J-S66033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
HECTOR VARGAS-TORRES,                      :
                                           :
                   Appellant               :           No. 606 MDA 2014

      Appeal from the Judgment of Sentence entered on February 18, 2014
                in the Court of Common Pleas of Luzerne County,
                 Criminal Division, No. CP-40-CR-0001748-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED OCTOBER 21, 2014

        Hector Vargas-Torres (“Vargas-Torres”) appeals from the judgment of

sentence entered after he pled guilty to assault by prisoner.1 Additionally,

Vargas-Torres’s    court-appointed   counsel,   John   Donovan,   Jr.,   Esquire

(“Attorney Donovan”), has filed a Petition to Withdraw as counsel and an

accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744

(1967). We grant Attorney Donovan’s Petition to Withdraw, and affirm the

judgment of sentence.

        On November 23, 2012, while Vargas-Torres was an inmate at the

State Correctional Institution at Retreat (“SCI-Retreat”), he stabbed a

correctional officer with a pen. At the time of the assault, Vargas-Torres was

serving a sentence of one to five years for his convictions of resisting arrest,



1
    See 18 Pa.C.S.A. § 2703(a).
J-S66033-14


disarming a law enforcement officer, and related charges (collectively

referred to as “the resisting arrest convictions”).

      In October 2013, Vargas-Torres pled guilty to assault by prisoner. On

February 6, 2014, the trial court sentenced Vargas-Torres to two to four

years in prison, to run consecutively to the sentence he was already serving

for the resisting arrest convictions.     In response, Vargas-Torres filed a

Motion for Credit for Time Served, seeking credit for the time he served in

SCI-Retreat from the date of the assault, November 23, 2012, to the date of

sentencing (a total of 440 days).       The trial court denied this Motion on

February 18, 2014, after which Vargas-Torres filed a timely Notice of Appeal.

      The trial court ordered Vargas-Torres to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and Vargas-Torres

timely complied.   Subsequently, Attorney Donovan filed with this Court an

Anders Brief and Petition to Withdraw as counsel, opining that the claim

that Vargas-Torres wished to raise on appeal was wholly frivolous and that

there are no other meritorious issues to be presented.2

      Before addressing Vargas-Torres’s issue on appeal, we must determine

whether Attorney Donovan has complied with the dictates of Anders and its

progeny in petitioning to withdraw from representation.          Pursuant to

Anders, when counsel believes that an appeal is frivolous and wishes to

withdraw from representation, he must do the following:

2
   Vargas-Torres did not retain alternate counsel for this appeal, nor did he
file a response to the Petition to Withdraw.


                                   -2-
J-S66033-14


      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record and
      interviewing the defendant, counsel has determined the appeal
      would be frivolous, (2) file a brief referring to any issues in the
      record of arguable merit, and (3) furnish a copy of the brief to
      defendant and advise him of his right to retain new counsel or to
      raise any additional points that he deems worthy of the court’s
      attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

      Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders brief 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 believes arguably 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).                     “Once

counsel has satisfied the Anders requirements, it is then this Court’s duty to

conduct its own review of the trial court’s proceedings and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006)

(citation and brackets omitted).

      Our review of Attorney Donovan’s Anders Brief and Petition to

Withdraw    reveals    that   he   has   complied   with   the   requirements   of

Anders/Santiago.         Additionally, Attorney Donovan has properly (1)



                                    -3-
J-S66033-14


provided Vargas-Torres with a copy of both the Anders Brief and Petition to

Withdraw; and (2) appended to the Petition to Withdraw a copy of the letter

that he sent to Vargas-Torres advising him of his right to retain new counsel,

proceed pro se, or raise any additional points that he deems worthy of this

Court’s attention.   Accordingly, we next examine the record to make an

independent determination of whether Vargas-Torres’s appeal is, in fact,

wholly frivolous.

      In the Anders Brief, Attorney Donovan explains that Vargas-Torres

wishes to challenge the sentencing court’s alleged failure to award him credit

for the 440 days that he served in custody prior to sentencing in the instant

case. See Anders Brief at 2. Vargas-Torres’s issue implicates the legality

of his sentence. See Commonwealth v. Johnson, 967 A.2d 1001, 1003

(Pa. Super. 2009).

      Section 9760 of the Sentencing Code governs credit for time served,

and provides, in relevant part, that “[c]redit 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.” 42

Pa.C.S.A. § 9760(1). “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.”        Commonwealth v.

Infante, 63 A.3d 358, 367 (Pa. Super. 2013) (emphasis added) (citing



                                 -4-
J-S66033-14


Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa. Super. 1995) (stating

that credit is not given for a commitment by reason of a separate and

distinct offense)).

      Here, Attorney Donovan, and the trial court in its Pa.R.A.P. 1925(a)

Opinion, correctly point out that (1) at the time of the assault in question,

Vargas-Torres was already incarcerated and serving his sentence on the

unrelated resisting arrest convictions; and (2) he was still serving that

sentence at the time he was sentenced in the instant case.          See Anders

Brief at 3; Trial Court Opinion, 5/15/14, at 2 (unnumbered). Moreover, the

sentencing court specifically fashioned Vargas-Torres’s sentence such that it

would not commence until he completed his sentence for the resisting arrest

convictions. See Trial Court Opinion, 5/15/14, at 2 (unnumbered) (stating

that “[o]ur intention was to have [Vargas-Torres] complete his [underlying]

sentence before he begins to serve the one imposed on February 6, 2014.”);

see also 18 Pa.C.S.A. § 2703(b) (mandating a consecutive sentence for an

offender convicted of assault by prisoner where the victim is a correctional

facility employee).    Accordingly, Vargas-Torres was clearly not entitled to

have this period of presentence incarceration applied towards his sentence

for assault by prisoner. See Infante, supra; Miller, supra.

      We    conclude   that   Vargas-Torres’s   issue   lacks   merit,   and   our

independent review discloses no non-frivolous issues that he could present




                                   -5-
J-S66033-14


on appeal. Accordingly, we grant Attorney Donovan permission to withdraw

under the precepts of Anders, and affirm the judgment of sentence.

     Petition to Withdraw as counsel granted; judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




                                -6-
