Com. v. Camero, P.

• Court: Superior Court of Pennsylvania
• Decided: September 24, 2019
• Docket: 3067 EDA 2018
• Status: Unpublished

Opinion

J-S38020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PETER CAMERO : : Appellant : No. 3067 EDA 2018

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005087-2017

BEFORE: OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 24, 2019

Appellant, Peter Camero, appeals from the Judgment of Sentence

entered in the Delaware County Court of Common Pleas following the

revocation of his parole and probation. With this appeal, Appellant’s counsel

has filed an Application to Withdraw as Counsel and an Anders1 brief. After

careful review, we deny counsel’s Application to Withdraw and remand for

further proceedings pursuant to Pa.R.A.P. 1925(c)(4).

We glean the following factual and procedural history from the certified

record. On October 18, 2017, Appellant pleaded guilty to one count each of

Possession of Marijuana for Personal Use and Theft from a Motor Vehicle 2 for

breaking into a vehicle and possessing a sandwich bag containing marijuana.

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1 Anders v. California, 386 U.S. 738 (1967).

2 35 P.S. § 780-113(a)(31) and 18 Pa.C.S. § 3934(a), respectively. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S38020-19

The court sentenced Appellant to a term of time-served to twelve months’

incarceration, followed by to one year of probation; the court then granted

him immediate parole.

On August 17, 2018, after violating the terms of his parole and

probation, Appellant was arrested and incarcerated pending a September 19,

2018 Gagnon II3 hearing. At the Gagnon II hearing, Appellant conceded

that he violated the terms of his parole and probation. Thus, the trial court

(“VOP court”) revoked Appellant’s parole and incarcerated him to the balance

of the sentence previously imposed, one hundred seventy-four days, and

revoked his probation and incarcerated him to a consecutive sentence of one

to two years’ imprisonment. The VOP court granted Appellant one hundred

ninety-one days’ credit for time served. Importantly, this credit included his

time served from August 17, 2018 to September 19, 2018.

On September 26, 2018, Appellant filed a pro se Motion for

Reconsideration of Sentence and pro se Notice of Appeal. On October 17,

2018, Appellant filed a counseled Notice of Appeal. Both the VOP court and

Appellant complied with Pa.R.A.P. 1925.

Appellant’s counsel has filed both an Anders Brief and an Application to

Withdraw as Counsel. In response, Appellant filed a Pro Se Response. The

Anders Brief and Pro Se Response raise the same issue: “[w]hether the court

erred when it sentenced Appellant to prison without crediting him for the time

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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he had already served on the case.” Anders Br. at 3; Appellant’s Pro Se

Response, filed 6/3/19.

As a preliminary matter, we address appellate counsel’s Application to

Withdraw as Counsel. “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 for counsel to withdraw from an

appeal pursuant to Anders, our Supreme Court has determined that counsel

must meet the following requirements:

(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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Appellate counsel has complied with the mandated procedure for

withdrawing as counsel. Additionally, appellate counsel confirms that he sent

Appellant a copy of the Anders Brief and Application to Withdraw as Counsel,

as well as a letter explaining to Appellant that he has the right to retain new

counsel, proceed pro se, or to raise any additional issues he may deem worthy

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of merit. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super.

2005) (describing notice requirements). Accordingly, counsel has satisfied the

technical requirements of Anders.

Because appellate counsel has satisfied the above requirements, we will

address the substantive issue raised in the Anders Brief and Pro Se Response.

Appellant contends that the trial court failed to credit him for the thirty-three

days he was incarcerated awaiting his September 19, 2018 Gagnon II

hearing, i.e., from August 17, 2018 to September 19, 2018. Id.; Anders Br.

at 4; Pro Se Response. We disagree.

A challenge to the trial court’s failure to award credit for time served

prior to any type of sentencing is a challenge to the legality of a sentence.

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). The

question of whether a trial court imposed an illegal sentence is a question of

law and, therefore, our review is de novo. Commonwealth v. Infante, 63

A.3d 358, 363 (Pa. Super. 2013).

The Pennsylvania Sentencing Code provides that a trial court shall give

a defendant credit for time spent incarcerated and states, in relevant part:

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.

42 Pa.C.S. § 9760(1).

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Appellant contends that the court failed to give him credit for time

served, from August 17, 2018 to September 19, 2018. Our review of the

record, however, shows that the court granted Appellant one hundred ninety-

one days’ credit for time served, including the thirty-three days served from

August 17, 2018 to September 19, 2018. Certificate of Imposition of Judgment

of Sentence, Docket No. CP-23-CR-0005087-2017, dated 10/18/17; N.T.

Hearing, 9/19/18, at 14-15. Because Appellant received credit for the time he

spent incarcerated from August 17, 2018, to September 19, 2018, this issue

has no merit.

However, our independent review reveals that Appellant’s resentence

may be illegal. Where, as in the instant case, the court revokes a defendant’s

parole and probation, the court has the same sentencing options available that

existed at the time of the original sentencing. Commonwealth v. Ware, 737

A.2d 251, 254 (Pa. Super. 1999). Here, it appears that the terms of

Appellant’s resentence exceed the statutory maximum sentence available at

the time of the original sentencing. See 18 Pa.C.S. § 1104(2) (stating the

maximum sentence for Theft of Motor Vehicle); 35 P.S. § 780-113(g) (stating

maximum sentence for Possession of Marijuana for Personal use). Accordingly,

this issue has arguable merit.

Because our independent review of this appeal reveals the existence of

an issue of arguable merit, we deny counsel’s request to withdraw and we

remand this case to the VOP court for counsel to address the legality of

Appellant’s sentence in a supplemental Pa.R.A.P. 1925(b) Statement within

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30 days. The VOP court shall file a supplemental Rule 1925(a) opinion within

45 days from the filing of the supplemental Pa.R.A.P. 1925(b) Statement.

Case remanded. Application to Withdraw denied. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/19

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