, in the presence of the defendant, the
terms of the agreement….
(2) The judge shall conduct a separate inquiry of the defendant
on the record to determine whether the defendant understands
and voluntarily accepts the terms of the plea agreement on
which the guilty plea or plea of nolo contendere is based.
(3) Any local rule that is inconsistent with the provisions of this
rule is prohibited, including any local rule mandating deadline
dates for the acceptance of a plea entered pursuant to a plea
agreement.
Pa.R.Crim.P. 590(B).
8 Though Appellant does not develop this claim in his argument, he asserted
in his statement of questions that the trial court improperly “implement[ed] a
local rule which categorically rejects negotiated plea agreements containing a
set duration of confinement …, [and] said local rule is inconsistent with [] rule
590[.]” Appellant’s Brief at 4 (capitalization modified). We caution Appellant:
When briefing the various issues that have been preserved, it is an
appellant’s duty to present arguments that are sufficiently
developed for our review. Commonwealth v. Gould, 912 A.2d
869, 873 (Pa. Super. 2006). The brief must support the claims with
pertinent discussion, with references to the record and with citations
to legal authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). …
(Footnote Continued Next Page)
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Under Rule 590, [a trial] court [presented with a guilty plea]
should confirm, inter alia, that a defendant understands: (1) the
nature of the charges to which he is pleading guilty; (2) the factual
basis for the plea; (3) he is giving up his right to trial by jury; (4)
[] the presumption of innocence; (5) he is aware of the
permissible ranges of sentences and fines possible; and (6) the
court is not bound by the terms of the agreement unless the court
accepts the plea.
Id. at 352; Appellant’s Brief at 12-13. Appellant asks us to vacate his
judgment of sentence so he may “withdraw his guilty plea.” Appellant’s Brief
at 14 (footnote omitted).
This Court has detailed the relevant law as follows:
A valid plea colloquy must delve into six areas: 1) the nature of
the charges, 2) the factual basis of the plea, 3) the right to a jury
trial, 4) the presumption of innocence, 5) the sentencing ranges,
and 6) the plea court’s power to deviate from any recommended
sentence.” Commonwealth v. Morrison, 878 A.2d 102, 107
(Pa. Super. 2005) [(en banc)]; Pa.R.Crim.P. 590, Comment.
Additionally, a written plea colloquy that is read, completed and
signed by the defendant and made part of the record may serve
as the defendant’s plea colloquy when supplemented by an oral,
on-the-record examination. Morrison, 878 A.2d at 108 (citing
Comment to Pa.R.Crim.P. 590). “A plea of guilty will not be
deemed invalid if the circumstances surrounding the entry of the
plea disclose that the defendant had a full understanding of the
nature and consequences of his plea and that he knowingly and
voluntarily decided to enter the plea.” Commonwealth v.
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This Court will not act as counsel and will not develop
arguments on behalf of an appellant. Gould, 912 A.2d at 873.
Moreover, when defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or
find certain issues to be waived. Id.; Pa.R.A.P. 2101.
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (emphasis
added; some citations modified). Despite this defect, we decline to find
waiver.
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Fluharty, 632 A.2d 312, 315 (Pa. Super. 1993). “Our law
presumes that a defendant who enters a guilty plea was aware of
what he was doing. He bears the burden of proving otherwise.”
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (internal citation omitted). The entry of a negotiated plea
is a “strong indicator” of the voluntariness of the plea.
Commonwealth v. Myers, 642 A.2d 1103, 1106 (Pa. Super.
1994). Moreover, “the law does not require that the defendant be
pleased with the outcome of his decision to enter a plea of guilty:
All that is required is that his decision to plead guilty be knowingly,
voluntarily and intelligently made.” Commonwealth v.
Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010).
Commonwealth v. Reid, 117 A.3d 777, 782-83 (Pa. Super. 2015) (some
citations modified; brackets omitted).
Instantly, the trial court explained its rejection of Appellant’s challenge
to his guilty plea:
[Appellant] contends that the court abused its discretion by
implementing a local rule which categorically rejects negotiated
plea agreements containing a set duration of confinement. The
Court of Common Pleas of Somerset County does not have a local
rule which categorically rejects negotiated plea agreements
containing a set duration of confinement. Therefore, this court
does not maintain a local rule that is inconsistent with statewide
Rule 590 as alleged by [Appellant]. More importantly, the record
is clear that the Commonwealth and [Appellant] did not
enter into a plea agreement that included a set duration of
confinement. On October 26, 2021[, Appellant] entered an open
guilty plea to one count of terroristic threats, pursuant to 18
Pa.C.S. § 2706(a)(3), a felony of the third degree. There was no
discussion, nor were there any negotiations, with regard to what
[Appellant’s] sentence would be. Furthermore, question No. 40 of
the Guilty Plea Questionnaire was answered by [Appellant] in the
affirmative and provides: “Do you understand that the Court is
not bound by any plea bargain or agreement entered into by you
and the District Attorney and that the decision as to what your
sentence will be is solely that of the sentencing judge?” In the
case of Commw. v. White, 787 A.2d 108[8], 1091 (Pa. Super.
2001), the Pennsylvania Superior Court correctly recognized
that[:]
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In the interests of the orderly administration of the
criminal justice system[,] the right of the Commonwealth
and a criminal defendant to enter into dispositional
contracts, or plea agreements, is well recognized. While
the Commonwealth and a criminal defendant are free to
enter into an arrangement that the parties deem fitting,
the terms of a plea agreement are not binding upon the
court. Rather the court may reject those terms if the
court believes the terms do not serve justice.
[Id.] Although the court is free to reject a plea agreement
if the court believes the terms of the plea agreement do not
serve justice, that did not happen here. In fact, the court
accepted [Appellant’s] guilty plea in open court and simply
exercised it[]s discretion in fashioning a sentence within the
standard range of the sentencing guidelines.
Trial Court Opinion, 6/15/22, at 1-2 (emphasis added; some capitalization
modified; quotation to White indented). The trial court’s reasoning is
supported by the record and the law.
We further observe that the trial court conducted an oral colloquy of
Appellant prior to accepting his guilty plea. See N.T., 10/26/21, at 8-10.
Appellant also completed a thorough Guilty Plea Questionnaire, which the trial
court admitted in connection with Appellant’s plea. Id. at 6-7. Thus, there is
no merit to Appellant’s claim that his guilty plea was not accompanied by the
requisite colloquy. Appellant has failed to carry his burden of proving the
involuntariness of his plea. See Pollard, supra.In his second issue, Appellant contends the trial court imposed an illegal
sentence by failing to apply credit for time Appellant spent in prison before
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trial. See Appellant’s Brief at 14-17. Appellant quotes our decision in
Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008), which stated:
[A]ll time served by a parole violator while awaiting disposition on
new charges must be credited to the original sentence if he or she
remains in custody solely on a Board detainer. If the defendant
is incarcerated prior to disposition, and has both a detainer and
has failed for any reason to satisfy bail, the credit must be applied
to the new sentence by the sentencing court.
Id. at 751 (emphasis in Mann; citations omitted); Appellant’s Brief at 16.
Appellant claims: “Here, Appellant did have a [Parole] Board detainer, but did
not satisfy bail. … Accordingly, ‘the time he served prior to disposition of the
new offense[] should have been credited to his new sentence.’” Appellant’s
Brief at 16 (quoting Mann, 957 A.2d at 751-52). Appellant emphasizes
Mann’s holding that the “Department of Corrections, an executive agency,
has no power to change sentences, or to add or remove sentencing
conditions, including credit for time served; this power is vested in the
sentencing court.” Id. at 15 (quoting Mann, 957 A.2d at 749 (emphasis
added by Appellant)). Appellant asks us to vacate his judgment of sentence
and “direct the [trial c]ourt to issue a sentencing order granting the Appellant
time served.” Id. at 17.
The Commonwealth counters that the record does not support
Appellant’s claim:
[P]rior to December 28, 2021, [Appellant] was not in custody as
a result of the instant charges. Rather, [Appellant] was in custody
on the Chester County sentence. [Appellant] claims, that because
he was briefly paroled on February 13, 2020, but recommitted …
days later on February 25, 2020, due to the filing of the instant
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charges, that he was thereafter held on a pending parole violation
decision, or a “parole detainer.” In fact, [Appellant] was not
awaiting a parole violation decision. …
Commonwealth Brief at 9 (citations omitted); id. at 10 (claiming Appellant
“was serving time on [Appellant’s] Chester County sentence rather than the
new charges”). We agree.
Appellant’s claim implicates the legality of his sentence.
Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007) (“A
challenge to the trial court’s failure to award credit for time spent in custody
prior to sentencing involves the legality of sentence”). “The determination as
to whether a trial court imposed an illegal sentence is a question of law; an
appellate court’s standard of review in cases dealing with questions of law is
plenary.” Commonwealth v. White, 268 A.3d 499, 500 (Pa. Super. 2022)
(citation omitted). Our scope of review is de novo. Commonwealth v.
Summers, 245 A.3d 686, 697 (Pa. Super. 2021).
This Court has explained:
The Pennsylvania Sentencing Code, with regard to awarding credit
for time served, provides in relevant part as follows:
§ 9760. Credit for time served
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 conduct on which such a charge is based. Credit
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shall include credit for the time spent in custody prior
to trial, during trial, pending sentence, and pending
the resolution of an appeal.
***
(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), (4). This statute does not specifically
contemplate credit for time served following a parole violation and
revocation. Our Supreme Court has held, however, that this credit
statute mandates an offender receive credit for all incarceration
served before sentencing for which he is being detained in
custody. Gaito v. Pa. Bd. of Probation and Parole, … 412 A.2d
568 (Pa. 1980).
Commonwealth v. Gibbs, 181 A.3d 1165, 1166-67 (Pa. Super. 2018).
Nonetheless, defendants are “not entitled to receive credit against more
than one sentence for the same time served.” Commonwealth v. Ellsworth,
97 A.3d 1255, 1257 (Pa. Super. 2014) (citation and brackets omitted).
“[S]uch ‘double credit’ is prohibited both by the statutory language of Section
9760 and the principle that a defendant be given credit only for time spent in
custody for a particular offense.” Id. (citation and ellipses omitted).
Here, the trial court competently explained:
[Appellant] alleges that the court issued an illegal sentence by
refusing to calculate [and apply] time credit. A review of the
Sentencing Order and related transcript, dated December 28,
2021, indicates that the court determined that [Appellant] was
not entitled to incarceration credit for his Somerset County
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case. The court determined[] and was instructed by [the]
Probation [Department], that [Appellant’s] prior incarceration
was related to his Chester County case and his state parole
revocation. When pressed by [Appellant’s] counsel [at
sentencing, who claimed] that [Appellant] was due credit, the
court simply provided that if the D.O.C. ([] Parole Board)
disagreed and determined that [Appellant] was due credit in his
Somerset County case[,] the D.O.C. could advise the court of the
same in writing and the court would issue an amended sentencing
order.
… The court did not breach a non-delegable duty by ordering the
Pennsylvania D.O.C. to calculate time credit. As stated above, the
court determined that [Appellant] was not entitled to incarceration
credit on this case. At the request of defense counsel, the court
did request that the D.O.C. review [Appellant’s] parole status and
advise this court if it believed that [Appellant] was entitled to
credit. Furthermore, a review of the Sentencing Order and related
transcript, dated December 28, 2021, and the Amended
Sentencing Order and transcript, dated February 18, 2022, reveal
that this court determined that [Appellant] was not entitled to
credit. The court did not delegate that determination to the D.O.C.
Trial Court Opinion, 6/15/22, at 2-3 (emphasis added; some capitalization
modified). The record supports the trial court’s explanation.
Finally, we note that Appellant has failed to develop his claim, raised in
his questions presented, that the trial court “unlawfully modified the sentence
in violation of the negotiated plea agreement.” Appellant’s Brief at 4. This
has hampered our review, and we will not act as Appellant’s counsel. Gould,
912 A.2d at 873. Accordingly, the claim is waived. Id.However, in the absence of waiver, we would conclude there is no merit
to the claim. The trial court stated:
A review of the record will confirm that on February 18, 2022, this
court decided [Appellant’s] Motion for Reconsideration of
Sentence, as well as the Commonwealth’s Motion to Modify
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Sentence. The court issued an Amended Sentencing Order on
February 18, 2022, and sentenced [Appellant] to a sentence
within the standard range of the sentencing guidelines. A review
of the record will reveal that there was no plea agreement that
dictated whether the sentence would run concurrent or
consecutive. That determination is within the discretion of the
sentencing court.
Trial Court Opinion, 6/15/22, at 3 (emphasis added). It is well-settled that
“where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Based on the foregoing, Appellant’s second issue does not merit relief.
Judgment of sentence affirmed.
Judge Pellegrini joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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