J-S33023-19 & J-S33024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES ROBERT OSTER, JR.                    :
                                               :
                       Appellant               :   No. 206 MDA 2019

       Appeal from the Judgment of Sentence Entered January 9, 2019
             In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0007017-2018

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES R. OSTER                             :
                                               :
                       Appellant               :   No. 207 MDA 2019

       Appeal from the Judgment of Sentence Entered January 9, 2019
             In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0003944-2018


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 07, 2019

       In these related cases,1 James R. Oster appeals from the judgment of

sentence imposed on January 9, 2019, in the Court of Common Pleas of


____________________________________________


1 The cases are related because they concern the same facts, the same
appellant, and raise the same issues. We note that the trial court issued a
single opinion on both cases and the parties filed identical briefs. Therefore,
we will dispose of these matters in one decision.
J-S33023-19 & J-S33024-19


Lancaster County. This follows his negotiated guilty pleas at case no. CP-36-

CR-0007017-2018 to two counts of possession with intent to deliver a

controlled substance, one count of conspiracy, and one count of criminal use

of a communications facility,2 and at case no. CP-36-CR-0003944-2018 to one

count each of terroristic threats, simple assault, and disorderly conduct.3 That

same day, in accordance with the terms of the plea agreement, the trial court

sentenced Oster to an aggregate term of fifteen to forty-eight months’

imprisonment. The instant, timely appeals followed.4 Appointed counsel has

filed an Anders brief along with a motion to withdraw as counsel in both cases.

After a thorough review of the submissions by the parties, relevant law, and

the certified record, we affirm and grant counsel’s petition to withdraw.5




____________________________________________


2   35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903 and 7512, respectively.

3   18 Pa.C.S.A. §§ 2706(a)(1), 2701(a)(3), 5503(a)(1).

4 Of relevance to this appeal, we note that Oster did not file a post-sentence
motion. In response to the trial court’s order, Oster filed timely concise
statements of errors complained of on appeal. Subsequently, the trial court
issued an opinion.

5 By order of June 19, 2019, this Court directed counsel to file either a brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349, 351 (Pa. 2009) accompanied by a petition to
withdraw, or a merits brief. Counsel complied with our order and filed a
petition to withdraw and an Anders brief on July 2, 2019. The Commonwealth
initially filed a brief in this matter, and on July 8, 2019, filed a letter stating it
would not file an additional brief.


                                           -2-
J-S33023-19 & J-S33024-19


      Counsel has filed an Anders brief, explaining there are no meritorious

issues. Therefore, we proceed “to make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact

wholly frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.

Super. 2015) (quotations and citation omitted). In so doing, we review not

only the issues identified by appointed counsel in the Anders brief, but

examine all of the proceedings to “make certain that appointed counsel has

not overlooked the existence of potentially non-frivolous issues.” Id. at 1249

(footnote omitted).

      We begin by noting,

      The standard of review when an Anders/McClendon brief has
      been presented is as follows:

            To be permitted to withdraw pursuant to Anders,
            counsel must: (1) petition the court for leave to
            withdraw stating that after making a conscientious
            examination of the record it has been determined that
            the appeal would be frivolous; (2) file a brief referring
            to anything that might arguably support the appeal,
            but which does not resemble a “no merit” letter or
            amicus curiae brief; and (3) furnish a copy of the brief
            to the defendant and advise him of his right to retain
            new counsel or raise any additional points that he
            deems worthy of the court’s attention.

      If these requirements are met, the Court may then evaluate the
      record to determine whether the appeal is frivolous.

Commonwealth v. McBride, 957 A.2d 752, 756-757 (Pa. Super. 2016)

(citations omitted).




                                      -3-
J-S33023-19 & J-S33024-19


      Because counsel has complied with the technical requirements of

Anders/McClendon, we will address the issues he raises therein as well as

conducting “a simple review of the record to ascertain if there appear on its

face to be arguably meritorious issues that counsel, intentionally or not,

missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272

(Pa. Super. 2018) (en banc).       In the Anders/McClendon brief, counsel

discusses the issues Oster sought to raise in this appeal: that the trial court

failed to award him proper credit for time served and that trial counsel was

ineffective for failing to raise this issue in a post-sentence motion.

      Oster contends that he received ineffective assistance of counsel.

Oster’s Brief, at 8-9. This ineffectiveness claim, however, is premature. In

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the Pennsylvania

Supreme Court reaffirmed the general rule first set forth in Commonwealth

v. Grant, 813 A.2d 726 (Pa. 2002), that “claims of ineffective assistance of

counsel are to be deferred to PCRA review; trial courts should not entertain

claims of ineffectiveness upon post-verdict motions; and such claims should

not be reviewed upon direct appeal.” Holmes, supra at 576. Although there

are three recognized exceptions to that general rule, no exception is applicable




                                      -4-
J-S33023-19 & J-S33024-19


here.6 Accordingly, Oster’s ineffective assistance of counsel claim is not

cognizable on direct appeal and must await collateral review.

       Oster’s underlying premise, that counsel waived Oster’s challenge to the

trial court’s alleged failure to award credit for time served on direct appeal

because counsel did not file a post-sentence motion, is incorrect. Moreover,

his claim that the trial court failed to award him credit for time served is belied

by the record.

       In its April 11, 2019 opinion, the trial court aptly disposes of Oster’s

challenge to his sentence as follows:

       [Oster’s] counsel did not raise [the issue of credit for time served]
       at sentencing or in a post-sentence motion. Pursuant to Pa.R.A.P.
       302(a), as a general rule, issues not raised in the lower court are
       waived and cannot be raised for the first time on appeal.
       However, challenges to the legality of a sentence cannot be
       waived. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa.
       Super. 2004)[, appeal denied, 875 A.2d 1074 (Pa. 2005)]. A
       challenge to the trial court’s failure to award credit for time spent
       in custody prior to sentencing—as in the instant case—implicates
____________________________________________


6 The Holmes Court recognized two exceptions: (1) where the trial court
determines that a claim of ineffectiveness is “both meritorious and apparent
from the record so that immediate consideration and relief is warranted[;]” or
(2) where the trial court finds “good cause” for unitary review, and the
defendant makes a “knowing and express waiver of his entitlement to seek
PCRA review from his conviction and sentence, including an express
recognition that the waiver subjects further collateral review to the time and
serial petition restrictions of the PCRA.” Holmes, supra at 564, 577 (footnote
omitted). A third exception was recently adopted by our Supreme Court for
“claims challenging trial counsel’s performance where the defendant is
statutorily precluded from obtaining PCRA review.” Commonwealth v.
Delgros, 183 A.3d 352, 361 (Pa. 2018) (“[W]here the defendant is ineligible
for PCRA review because he was sentenced only to pay a fine, we agree with
Appellant that the reasoning in Holmes applies with equal force to these
circumstances.”)

                                           -5-
J-S33023-19 & J-S33024-19


     the legality of sentence. Commonwealth v. Beck, 848 A.2d 987,
     989 (Pa. Super. 2004). Therefore, [Oster’s] claim is not waived
     and the [trial court] will address it below.

     In relevant part, the statutory provision 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.

     42 Pa.C.S.[A.] § 9760(1)

      “The decided cases have held generally that a defendant shall be
     given credit for any days spent in custody prior to the imposition
     of sentence, but only if such commitment is on the offense for
     which sentence is imposed. Credit is not given, however, for a
     commitment by reason of a separate and distinct offense.”
     Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa. Super.
     1995); see also Commonwealth v. Hollawell, 604 A.2d 723,
     725 (Pa. Super. 1992) (“The principle underlying [§ 9760] is that
     a defendant should be given credit for time spent in custody prior
     to sentencing for a particular offense.”).

     In Docket Number 3944-2018, the docket indicates bail was set
     and [Oster] was incarcerated on July 5, 2018. It further indicates
     that the 189 days between July 5, 2018 and January 9, 2019—the
     day upon which [Oster] was sentenced in the instant case—were
     credited toward [his] sentence. In Docket Number 70170-2018,
     the docket indicates bail was set on October 30, 2018, and the 72
     days between that date and January 9, 2019 were credited
     towards [Oster’s] sentence.

     Although it is not entirely clear from [Oster’s] 1925(b)
     [s]tatement, it appears to the [trial court] that [Oster] alleges the
     [c]ourt should have awarded time-credit from July 5, 2018 on
     both dockets. The “double credit” [Oster] alleges he is entitled to
     “is prohibited both by the statutory language of Section 9760 and
     by the principle that a defendant be given credit only for time

                                     -6-
J-S33023-19 & J-S33024-19


      spent in custody . . . for a particular offense.” Commonwealth
      v. Ellsworth, 97 A.3d 1255, 1257 ([Pa. Super.] 2014) (citations
      and quotation marks omitted); see also 42 Pa.C.S. § 9760(4).[a]
      Oster’s issue therefore lacks merit.

            [a] This provision provides: “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.”

Trial Court Opinion, 4/11/2019, at 2-3.        Our independent review of the

relevant law and the certified record confirms the trial court’s analysis. Oster’s

contention that his sentence is illegal is frivolous.

      Moreover, we have reviewed the record and found that any other

challenges to either the guilty plea or the sentence would also be frivolous.

Thus, because the certified record amply demonstrates there are no

meritorious issues on direct appeal, we affirm the judgment of sentence.

Additionally, we grant counsel’s motion to withdraw from representation.

      Judgment of sentence affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 8/7/2019



                                       -7-
