J-S63020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

NATHAN ECKERT

                            Appellant               No. 291 MDA 2014


           Appeal from the Judgment of Sentence October 17, 2013
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000896-2013

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                      FILED NOVEMBER 13, 2014

       Appellant, Nathan Eckert, appeals from the judgment of sentence

entered on October 17, 2013. Additionally, counsel for Eckert has filed a

motion to withdraw as counsel and brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). After careful review, we vacate the judgment of sentence, deny

counsel’s petition to withdraw, and remand.

       On February 1, 2013, Eckert was charged at docket number 0896-

2013 with retail theft1 and simple assault2 in connection with the theft of

merchandise from the Home Depot store in Wyomissing. At the time of his


____________________________________________



  Retired Senior Judge assigned to the Superior Court.
1
  18 PA.CONS.STAT.ANN. § 3929(a)(1).
2
  18 PA.CONS.STAT.ANN. § 2701(a)(1).
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arrest, Eckert was on state parole at docket number 2895-2009. Eckert

remained in custody as straight bail was set and a state parole detainer was

lodged. On February 14, 2013, Eckert’s bail was modified to unsecured;

however, Eckert remained in custody due to the parole detainer at docket

number 2895-2009 pending disposition of the new charges.

        On October 17, 2013, Eckert entered a guilty plea at docket number

0896-2013 to retail theft and simple assault. On that same date, the trial

court sentenced Eckert to a period of 12 to 48 months’ imprisonment on the

retail theft and to a concurrent period of 6 to 12 months’ imprisonment on

the simple assault. At the time of sentencing, the trial court awarded Eckert

no credit for time served.

        Eckert filed a timely pro se post-sentence motion and appointed

counsel later filed a petition to file post-sentence motions nunc pro tunc,

which was granted. The trial court scheduled a hearing for December 5,

2013.    Prior to disposition of Eckert’s post-sentence motion, he filed a notice

of appeal to this Court on November 22, 2013, docketed at No. 2072 MDA

2013. Eckert’s counsel requested a continuance of the hearing on his post-

sentence motion, which the trial court granted. The trial court then

scheduled a new hearing. Eckert withdrew the appeal docketed at No. 2072

MDA 2013. On January 15, 2014, the trial court denied Eckert’s post-

sentence motion. This timely appeal followed.

        Eckert raised the following issues in his Concise Statement of Matters

Complained of on Appeal filed pursuant to Pa.R.A.P. 1925(b):

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      The [s]entencing [c]ourt imposed an illegal sentence when it
      failed to give the Defendant credit for thirteen (13) days[’] time
      served from February 1, 2013 to February 14, 2013, as the
      Defendant was being held on secured bail in Criminal Action No.
      2985-2009, resulting in an illegal sentence.

      The [s]entencing [c]ourt erred and abused its discretion when it
      failed to give the Defendant credit for thirteen (13) days[’] time
      served from February 1, 2013 to February 14, 2013, as
      Defendant was being held on secured bail in Criminal Action No.
      0896-2013 during that time period, and was not given credit for
      the thirteen (13) days toward his sentence following a parole
      revocation in Criminal Action No. 2985-2009, resulting in an
      abuse of discretion by the [s]entencing [c]ourt.

Concise Statement of Matters Complained of on Appeal, 3/12/14, at ¶¶ 1-2.

      Upon receipt of Eckert’s Rule 1925(b) statement, the trial court

reviewed Eckert’s sentence and determined that it should have applied credit

for time served pursuant to 42 PA.CONS.STAT.ANN. § 9760(1). The trial court

then entered an order on April 9, 2014, correcting its error by crediting

Eckert thirteen days’ time served from February 1, 2013, to February 14,

2013. The trial court, however, had no authority to revise the sentence in

this case.

      “Trial courts have the power to alter or modify a criminal sentence

within thirty days after entry, if no appeal is taken.” Commonwealth v.

Johnson, 860 A.2d 146, 152 (Pa. Super. 2004) (citation omitted),

disapproved of on other grounds by Commonwealth v. Robinson, 931

A.2d 15 (Pa. Super 2007) (en banc). If no appeal is taken pursuant to 42

PA.CONS.STAT.ANN. § 5505, “once the thirty-day period is over, the trial court

loses the power to alter its orders.” Commonwealth v. Walters, 814 A.2d

253, 255-256 (Pa. Super. 2002) (citations omitted). Once an appeal is

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taken, “the trial court has no jurisdiction to modify its sentence.” Id.

(citation omitted). Exceptions to these general rules exist. See Johnson,

860 A.2d 152. The exceptions are as follows:

      The court has the inherent power to modify a sentence in order
      to amend records, to correct mistakes of court officers or
      counsel’s inadvertencies, or to supply defects or omissions in the
      record .... This inherent power of the court to correct obvious
      and patent mistakes is not eliminated by the expiration of the
      thirty-day appeal period. [O]nce an appeal is taken .... the trial
      court may reconsider its sentence, so long as a motion for
      reconsideration was timely filed with, and expressly granted by
      the trial court within the thirty-day time limit prescribed for filing
      a notice of appeal. The Commonwealth may pursue a correction,
      modification or increase in the originally imposed sentence
      [before] ... the right of appellate review has been exhausted or
      waived.... provide[d] that a motion to modify a sentence [is]
      filed with the sentencing court prior to obtaining appellate review
      of the sentence.

Id., at 152-153 (citations and internal quotation marks omitted; some

brackets added).

      Here, the trial court was divested of its jurisdiction as more than thirty

days had elapsed since judgment of sentence was imposed in October 2013.

None of the exceptions to the general rule existed. Thus, the order entered

on April 9, 2013, is a legality nullity as the trial court lacked jurisdiction to

modify its sentence. Before us for review is only the judgment of sentence

imposed on October 17, 2013.

      Counsel for Eckert, Brandon Pack, Esquire, has filed a petition to

withdraw as counsel and a corresponding Anders/Santiago brief, asserting

that Eckert has no non-frivolous issues to pursue on direct appeal. This



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Court first must pass upon counsel’s petition to withdraw before reviewing

the merits of the any potential issues that Eckert might present on appeal.

See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007 (en

banc). Prior to withdrawing as counsel under Anders, counsel must file a

brief that meets the requirements established by our Supreme Court in

Santiago.

     The Pennsylvania Supreme Court has articulated the procedure to be

followed when court-appointed counsel seeks to withdraw from representing

an appellant on direct appeal:

     [I]n the Anders brief that accompanies court-appointed
     counsel’s petition to withdraw, counsel must: (1) provide a
     summary of the procedural history and facts, with citations to
     the record; (2) refer to anything in the record that counsel
     arguably believes supports the appeal; (3) set forth counsel’s
     conclusion that the appeal is frivolous; and (4) state counsel’s
     reasons for concluding that the appeal is frivolous. Counsel
     should articulate the relevant facts of record, controlling case
     law, and/or statutes on point that have led to the conclusion that
     the appeal is frivolous.

978 A.2d at 361 (Pa. 2009).

     We note that Attorney Pack has complied with all of the requirements

of Anders as articulated in Santiago. Additionally, Attorney Pack confirms

that he sent a copy of the Anders brief to Eckert as well as a letter

explaining to him that he has the right to proceed pro se or the right to




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retain new counsel.3         A copy of the letter is appended to Attorney Pack’s

petition, as required by this Court’s decision in Commonwealth v.

Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that “to

facilitate appellate review, … counsel must attach as an exhibit to the

petition to withdraw filed with this Court a copy of the letter sent to

counsel’s client giving notice of the client’s rights.” Id., at 749 (emphasis in

original). See also Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.

Super. 2010) (noting Santiago “did not abrogate the notice requirements

set forth in Millisock”).

        Our   review    of    Attorney     Pack’s      petition     to   withdraw     and     the

accompanying       brief     demonstrates           that   he   has      complied    with     the

Anders/Santiago requirements.

        Having passed upon the procedural requirements under Anders and

Santiago, we now must conduct an independent review of the record to

determine whether, as Attorney Pack claims, this appeal is wholly frivolous,

or if there are meritorious issues for Eckert to pursue before this Court. See

Santiago, 978 A.2d at 355 (“[T]he court – not counsel – then proceeds,

after a full examination of all the proceedings, to decide whether the case is

wholly    frivolous.   If    it   so   finds   it    may    grant     counsel’s     request    to

withdraw[.]“). We begin with the issues presented by Attorney Pack.

____________________________________________


3
    Eckert has not responded to the petition to withdraw as counsel.



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        In his Anders/Santiago brief, Eckert raises nearly identical issues as

in his Rule 1925(b) statement:

        The [s]entencing [c]ourt imposed an illegal sentence when it
        failed to give the Defendant credit for thirteen (13) days time
        served from February 1, 2013 to February 14, 2013, as the
        Defendant was being held on secured bail in Criminal Action No.
        0896-2013 during that time period, and was not given credit for
        the thirteen (13) days toward his sentence following a parole
        revocation in Criminal Action No. 2985-2009, resulting in an
        illegal sentence.

        The [s]entencing [c]ourt erred and abused its discretion when it
        failed to give the Defendant credit for thirteen (13) days time
        served from February 1, 2013 to February 14, 2013, as
        Defendant was being held on secured bail in Criminal Action No.
        0896-2013 during that time period, and was not given credit for
        the thirteen (13) days toward his sentence following a parole
        revocation in Criminal Action No. 2985-2009, resulting in an
        abuse of discretion by the [s]entencing [c]ourt.

Anders Brief, at 6. In a footnote to his Statement of Questions Involved

Eckert states “all the issues raised in Appellant’s Concise statement were

resolved when the [t]rial [c]ourt issued an amended sentencing order on

April 9, 2014, as such Appellant’s counsel will set forth the issues for this

Honorable Court to determine whether any non-frivolous issues exist.” Id.4

        A challenge to the trial court’s “failure to award credit for time served

prior to sentencing, … involves the legality of sentence. A claim challenging

the legality of a sentence is appealable as of right.” Commonwealth v.

Miller, 655 A.2d 1000, n.1 (Pa. Super. 2004) (emphasis omitted). As such

we will review Eckert’s first claim.
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4
    We have previously determined this order to be a legal nullity.



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     Our standard of review is well-settled.

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge, and a sentence will not be disturbed on appeal
     absent a manifest abuse of discretion. In this context, an abuse
     of discretion is not shown merely by an error of judgment.
     Rather, the appellant must establish, by reference to the record,
     that the sentencing court ignored or misapplied the law,
     exercised its judgment for reasons of partiality, prejudice, bias
     or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Ford, 947 A.2d 1251, 1252 (Pa. Super. 2008) (citation

omitted). The sentencing code provides:

     § 9760. Credit for time served

     After reviewing the information submitted under section 9737
     (relating to report of outstanding charges and sentences) the
     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 conduct on
           which such a charge is based. Credit shall include credit
           for the time spent in custody prior to trial, during
           trial, pending sentence, and the pending resolution
           of an appeal.

42 PA.CONS.STAT.ANN. § 9760(1) (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.” Commonwealth v.

Fowler, 930 A.2d 586, 595 (Pa. Super. 2007) (citation omitted).

     “[A]ll time served by a parole violator while awaiting disposition on

new charges must be credited to the original sentence if he or she remains

in custody solely on a Board detainer.” Commonwealth v. Mann, 957 A.2d



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746, 751 (Pa. Super. 2008). Here, Eckert remained in custody from February

14, 2013, through October 17, 2013, a period of 245 days, solely on a Board

detainer, as the bail conditions on the new charges at No. 0896-2013 had

been lifted on February 14, 2013, and disposition did not occur until October

17, 2013. Eckert was entitled to credit on his original sentence, docketed at

2895-2009 for the 245 days. See Anders/Santiago Brief, at 26, n. 10 (“It

must be noted that the Appellant received credit for two hundred forty-five

days timed served, dating from February 14, 2013 through October 17,

20135, toward the parole violated on Criminal Docket 2985-2009.”).

       Eckert does not take issue with the trial court’s application of credit

thereunder. Rather, Eckert claims that he is further entitled to credit for time

served at docket number 0896-2013 for 13 days from February 1, 2013, to

February 13, 2013. We agree.

       “If the defendant is incarcerated prior to disposition, and has both a

detainer and has failed for any reason to satisfy bail, the credit must be

applied to the new sentence by the sentencing court.” Mann, 957 A.2d at

751. Eckert was incarcerated on February 1, 2013, on new criminal charges.

Straight bail was set at docket number 0896-2013 and a state parole

detainer was lodged at docket number 2895-2009. Eckert was thus unable

to satisfy the conditions of bail. On February 14, 2013, Eckert’s bail was

____________________________________________


5
  Eckert was not awarded any credit at docket number 2895-2009 for any
time served from February 1, 2013, through February 13, 2013.



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modified to unsecured; however, Eckert remained in custody due to the

parole detainer, pending disposition of the new charges. Thus, Eckert is

entitled to credit for the 13 days’ time-served from February 1, 2013, to

February 13, 2013. The trial court erred in failing to apply credit at the time

of sentencing.

       Based upon our findings, we are compelled to deny counsel’s petition

to withdraw as our independent review determined that Eckert’s appeal is

not wholly frivolous. A meritorious issue exists with respect to the

application of credit for time-served, which affects the legality of Eckert’s

sentence. Accordingly, we vacate Eckert’s judgment of sentence and remand

for re-sentencing in accordance with this memorandum. On remand,

Attorney Pack shall continue to represent Eckert.

       Judgment of sentence vacated. Petition to withdraw as counsel denied.

Case   remanded     for   proceedings   consistent   with   this   memorandum.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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