Com. v. Jackson, J.

• Court: Superior Court of Pennsylvania
• Decided: February 14, 2017
• Docket: Com. v. Jackson, J. No. 1041 MDA 2016
• Status: Unpublished

Opinion

J-S01031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JANAY BRITTANY JACKSON, : : Appellant : No. 1041 MDA 2016

Appeal from the Judgment of Sentence March 11, 2016 in the Court of Common Pleas of Luzerne County, Criminal Division, No(s): CP-40-CR-0002446-2015

BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 14, 2017

Janay Brittany Jackson (“Jackson”) appeals from the judgment of

sentence imposed following her guilty plea to possession with intent to

deliver a controlled substance (“PWID”). See 35 P.S. § 780-113(a)(30).

Additionally, Melissa Sulima, Esquire (“Attorney Sulima”), Jackson’s counsel,

has filed a Petition to Withdraw as counsel and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967). We grant

Attorney Sulima’s Petition to Withdraw, and affirm Jackson’s judgment of

sentence.

On January 22, 2016, Jackson entered a guilty plea to PWID. The

trial court deferred sentencing and ordered a pre-sentence investigation

report (“PSI”). On March 11, 2016, after reviewing the PSI, the trial court

sentenced Jackson to a term of 1 year, 8 months to 4 years in prison, to be

served concurrent with another sentence she was then serving in Wyoming J-S01031-17

County, Pennsylvania, on unrelated charges. The trial court found that

Jackson was eligible for a Recidivism Risk Reduction Incentive (“RRRI”)

minimum sentence, and indicated that the RRRI minimum sentence was 15

months.

Jackson filed a Motion for Clarification of Sentence, which the trial

court denied, following a hearing. Jackson subsequently filed a timely Notice

of Appeal. The trial court ordered Jackson to file a Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal. In lieu of filing a

Concise Statement, Attorney Sulima filed a Statement of Intent to File an

Anders/McClendon1 Brief, seeking to withdraw as counsel.

In the Anders Brief, the following question is presented for our

review: “Whether the trial court imposed an illegal sentence by failing to

give [] Jackson credit for time served prior to sentencing?” Anders Brief at

1. Jackson did not file a separate pro se brief, nor did she retain alternate

counsel for this appeal.

We must first determine whether Attorney Sulima has complied with

the dictates of Anders in petitioning to withdraw from representation. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc) (stating that “[w]hen faced with a purported Anders brief, this Court

may not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

1 Commonwealth v. McClendon, 424 A.2d 1185 (Pa. 1981).

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Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise [her] of [her] right to retain new counsel or to raise any additional points that [s]he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the [appellate] court.

Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders brief 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.

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

Here, Attorney Sulima has complied with the requirements set forth in

Anders by indicating that she has conscientiously examined the record and

determined that an appeal would be frivolous. Further, the record contains

a copy of the letter that Attorney Sulima sent to Jackson, informing her of

Attorney Sulima’s intention to withdraw and advising her of her right to

proceed pro se, retain counsel, and file additional claims. Finally, Attorney

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Sulima’s Anders Brief meets the standards set forth in Santiago.

Because Attorney Sulima has complied with the procedural requirements for

withdrawing from representation, we will independently review the record to

determine whether Jackson’s appeal is, in fact, wholly frivolous.

Jackson argues that she is entitled to credit for time served between

June 2, 2015, when bail was set, and March 11, 2016, when she was

sentenced. Anders Brief at 3.

Jackson’s claim implicates the legality of her sentence. See

Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa. Super. 2014)

(recognizing a claim based upon the failure to give credit for time served is a

challenge to the legality of a sentence).

Sentencing credit for time served is governed by 42 Pa.C.S.A. § 9760,

which states, in relevant part, the following:

(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.

42 Pa.C.S.A. § 9760(1) (emphasis added). “The principle underlying this

statute is that a defendant should be given credit for time spent in custody

prior to sentencing for a particular offense.” Commonwealth v. Hollawell,

604 A.2d 723, 726 (Pa. Super. 1992). However, “a defendant is not entitled

to receive credit against more than one sentence for the same time served.”

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Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014)

(citation omitted); see also Commonwealth v. Clark, 885 A.2d 1030,

1032 (Pa. Super. 2005) (stating that “[c]redit is not given … for a

commitment by reason of a separate and distinct offense.”) (citation

omitted).

Here, Jackson was sentenced in Wyoming County on October 14,

2015. At that time, she was awarded credit for her time served in Wyoming

County between February 24, 2015, and October 14, 2015. In the instant

case, Jackson is not entitled to receive credit for time served between June

2, 2015, and March 11, 2016, because during that time, Jackson was

serving a sentence on a separate and distinct offense in Wyoming County.

See Clark, supra; Hollawell, 604 A.2d at 726 (concluding that once the

defendant was credited for time served for a previous, separate conviction,

his “time in custody was no longer ‘a result of’ the charges” brought against

him in the second case).

Further, our independent examination of the record indicates that

there are no other claims of arguable merit. See Anders, 386 U.S. at 744-

45. Accordingly, we conclude that Jackson’s appeal is wholly frivolous, and

Attorney Sulima is entitled to withdraw as counsel.

Petition to Withdraw as counsel granted; judgment of sentence

affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/14/2017

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