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[U] Commonwealth v. Armstrong

Superior Court of Pennsylvania

February 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DARRELL FELTON ARMSTRONG Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated September 26, 2012 In the Court of Common Pleas of Adams County Criminal Division at Nos.: CP-01-CR-0000938-2008 CP-01-CR-0001184-2011

BEFORE: BOWES, J., WECHT, J., and PLATT, J. [*]

MEMORANDUM

WECHT, J.

Darrell Felton Armstrong ("Armstrong") appeals from the September 26, 2012 order denying his petition pursuant to the Post-Conviction Relief Act ("PCRA").[1] We affirm.

The factual and procedural history of this case is lengthy and dense. On or about December 18, 2007, Armstrong was placed in the Accelerated Rehabilitative Diversion ("ARD") program in connection with case number CP-01-CR-1077-2007 (hereinafter, "CR-1077-2007"), in which Armstrong pleaded guilty to various counts related to driving under the influence of, and possessing, marijuana.[2] However, on September 19, 2008, Armstrong was removed from the ARD program due to new charges related to the sale of marijuana. See Affidavit of Probable Cause, 8/7/2008, at 1. On December 30, 2008, in case number CP-01-CR-938-2008 (hereinafter, "CR-938-2008"), Armstrong pleaded guilty to delivery of a controlled substance as an ungraded felony, manufacture of a controlled substance as an ungraded felony, [3] and endangering the welfare of a child as a felony of the third degree.[4] See Order, 1/6/2009, at 1.

On February 23, 2009, Armstrong was sentenced in both cases. At CR-1077-2007, Armstrong was sentenced to six months in the Intermediate Punishment Program ("IPP"), with 72 hours of that sentence to be served by way of incarceration and the remainder to be served in probationary phases of IPP. PCRA Court Opinion ("P.C.O."), 9/26/2012, at 6. At CR-938-2008, Armstrong was sentenced to sixty months' IPP on each count, with twelve months to be served incarcerated, and the remainder to be served on probationary phases of the program. See Order, 3/6/2009, at 1. The sentences on each count at CR-938-2008 were set to run concurrently, and the overall sentence was set to run concurrently with the sentence at CR-1077-2007. Id. at 2.

On March 15, 2009, Armstrong properly reported to the Adams County Prison to serve the incarceration portion of his sentences. However, Armstrong tested positive for marijuana on June 3, 2009, in connection with a work release program. On June 12, 2009, the Commonwealth filed a motion to revoke intermediate punishment in both cases. See Motion to Revoke Intermediate Punishment, 6/12/2009, at 1. Armstrong was held without bail in both cases pending his revocation hearing. On September 10, 2009, following Armstrong's acknowledgement that he had violated his sentence and his waiver of a revocation hearing, Armstrong's IPP was revoked and he was resentenced in both cases.

At CR-1077-2007, Armstrong was resentenced to 177 days' confinement on one charge under 75 Pa.C.S. § 3802(d)(1), while the remaining charges were withdrawn. The sentencing court then gave Armstrong credit for the 177 days he spent in the Adams County Prison from March 15, 2009, through September 10, 2009. Armstrong's sentence at CR-1077-2007 was, in effect, immediately satisfied by Armstrong's prior credit.

At CR-938-2008, Armstrong was resentenced on each of the three counts to serve no less than eleven and one-half to twenty-three months' partial confinement at the Adams County Correctional Complex, with concurrent terms of five years in the probationary phases of IPP. The sentences on each charge at CR-938-2008 were set to run concurrently.

On September 10, 2010, following a year of incarceration, Armstrong was released to serve the remainder of his probationary sentence. However, on November 28, 2011, Armstrong was arrested in connection with a complaint that he and his daughter went hunting with rifles on a neighbor's property without permission. See Affidavit of Probable Cause, 11/29/2011, at 1 (unpaginated). On December 5, 2011, as a result of Armstrong's arrest in case CP-01-CR-1184-2011 (hereinafter, "CR-1184-2011"), the district attorney submitted a motion to revoke his IPP at CR-938-2008 for a second time. See Commonwealth's Motion to Revoke Intermediate Punishment, 12/6/2011, at 1 (unpaginated). On December 8, 2011, the court ordered Armstrong held without bail pending both the resolution of the new charges against him and a hearing on revocation at CR-938-2008. See Order, 12/8/2011, at 1 (unpaginated).

At CR-1184-2011, Armstrong entered an open guilty plea on February 27, 2012, to one count of persons not to possess firearms graded as a felony in the second degree, 18 Pa.C.S. § 6105(a), and one count of unlawful taking or possession of game graded as a summary offense, 34 Pa.C.S. § 2307(a). As a result of Armstrong's open guilty plea and acknowledgement that he had violated the terms of his sentence, his IPP sentence at CR-938- 2008 was revoked for a second time on April 19, 2012.[5] See Order, 4/24/2012, at 1 (unpaginated). Armstrong's "acknowledgement [was] open and without any agreement as to re-sentencing." Id. On each of the three counts at CR-938-2008, Armstrong was sentenced to "no less than two years['], nor more than five years[']" incarceration. Id. Those sentences were set to run concurrently with one another. Additionally, Armstrong received 510 days of credit against this sentence. Specifically, that included: (1) the 366 days that Armstrong served in the Adams County Prison from September 8, 2009, until his release on September 10, 2010; and (2) the 144 days Armstrong was incarcerated in the same location following his arrest for the charges at CR-1184-2011.[6] See Violation of IPP Worksheet, 5/7/2012, at 2.

At CR-1184-2011, Armstrong was sentenced to two to four years' incarceration on the possession of a firearm charge, and was ordered to pay various fines related to the illegal taking of game. See Order, 9/24/2012, at 1-2 (unpaginated). This sentence was set to run consecutively to the sentence imposed at CR-938-2008. The record indicates that Armstrong did not seek a direct appeal from his re-sentencing in either case.

On August 7, 2012, Armstrong filed timely PCRA petitions in both CR-938-2008 and CR-1184-2011, alleging various theories of illegal sentencing and ineffective assistance of counsel. See Armstrong's PCRA Petition, 8/7/2012, at 1-3. On September 26, 2012, the PCRA court denied Armstrong's PCRA petition. See Order, 9/26/2012, at 1 (unpaginated). That same day, the PCRA court also issued ...


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