Com. v. Taylor, B.

• Court: Superior Court of Pennsylvania
• Decided: October 8, 2021
• Docket: 348 EDA 2021
• Status: Unpublished

Opinion

J-S23009-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BREE TAYLOR : : Appellant : No. 348 EDA 2021

Appeal from the PCRA Order Entered January 14, 2021 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005266-2018

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 8, 2021

Bree Taylor appeals from the order, entered in the Court of Common

Pleas of Bucks County, denying her “Amended Petition for Relief Pursuant to

the Post-Conviction Relief Act Application for Time Credit” (hereinafter

Amended Petition). The court correctly interpreted the amended petition as

one filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546. See, e.g., Commonwealth v. Saunders, 226 A.3d 1019 (Pa.

Super. 2020) (recognizing that claim that trial court failed to award credit for

time served pursuant to 42 Pa.C.S.A. § 9760 cognizable under PCRA); see

also Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (holding

that claim that trial court failed to award credit for time spent in custody prior

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* Retired Senior Judge assigned to the Superior Court. J-S23009-21

to sentencing cognizable under PCRA). For the reasons set forth below, we

affirm the PCRA court’s order denying Taylor’s petition.

On June 25, 2018, Taylor was arrested while incarcerated in the Bucks

County Correctional Facility on unrelated charges.1 The instant charges2 stem

from Taylor’s involvement in the distribution of methamphetamine to other

inmates while serving her sentence on those charges. Bail was set for the

instant case but not posted. On April 2, 2019, Taylor pled guilty to five counts

of controlled substance or contraband by confined persons prohibited, two

counts of conspiracy, and one count each of possession of a controlled

substance or contraband by an inmate, and possession of a controlled

1 Taylor served sentences under dockets CP-39-CR-0001048-2017, CP-09-CR-

000625-2017, CP-09-CR-0007518-2017, and CP-09-CR-000424-2018. Taylor’s charges included: possession of drug paraphernalia, driving while operating privilege is suspended or revoked, possession of a controlled substance, possession with intent to deliver a controlled substance, possession of drug paraphernalia, possession of a controlled substance, forgery, access device fraud, theft by unlawful taking, and receiving stolen property.

2 In this matter, the Commonwealth originally charged Taylor with:ten counts of controlled substance or contraband by confined persons prohibited, see 18 Pa.C.S.A. § 5123(a); one count of possession of a controlled substance or contraband by an inmate, see 18 Pa.C.S.A. 5123(a.2); one count of possession of a controlled substance, see 35 P.S. § 780-113(a)(16); two counts of conspiracy, see 18 Pa.C.S.A. § 903; and, one count of solicitation of contraband or a controlled substance, see 18 Pa.C.S.A § 902. See Information, 9/18/18, at 1-5.

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substance.3 That same day, the trial court sentenced Taylor to a period of

four-and-one-half to nine years’ imprisonment, with the court ordering that

this sentence be served concurrently with her unrelated charges.4 No direct

appeal was filed, causing Taylor’s judgment of sentence to become final on

May 2, 2019. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3).

On March 11, 2020, Taylor filed a timely pro se PCRA petition requesting

time to be credited towards her sentence for the period of imprisonment while

she was in custody prior to sentencing. The court appointed Patrick J.

McMenamin, Jr., Esquire, who subsequently filed an amended petition on

August 7, 2020. Following an evidentiary hearing on November 5, 2020,

Taylor submitted a memorandum of law in support of her claims, and the

Commonwealth filed a response. On January 14, 2021, the PCRA court denied

Taylor’s amended petition, and on February 3, 2021, Taylor filed a notice of

appeal. Both Taylor and the PCRA court complied with Pa.R.A.P. 1925.

On appeal, Taylor argues that her trial counsel was ineffective for failing

to request credit for time served for the period of time between her arrest and

sentencing. Taylor argues that under subsection 9760(1), she is entitled to

3 N.T. Guilty Plea Hearing, 4/2/19, at 1, 22-24. The PCRA hearing transcript

indicates that charges 6-10 were withdrawn, however, the written guilty plea notes that these charges were nolle prossed. N.T. Guilty Plea Hearing, 4/2/19, at 18; Written Guilty Plea, 4/2/19.

4 N.T. Guilty Plea Hearing, 4/2/19, at 20-23.

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credit for time served for the days she spent incarcerated prior to the

imposition of sentence for the charges at issue in this case. Taylor argues

that denying her credit renders her sentence illegal under section 9760. See

Appellant’s Brief, at 4-5. We disagree.

The standard of review for the denial of a PCRA petition is well settled:

“On appeal from the denial of PCRA relief, our standard and scope of review

is limited to determining whether the PCRA court’s findings are supported by

the record and without legal error.” Commonwealth v. Medina, 92 A.3d

1210, 1214 (Pa. Super. 2014). This Court is limited to the findings of the

PCRA court, and the evidence of record, and must view these in a light most

favorable to the Commonwealth as the prevailing party. Id. The PCRA court’s

credibility determinations are binding on this Court when supported by the

record; however, with regard to the PCRA court’s legal conclusions, our

standard of review is de novo. Commonwealth v. Spotz, 18 A.3d 244, 259

(Pa. Super. 2011).

In order to succeed and be granted relief on a PCRA claim, Taylor must

prove, by a preponderance of the evidence, that her sentence resulted from

one of the circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). Taylor contends

that her counsel was ineffective for failing to request credit for time served

from her date of arrest to her sentencing, entitling her to relief under section

§ 9543(a)(2)(ii). Because Taylor’s claim presents a question of law, we must

apply a de novo standard of review. Spotz, supra.

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For an ineffective assistance of counsel claim, the court begins with the

presumption that counsel is effective. Commonwealth v. Cousar, 154 A.3d

287, 296 (Pa. 2017). “In order to obtain relief under the PCRA premised upon

a claim that counsel was ineffective, a petitioner must establish beyond a

preponderance of the evidence that counsel’s ineffectiveness ‘so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.’” Commonwealth v. Michaud, 70 A.3d

862, 867 (Pa. Super. 2013) (quoting Commonwealth v. Payne, 794 A.2d

902, 905 (Pa. Super. 2002)); see also 42 Pa.C.S.A. § 9543(a)(2)(ii).

Specifically, in order to be successful on an ineffectiveness claim, the appellant

must prove: (1) that the underlying claim has arguable merit, (2) that

counsel’s conduct was without a reasonable basis designed to effectuate the

appellant’s interest, and (3) that counsel’s ineffectiveness prejudiced the

appellant. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003).

When evaluating an ineffectiveness claim, the court need not analyze the

elements above in order; rather, “if a claim fails under any necessary element

of the ineffectiveness test, the court may proceed to that element first.”

Commonwealth v. Brown, 196 A.3d 130, 151 (Pa. 2018). Likewise,

“[c]ounsel will not be deemed ineffective for failing to raise a meritless claim.”

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).

Section 9760 of the Crimes Code governs credit for time served, and

states, in relevant part:

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(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.

* * *

(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) (emphasis added).

The purpose behind section 9760 is to allow defendants “credit for time

spent in custody before being sentenced for a given offense.”

Commonwealth v. Merigris, 681 A.2d 194, 194 (Pa. Super. 1996).

However, the case law has firmly established that courts should prevent

petitioners from receiving a “windfall on sentencing for a completely unrelated

crime.” Commonwealth v. Hollawell, 604 A.2d 723, 726 (Pa. Super. 1992).

Previous decisions have been clear and consistent with their intention to avoid

“deal[ing] in volume discounts.” Id. “Pursuant to 42 Pa.C.S.[A.] § 9760(4),

credit is to be awarded if, on the date of the defendant’s arrest on charges for

which [s]he is being sentenced, [s]he was already incarcerated for unrelated

charges for which [s]he was not given credit on any other sentence.”

Commonwealth v. Miller, 655 A.2d 1000, 1003 (Pa. Super. 1995)

(emphasis added); see also Commonwealth v. Clark, 885 A.2d 1030, 1032

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(Pa. Super. 2005).5 Subsection 9760(4) allows for time from separate charges

to be credited, but only if the time has not already been “credited against

another sentence.” Id., at § 9760(4).

Here, we find that the PCRA court’s analysis that Taylor was not entitled

to her requested relief is supported by the record and we discern no error of

law. See Medina, supra; see also PCRA Court Opinion, 3/9/21, at 6. We

agree with the PCRA court and conclude that the credit Taylor seeks would

result in a case of double counting and, therefore, the PCRA court properly

denied Taylor’s petition. See Hollawell, supra. The record shows that

during sentencing, the parties and the court intended and agreed to have

Taylor’s new sentence run concurrently with her previous sentences,

beginning on April 2, 2019, and not before.6 The time at issue—the

5 In Clark, this Court rejected the Appellant’s argument that his time was misapplied when it was credited to his parole sentence rather than the sentence for which he was incarcerated. This Court reasoned that the statute did not “compel the credit he [sought]” because the time had applied to the parole sentence and, therefore, the time had already been credited. Id. at 1032.

6 The sentencing transcript reflects Taylor’s and the Commonwealth’s mutual

intention and understanding:

The court: So[,] you understand this sentence will run consecutive to your back time?

[Defense Counsel]: Your Honor, the negotiation that we’re asking for is that it will begin today.

The court: Is that correct? (Footnote Continued Next Page)

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[Commonwealth Attorney]: That’s correct, Your Honor.

[Defense Counsel]: It will be effectively consecutive to time that she’s been in custody up until today and then concurrent—

The court: I know [t]hat—

[Defense Counsel]: I’m just saying that more for her benefit than for yours, Your Honor.

The court: Okay. That’s also a benefit because legally they’ll follow that[,] but the state’s position is that it has to be consecutive.

[Defense Counsel]: Yes, ma’am.

The court: . . . By the way, I do find that the plea is voluntarily, intelligently[,] and knowingly entered and [that Taylor] understands the consequences of pleading guilty. It’s effective today and concurrent with the sentence she’s now serving.

N.T. Guilty Plea Hearing, 4/2/19, at 20-21, 23-24 (emphasis added). As indicated, the parties intended and agreed to credit Taylor’s time served before sentencing to the previous charges on the prior dockets. Id. Because Taylor’s PCRA petition failed to allege that trial counsel violated a constitutional duty to consult with her concerning her right to serve the challenged period concurrently to the prior dockets, she has failed to preserve this claim before the PCRA court. See Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009) (issues of constitutional dimension are waived if not raised in trial court; new and different theories of relief may not be successfully advanced for first time on appeal); see also Pa.R.A.P. 302. Additionally, Taylor’s statement of errors complained of on this appeal did not fairly suggest any claim that trial counsel was ineffective for not consulting with her concerning her right to serve concurrent sentences. See Rule 1925(b) Statement, 2/24/21. Accordingly, Taylor has also waived this issue under Pa.R.A.P. 1925(b)(4)(vii). See Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not included in the Statement . . . are waived”); see also Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016).

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period between Taylor’s arrest and sentencing—has already been credited

towards Taylor’s original sentences at dockets CP-09-CR-0007518-2017 and

CP-09-CR-000424-2018, which sentences both fully encompass the relevant

time period. Indeed, Taylor never stopped receiving credit for the time she

was incarcerated on those original dockets. Therefore, Taylor’s time served

cannot be credited in the second instance on a set of unrelated charges, and

in contravention of the start date of her knowing, intelligent, and voluntary

plea. See Hollawell, supra; see also Miller, supra. Consequently, Taylor’s

underlying claim is meritless.

Taylor further argues that not allowing this time to count for both sets

of charges would “be to accept that concurrent sentences are prohibited.”7

Brief of Appellant, at 11. This argument misinterprets the statute by assuming

that concurrent and consecutive sentences are treated distinctly under section

9760. The statutory language does not address the type of sentence the

defendant receives with specificity; rather, it distinguishes if the time has been

credited to any other sentence, and whether or not the sentences are related.

See 42 Pa.C.S.A. § 9760.

Because Taylor’s underlying claim is meritless, she has failed to satisfy

the elements for an ineffective assistance of counsel claim. See Jones, ____________________________________________

7 We have already noted that Taylor waived her claim that trial counsel violated a constitutional duty to consult with her concerning her right to credit the at-issue time period toward both sentences via concurrent sentencing. See supra, at n.6. In fact, we are satisfied that Taylor agreed to a specific start date for her instant sentence when entering her plea, and the court found Taylor’s plea to be knowingly, intelligently, and voluntarily entered. Id.

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supra; see also Allen, supra. Accordingly, the PCRA court did not err in

denying Taylor PCRA relief. See Medina, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/8/2021

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