J-S70040-17


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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
         v.                                    :
                                               :
                                               :
MICHAEL ANTHONY BOWMAN                         :
                                               :
                Appellant                      :   No. 625 MDA 2017

              Appeal from the Judgment of Sentence August 29, 2016
                 In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-CR-0001942-2016


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 08, 2018

        Michael Anthony Bowman appeals, nunc pro tunc, from the judgment of

sentence imposed on August 29, 2016, in the Court of Common Pleas of

Dauphin County, following his guilty plea to one charge of simple assault.1

The trial court sentenced Bowman to a term of one to two years’ incarceration.

In this appeal, Bowman claims (1) plea counsel was ineffective; (2) the trial

court should have applied credit for time served to Bowman’s sentence; and

(3) the trial court was biased against Bowman when imposing sentence.

Based on the following, we affirm.

        The relevant facts and procedural history underlying this appeal are as

follows. Bowman was arrested and charged with one count of simple assault


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1   18 Pa.C.S. § 2701(a)(1).
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after he head-butted his wife during a domestic altercation.           Following

Bowman’s arrest, a parole detainer was issued in an earlier case where

Bowman had been convicted of the unauthorized use of automobiles 2 and

sentenced to a period of six to twenty-three months’ incarceration.         See

Docket No. CP-22-CR-0004001-2008. Bowman also failed to satisfy bail in

the simple assault case, and he remained incarcerated from March 14, 2016

to August 29, 2016. On July 13, 2016, Bowman entered an open guilty plea

to the charge of simple assault. On August 29, 2016, the trial court sentenced

Bowman to a term of one to two years’ incarceration for the simple assault

conviction. On that same date, the court also revoked Bowman’s parole at

Docket No. CP-22-CR-0004001-2008, credited Bowman’s entire period of

presentence incarceration to the back time remaining on his original sentence

for unauthorized use of automobiles, and closed the case. Bowman did not

file a direct appeal from the judgment of sentence in the present case.

        On October 24, 2016, Bowman filed a timely, pro se petition pursuant

to the Post Conviction Relief Act (“PCRA”)3, alleging (1) plea counsel was

ineffective because he induced Bowman to plead guilty to simple assault to

avoid the maximum sentence, which he received anyway; (2) plea counsel

was ineffective for failing to file a timely direct appeal; (3) Bowman’s sentence


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2   18 Pa.C.S. § 3928(a).

3   42 Pa.C.S. §§ 9541-9546.



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violated the Sentencing Guidelines; and (4) the trial court judge had a

personal bias against Bowman, which affected the court’s sentencing decision.

The PCRA court appointed counsel, who subsequently filed a motion to

withdraw and a Turner/Finley4 letter. The court denied counsel’s motion to

withdraw. On February 16, 2017, the court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss all claims except Bowman’s claim that plea counsel was

ineffective for failing to file a direct appeal. The court held an evidentiary

hearing on March 29, 2017, solely on that claim. After hearing testimony, the

court initially announced it was denying PCRA relief.      Following a break,

however, the court reopened the record and stated it was going to reinstate

Bowman’s direct appeal rights in light of additional evidence.      The court

entered a written order on March 29, 2017, reinstating Bowman’s post-

sentence and direct appeal rights. Bowman timely filed a notice of appeal on

April 6, 2017.5, 6 Bowman presents three issues for this Court’s review:

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4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

5 Bowman’s notice of appeal states he “appeals to the Superior Court of
Pennsylvania based on the Order entered on March 29, 2017, reinstating
[Bowman’s] Post-Sentence and Appellate Rights.” As reflected in the caption,
the appeal properly lies from the judgment of sentence entered on August 29,
2016. See Commonwealth v. Miller, 868 A.2d 578 (Pa. Super. 2005),
appeal denied, 881 A.2d 819 (Pa. 2005) (treating appeal as direct appeal,
nunc pro tunc, from judgment of sentence, where defendant captioned appeal
as one from PCRA court’s order reinstating defendant’s direct appeal rights
nunc pro tunc).

6 Bowman timely complied with the PCRA court’s order to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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      Whether trial counsel was ineffective?

      Whether [Bowman] received an excessive sentence when the trial
      court failed to properly apply time credit?

      Whether the trial court was biased when imposing [Bowman’s]
      sentence?

Bowman’s Brief at 6.

      In his first issue, Bowman argues plea counsel was ineffective for

coercing him into entering an involuntary guilty plea based on the possibility

of a maximum two-year sentence if he elected to proceed to trial. Bowman

asserts plea counsel falsely informed him he would receive a lesser sentence

if he pled guilty, and Bowman relied on that statement.

      As a preliminary matter, when a PCRA court grants a petitioner the right

to seek further direct review nunc pro tunc, the petitioner’s judgment of

sentence is no longer final and the PCRA court lacks jurisdiction to consider

the merits of any other claims for collateral relief. Commonwealth v. Harris,

114 A.3d 1, 6 (Pa. Super. 2015). Additionally, “as a general rule, a petitioner

should wait to raise claims of ineffective assistance of trial counsel until

collateral review.” Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).

In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

recognized two exceptions where a defendant may raise ineffective assistance

claims in post-trial motions or on direct appeal: (1) extraordinary cases where

the court, in the exercise of its discretion, determines that a claim of

ineffectiveness is both meritorious and apparent from the record; and (2)

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situations in which a defendant seeks to litigate multiple or prolix claims of

ineffectiveness where good cause is shown and the defendant makes a

knowing, voluntary, and express waiver of PCRA review. Id. at 577-78.

      Instantly, the PCRA court entered an order reinstating Bowman’s post-

sentence and direct appeal rights nunc pro tunc, which effectively removed

the case from the collateral review stage and restarted the clock on the direct

appeal process. Therefore, Bowman’s judgment of sentence was no longer

final and the court lost jurisdiction to rule on the other claims raised in

Bowman’s PCRA petition. See Harris, supra. Further, Bowman’s claims of

ineffective assistance do not fall into either of the Holmes exceptions. The

claims were not developed at the March 29, 2017 hearing. Bowman makes

no argument, and we do not conclude, that this case is so extraordinary as to

warrant direct review of his ineffectiveness claims under the first Holmes

exception. Likewise, Bowman has not made an express waiver of PCRA review

required under the second Holmes exception. Accordingly, we deny relief on

Bowman’s ineffective assistance of counsel claims without prejudice to his

right to pursue them under the PCRA following conclusion of the reinstated

direct appeal process.

      In his second issue, Bowman argues the trial court improperly applied

credit for his presentence period of incarceration to his parole revocation case

at Docket No. CP-22-CR-0004001-2008. Bowman asserts that pursuant to

Commonwealth v. Smith, 853 A.2d 1020 (Pa. Super. 2004), the court


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should have applied the credit to his new sentence for simple assault, since

his time spent in custody was at least partially the result of the simple assault

charge.

      “An attack upon the court’s failure to give credit for time served is an

attack    upon   the   legality   of   the   sentence   and   cannot   be   waived.”

Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004), appeal

denied, 868 A.2d 1197 (Pa. 2005).

          The scope and standard of review applied to determine the
          legality of a sentence are well established. If no statutory
          authorization exists for a particular sentence, that sentence
          is illegal and subject to correction. An illegal sentence must
          be vacated. In evaluating a trial court’s application of a
          statute, our standard of review is plenary and is limited to
          determining whether the trial court committed an error of
          law.

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (quoting

Commonwealth v. Leverette, 911 A.2d 998, 1001-02 (Pa. Super. 2006)).

      The Pennsylvania Sentencing Code governs credit for time served and

provides in relevant part:

          § 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 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.

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                                    *    *    *

         (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(1), (4).

      “[W]here an offender is incarcerated on both a Board [of Probation and

Parole] detainer and new criminal charges, all time spent in confinement must

be credited to either the new sentence or the original sentence.” Martin v.

Pennsylvania Bd. of Probation and Parole, 840 A.2d 299, 309 (Pa. 2003).

“[A] defendant is not entitled to receiv[e] credit against more than one

sentence for the same time served.” Commonwealth v. Ellsworth, 97 A.3d

1255, 1257 (Pa. Super. 2014) (citation omitted). “[S]uch ‘double credit’ is

prohibited both by the statutory language of Section 9760 and the principle

that a defendant be given credit only for time spent in custody…for a particular

offense.” Id. (citation omitted).

      At sentencing, Bowman did not object to the credit for time served being

applied to his back time on Case No. CP-22-CR-0004001-2008. Sentencing

Transcript, 8/20/2016 at 3. Nevertheless, this issue implicates the legality of

Bowman’s sentence and cannot be waived. See Davis, supra. Therefore,

we will proceed to review it.

      Following Bowman’s arrest for simple assault, a parole detainer was

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issued at Docket No. CP-22-CR-0004001-2008, where Bowman had previously

been convicted of unauthorized use of automobiles. Bowman failed to satisfy

bail for the simple assault charge. Consequently, he remained incarcerated

on both the parole detainer and the simple assault charge from March 14,

2016 to August 29, 2016.           The trial court presided over both Bowman’s

sentencing for simple assault and his parole revocation in the original case,

which involved a maximum sentence of twenty-three months.                      See

Commonwealth v. McDermott, 547 A.2d 1236 (Pa. Super. 1988) (stating

court of common pleas retains authority to grant and revoke parole when

offender is sentenced to maximum term of imprisonment of less than two

years). The trial court credited Bowman’s period of presentence incarceration

to the remaining backtime in Bowman’s parole revocation matter and closed

interest in that case. Bowman’s balance of backtime exceeded the time he

spent in custody awaiting sentencing.            Thus, pursuant to Martin, all time

Bowman spent in custody was “credited to either the new sentence or the

original sentence.” Id. at 309.7 At this juncture, if the trial court applied

credit to Bowman’s new sentence for simple assault, he would be the

beneficiary of a prohibited “double credit.” See Ellsworth, supra. Thus,


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7 Smith, supra, the sole case on which Bowman relies, is distinguishable. In
that case, the trial court had apparently failed to apply credit for time served
to the defendant’s new sentence or original sentence (for which the defendant
was on probation). Here, Bowman concedes, and the record indicates, that
the trial court applied credit in the parole revocation case for the period from
March 14, 2016 to August 29, 2016.

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Bowman’s second issue merits no relief.

      In his third issue, Bowman argues the trial court’s sentencing decision

was motivated by bias, as evidenced by several remarks the trial court judge

made at the guilty plea and sentencing hearings. Bowman further contends

the court failed to state on the record adequate reasons for the sentence

imposed.     Bowman’s third issue implicates the discretionary aspects of his

sentence. See Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011)

(explaining claim that sentence imposed was motivated by bias challenges

discretionary aspects of sentence); Commonwealth v. Dunphy, 20 A.3d

1215 (Pa. Super. 2011) (stating allegation that court failed to offer specific

reasons for sentence challenges discretionary aspects of sentence).

      A challenge to the discretionary aspects of a sentence is not absolute,

but rather, “must be considered a petition for permission to appeal.”

Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and

internal citation omitted). To reach the merits of such a claim, this Court must

determine:

         (1) whether the appeal is timely; (2) whether [the
         defendant] preserved [the] issue; (3) whether [the
         defendant’s] brief includes a concise statement of the
         reasons relied upon for allowance of appeal with respect to
         the discretionary aspects of sentence; and (4) whether the
         concise statement raises a substantial question that the
         sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).             “[I]ssues


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challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”     Commonwealth v. Cartrette, 83 A.3d

1030, 1042 (Pa. Super. 2013) (en banc).

      In the present case, Bowman did not challenge the discretionary aspects

of his sentence during the sentencing hearing or in a post-sentence motion

filed within ten days after the imposition of sentence. See Pa.R.Crim.P. 720

(A)(1). Further, after the PCRA court reinstated Bowman’s post-sentence and

direct appeal rights, Bowman also failed to file a post-sentence motion nunc

pro tunc raising his claims regarding the discretionary aspects of his sentence.

Therefore, those claims are waived. See Cartrette, supra. Accordingly, we

affirm the judgment of sentence.


      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/8/2018




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