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[U] Commonwealth v. Armstrong

Superior Court of Pennsylvania

February 10, 2014



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




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 an opinion in connection with its denial of Armstrong's petition. See PCRA Opinion, 9/26/2012, at 10.

Armstrong filed a timely pro se notice of appeal on October 15, 2012.[7]On October 23, 2012, the PCRA court ordered Armstrong to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and, in the same order, stated that Armstrong's court-appointed counsel would represent Armstrong on appeal. See Order, 10/23/2012, at 1 (unpaginated). Armstrong filed a pro se Rule 1925(b) statement on November 9, 2012. On November 21, 2012, original PCRA counsel was replaced. See Order, 11/21/2012, at 1. In the same order, the PCRA court provided new counsel with twenty days from the entry of the order to file a supplemental Rule 1925(b) statement. Id. On December 11, 2012, new counsel timely complied. See Supplemental Concise Statement, 12/11/2012, at 1 (unpaginated). On December 13, 2012, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Armstrong's brief before this Court lists five issues for our consideration. However, Armstrong devotes the entirety of his argument to the discussion of this single issue:[8]

Whether the [PCRA court] committed an error of law in finding that additional credit was not due to [Armstrong] and in finding that [Armstrong's] counsel at sentencing was not ineffective for failing to correctly ascertain the additional credit due to [Armstrong] on case No. CP-01-CR-938-2008 for time served at Adams County Adult Correctional Complex from March 15, 2009[, ] until September [10], 2009 (177 days).

Brief for Armstrong at 4. Armstrong's lone developed issue consists of two distinct claims: (1) that Armstrong is owed additional credit for time served pursuant to his sentence at CR-938-2008; and (2) that Armstrong's sentencing counsel was ineffective for failing to recognize this discrepancy.

We begin with Armstrong's claim that he is owed further credit for time served. Specifically, Armstrong asserts that he is owed credit in case CR-938-2008 "for time he spent incarcerated [from] March 15, 2009[, ] to September [10], 2009." Brief for Armstrong at 13. "Our standard of review of a trial court's denial of PCRA relief is limited to determining whether the order is supported by the record evidence and is free of legal error." Commonwealth v. Fowler, 930 A.2d 586, 590 (Pa.Super. 2007). "A challenge to the trial court's failure to award credit for time served prior to sentencing involves the legality of sentence and is cognizable under the PCRA." Id. (quoting Commonwealth v. Menezes, 871 A.2d 204, 207 (Pa.Super. 2005)).

The statutory provision attendant to the revocation of county intermediate punishment states, in relevant part, as follows:

§ 9773. Modification or revocation of county intermediate punishment sentence
(b) Revocation.-The court may revoke a sentence of county intermediate punishment upon proof of a violation of specific conditions of the sentence. Upon revocation and subject to section 9763(d), the sentencing alternatives available to the court shall be the same as the alternatives available at the time of initial sentencing.

42 Pa.C.S. § 9773 (emphasis added). Additionally, the Pennsylvania Sentencing Guidelines "do not apply to sentences imposed as a result of the following: . . . revocation of probation, intermediate punishment or parole." 204 Pa. Code § 303.1(b); see Commonwealth v. Philipp, 709 A.2d 920, 921-22 (Pa.Super. 1998).

With reference to credit for time served, the Pennsylvania Sentencing Code[9] provides as follows:

§ 9760. Credit for time served
[T]he 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 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. § 9760 (emphasis added). "The principle underlying section 9760 is that a defendant should be given credit for time spent in custody prior to sentencing for a particular offense." Fowler, 930 A.2d at 595.

While a defendant should receive "credit for any days spent in custody prior to the imposition of sentence, " such credit is only awarded "if such commitment is on the offense for which sentence is imposed. Such credit is not given for a commitment by reason of a separate and distinct offense." Commonwealth v. Miller, 655 A.2d 1000, 1002-03 (Pa.Super. 1995) (quoting Commonwealth ex rel. Bleecher v. Rundle, 217 A.2d 772, 774 (Pa.Super. 1966)). Thus, once a defendant has received credit for time served towards one criminal charge at sentencing, that same credit is not applicable towards a second, distinct criminal charge. See Commonwealth v. Frank, 398 A.2d 663, 675 n.10 (Pa.Super. 1979) ("Once credit is given against [one sentence], the time appellant served in custody is no longer 'a result of' the [other] charges . . . and thus cannot be credited against the sentence he received there."); see also Commonwealth v. Hollawell, 604 A.2d 723, 726 (Pa.Super. 1992) (applying the reasoning of Frank when the defendant was charged and sentenced in connection with two separate criminal incidents). In Commonwealth v. Merigris, 681 A.2d 194 (Pa.Super. 1996), this Court held that the reasoning of Frank and Hollawell applied to the terms of section 9760.[10] Merigris, 681 A.2d at 195 ("The operative rule, both in Frank and in Hollawell, is that a defendant should receive credit only once for time served before sentencing.").

Guided by these legal principles, we turn to Armstrong's claim. The thrust of Armstrong's argument is as follows:

[Armstrong's] sentences in CR-1077-2007 and CR-938-2008 were directed by the [sentencing court] to run concurrently. If [Armstrong] wasn't revoked until September 8, 2009[, ] then he was subject to the prior sentencing order issued February 23, 2009. Thus, all of the time [Armstrong] spent incarcerated [from his arrival on March 15, 2009] until issuance of the resentencing orders on September 8, 2009[, ] must be credited on both CR-1077-2007 and [CR-] 938-2008.

Brief for Armstrong at 14-15 (citation modified). We disagree. Armstrong's argument misstates the standards for resentencing defendants who are revoked from IPP.

Armstrong began serving the incarceration portion of his sentences at CR-1077-2007 and CR-938-2008 on March 15, 2009. Armstrong's IPP sentences were revoked when the sentencing court entered its orders on September 8, 2009.[11] Upon revocation, the sentencing court was permitted to entertain any sentencing alternatives that initially were available to it in both CR-1077-2007 and CR-938-2008. See 42 Pa.C.S. § 9773(b). Therefore, any prior sentencing terms setting Armstrong's sentences in both cases to run concurrently were not binding upon the sentencing court at resentencing. As of the resentencing, 177 days had elapsed since Armstrong reported to the Adams County Prison to serve the incarceration portion of his IPP sentence. The sentencing court chose to use Armstrong's 177 days of incarceration to fulfill his sentence at CR-1077-2007. Once that time had been assigned to satisfy one sentence, it was no longer available to defray Armstrong's sentence at CR-938-2008. See Hollawell, 604 A.2d at 726 ("The absurdity of appellant's case is clear. Following his reasoning, appellant would receive a windfall on sentencing for a completely unrelated crime."). Those 177 days, once applied to the new sentence at CR-1077-2007, meant that Armstrong's confinement could no longer be considered the "result of" the charges at CR-938-2008 under section 9760(1). See Merigris, 681 A.2d at 195. Moreover, under the clear terms of subsection 9760(4), Armstrong was entitled only to credit for time served "that ha[d] not been credited against another sentence." 42 Pa.C.S. § 9760(4).

The sentencing court was free to craft an alternative sentence following revocation, and chose to structure Armstrong's sentences in such a way that the 177 days he spent incarcerated was used solely to satisfy his sentence at CR-1077-2007. The legal precepts recited above make clear that it was within the sentencing court's discretion to do so. Accordingly, we conclude that Armstrong received full credit for the time that he spent incarcerated prior to resentencing.[12] Therefore, it was neither an abuse of discretion nor legal error for the PCRA court to deny Armstrong's claim that he was owed more credit for time served at CR-938-2008.

We turn to Armstrong's second claim alleging ineffective assistance of counsel ("IAC"). The only ground upon which Armstrong predicates his IAC claim is that defense counsel failed to ascertain "the correct amount of credit [for time already served] either before the date of sentencing or on the date of sentencing." Brief for Armstrong at 17. As demonstrated above, there was no error in the credit Armstrong received for time served. "[C]ounsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Millward, 830 A.2d 991, 994 (Pa.Super. 2003) (citing Commonwealth v. Thomas, 783 A.2d 328, 332-33 (Pa.Super. 2001)). Because Armstrong's claim that he was owed more credit at sentencing is meritless, Armstrong's IAC allegation also fails.

Order affirmed.

Judgment Entered.

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