J-S77024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER MICHAEL LOPEZ

                            Appellant                 No. 603 EDA 2014


                 Appeal from the PCRA Order February 4, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0007330-2011


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 22, 2014

        Christopher Michael Lopez appeals from the order entered in the Court

of Common Pleas of Delaware County denying his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.        We

affirm.

        On February 15, 2012, Lopez entered into a negotiated plea

agreement. Pursuant to this agreement, the trial court sentenced Lopez to

1-2 years’ imprisonment for possession of a controlled substance with an

intent to deliver (“PWID”) (marijuana)1 and 30 to 60 months’ imprisonment

for PWID (cocaine).2 The sentences were to run concurrent to each other.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(30).
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Pursuant to Lopez’s request, the trial court ordered that he report to prison

by 6:00 p.m. on March 9, 2012.

      Lopez did not report on March 9th. On February 18, 2012, three days

after the Pennsylvania court sentenced him, Lopez was arrested in the state

of Delaware for drug-related offenses.     The Delaware authorities did not

release him. On September 20, 2012, the Delaware court sentenced Lopez

to a five-year term of imprisonment.

      In November 2012, the Commonwealth of Pennsylvania lodged a

detainer against Lopez.   At this time, Lopez had not started serving the

Pennsylvania sentence.

      On February 11, 2013, Lopez filed a PCRA petition in Pennsylvania

alleging his guilty plea was involuntary and, on May 17, 2013, Lopez filed a

motion for credit for time served, alleging he was entitled to credit for time

served in Delaware from February 18, 2012 to September 20, 2012.

      On June 4, 2013, the trial court issued an order finding the PCRA

petition defective and requiring Lopez to file an amended PCRA petition. On

October 11, 2013, Lopez filed an amended petition, alleging he was entitled

to credit for time served in Delaware from November 21, 2012, the date the

Commonwealth of Pennsylvania lodged the detainer. He did not seek credit

for the time served from February 18, 2012 through September 20, 2012.

      After a February 4, 2014 hearing, the PCRA court denied the petition.

Lopez appealed and both he and the PCRA court complied with Pennsylvania

Rule of Appellate Procedure 1925.

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      Lopez raises the following issue on appeal:

          Whether or not the PCRA court abused its discretion or
          committed errors of law in denying the Appellant’s PCRA
          petition in the nature of credit for time from the date the
          Commonwealth of Pennsylvania lodged its detainer against
          him while incarcerated?

Appellant’s Brief at 4 (capitalization deleted). Lopez’s claim lacks merit.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley,    21   A.3d   1238   (Pa.Super.2011)    (citing   Commonwealth       v.

Morales, 701 A.2d 516, 520 (Pa.1997)).

      The Pennsylvania statute governing credit for time served provides:

          (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.




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       This statute requires that a defendant receive credit against a

sentence where the defendant is “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” or 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.” 42 Pa.C.S. § 9760. The time Lopez spent

in custody in Delaware was not the result of the criminal charge in

Pennsylvania or a result of the conduct on which the Pennsylvania charge

was based.      Further, the acts underlying the charges in Delaware did not

occur prior to his arrest in Pennsylvania.3

       Commonwealth v. Smith, 853 A.2d 1020 (Pa.Super.2004), relied on

by Lopez, is inapposite. Smith was arrested on March 30, 2001 and released

on bail.   On April 9, 2001, the Allegheny County Court of Common Pleas

issued a warrant for Smith’s arrest because his March 30, 2001 conduct

violated a probation condition imposed in a prior sentence. Smith, 853 A.2d

at 1023. On April 16, 2001, Smith was arrested on unrelated charges. Id.



____________________________________________


3
  Further, if “at the time of sentencing,” a defendant is under the authority
of another sovereign, “the court may indicate that imprisonment under such
other authority shall satisfy or be credited against both the minimum and
maximum time imposed under the court's sentence.” 42 Pa.C.S. § 9761.
This section, however, is inapplicable because Lopez was not under the
authority of Delaware at the time the Pennsylvania court imposed its
sentence.




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He remained incarcerated, however, because of the detainer for the

probation violation.    Id.

      Smith maintained, and this Court agreed, that the time spent in prison

on the probation detainer should be credited against the sentence imposed

for the March 30, 2001 arrest. Smith, 853 A.2d at 1023. We reasoned the

incarceration due to the probation detainer was time “spent in custody as a

result-at least partially-of his March 30, 2001 arrest for gun and drug

charges.” Id. at 1025. We noted:

          [A]bsent Smith's March 30, 2001 arrest, he would not
          have been incarcerated for his prior firearms conviction
          because he was originally sentenced only to probation for
          that offense. Although his probation was the result of the
          prior firearms conviction, the time he spent in custody
          under the probation detainer was a result of the March 30,
          2001 arrest.

Id. We concluded: “Smith is entitled to have his sentence credited because

his pre-trial, probation detainer incarceration was time spent in custody as a

result of the firearms and controlled substance charges.” Id.

      Here, in contrast, Lopez’s arrest in Delaware, and subsequent

incarceration, was unrelated to his arrest and conviction in Pennsylvania and

was not the result of his Pennsylvania conviction and sentence. Accordingly,

the PCRA court did not err when it found Lopez was not entitled to credit

against his Pennsylvania sentence for time spent in prison for his Delaware

arrest.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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