J-S79007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

VENIECE QUEEN

                      Appellant                No. 769 EDA 2016


        Appeal from the Judgment of Sentence February 9, 2016
           In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0001172-2002

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

VENIECE QUEEN

                      Appellant                No. 770 EDA 2016


        Appeal from the Judgment of Sentence February 9, 2016
           In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0001173-2002

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

VENIECE QUEEN

                      Appellant                No. 771 EDA 2016


        Appeal from the Judgment of Sentence February 9, 2016
           In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0001174-2002
J-S79007-16


COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

VENIECE QUEEN

                             Appellant                   No. 772 EDA 2016


            Appeal from the Judgment of Sentence February 9, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001435-2002


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED NOVEMBER 30, 2016

        Appellant, Veniece Queen, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following

revocation of her probation.            We vacate the judgment of sentence and

remand for resentencing.

        The relevant facts and procedural history of this case are as follows.

On June 27, 2002 Appellant pled guilty at four separate dockets to three

counts of forgery and one count of false statements (to obtain assistance

and food stamps).1          On that same date, the court sentenced Appellant to

concurrent terms of two (2) years’ probation for each offense. Appellant’s

initial probation violation resulted in the issuance of a bench warrant on

November 21, 2002. Appellant absconded and was detained approximately
____________________________________________


1
    18 Pa.C.S.A. § 4101(a)(1); 62 P.S. § 481(a).



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six years later. The court revoked Appellant’s probation on March 28, 2008,

and resentenced Appellant to concurrent terms of two (2) years’ probation

for each offense.         Following additional probation violations, the court

revoked     Appellant’s     probation     and    re-imposed   the   same   two-year

probationary sentence on March 26, 2010, and July 17, 2015. In September

2015, Appellant admitted to another technical violation of her probation.

The court issued a bench warrant, and Appellant was detained on December

9, 2015.     On February 9, 2016, the court held a Gagnon II2 hearing,

revoked Appellant’s probation at all dockets, and resentenced her to

concurrent terms of six (6) to twenty-four (24) months’ incarceration for

each offense. Appellant filed timely notices of appeal in each case on March

9, 2016.    The court ordered Appellant to file concise statements of errors

complained of on appeal per Pa.R.A.P. 1925(b).                  In lieu of concise

statements, Attorney Connors filed a Rule 1925(c)(4) statement of intent to

file an Anders3 brief in each case. This Court subsequently consolidated all

four cases on appeal. Attorney Foltz then entered his appearance and filed a

merits brief.

       Appellant raises one issue for our review:

____________________________________________


2
  Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973).
3
  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).



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         DID THE TRIAL COURT ERR IN SENTENCING [APPELLANT]
         TO SIX TO TWENTY FOUR MONTHS[’] INCARCERATION
         FROM THE DATE OF SENTENCING WITHOUT GIVING
         CREDIT FOR TIME SERVED FOR THE SIXTY DAYS
         INCARCERATED PRIOR TO THE SENTENCING HEARING
         FOR THE VIOLATION OF HER PROBATION?

(Appellant’s Brief at 5).

      Preliminarily, any issue not raised in a Rule 1925(b) statement is

generally waived for appellate review. Commonwealth v. Castillo, 585 Pa.

395, 888 A.2d 775 (2005). Here, revocation counsel filed Rule 1925(c)(4)

statements of intent to file an Anders brief in response to the court’s Rule

1925(b) order, so the court did not issue a Rule 1925(a) opinion addressing

any potential issues for appeal.   Despite the Rule 1925(c)(4) statements,

when appellate counsel subsequently entered his appearance, he filed a

merits brief. A merits brief, however, required a Rule 1925(b) statement to

preserve issues for appeal.     Ordinarily, counsel’s failure to file a Rule

1925(b) statement would constitute per se ineffectiveness and could require

this Court to remand to allow counsel to file a proper concise statement nunc

pro tunc. See Pa.R.A.P. 1925(c)(3). Nevertheless, Appellant’s sole issue on

appeal is a non-waivable challenge to the legality of her sentence, so

remand is unnecessary. See Commonwealth v. Johnson, 967 A.2d 1001

(Pa.Super. 2009) (stating trial court’s failure to award credit for time served

implicates legality of sentence); Commonwealth v. Bowser, 783 A.2d 348

(Pa.Super. 2001), appeal denied, 568 Pa. 733, 798 A.2d 1286 (2002)

(stating challenge to legality of sentence cannot be waived). Therefore, we

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will address the issue presented on appeal.

      Appellant argues she had been incarcerated for sixty days on a

probation detainer prior to her new sentence for the current technical

violation    of    probation.    Appellant   asserts   that   sixty-day   period   of

incarceration related only to the probation violation. Appellant contends the

court failed to award her proper credit for time served on her probation

detainer.     Appellant concludes this Court should vacate the judgment of

sentence and remand for resentencing. We agree.

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)

(en banc).        Credit for time served is governed by the Sentencing Code in

relevant part as follows:

            § 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.

42 Pa.C.S.A. § 9760(1).           See also Gaito v. Pennsylvania Bd. of


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Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980) (stating

defendant is entitled to credit for time spent in custody on detainer lodged

by Board of Probation and Parole).

       Instantly, following her most recent probation violation, Appellant

spent sixty (60) days incarcerated on the probation detainer awaiting the

revocation and resentencing hearing.4               The court revoked Appellant’s

probation and imposed concurrent terms of six to twenty-four months’

incarceration     for   each    offense    at    four   separate   dockets,   on   the

recommendation of Appellant’s probation officer. Appellant was entitled to

credit for time served on the probation detainer.           See id.; 42 Pa.C.S.A. §

9760(1).     None of the sentencing orders, however, reflects that Appellant

was awarded any credit for time served.

       At resentencing, the following exchange took place between the court,

Appellant, defense counsel and the probation officer:

           THE COURT:            I’m finding you in violation of your
           probation on all these cases. And that’s revoked, I give
           you a new sentence of 6 to 24 months served in a State
           Correctional Institute, you got to submit—

           [APPELLANT]:            So, my time here doesn’t count?

____________________________________________


4
 Appellant, the Commonwealth, and the trial court all agreed that Appellant
spent sixty days in custody on her probation detainer. The Gagnon II
hearing report, however, states Appellant was detained on December 9,
2015, which constitutes sixty-two (62) days, so the parties’ calculation of
Appellant’s presentence period of incarceration may be short by those two
days.



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J-S79007-16


          THE COURT:                 Yeah, yeah, yeah, you’re getting
          credit. Don’t you—wait a minute, no, you already got that
          against your probation, right?

          PROBATION OFFICER:              I was asking to run it back—

          THE COURT:                      Pardon me?

          PROBATION OFFICER:              I was asking just to run the
          sentence back.

          DEFENSE COUNSEL:                Because she has 60 days.

          [APPELLANT]:                    I’ve been here for 60 days.

          THE COURT:                  Well, let me ask you a question,
          she doesn’t get credit for those 60 against the six months,
          or does she? No, I mean, was that factored into your
          decision? Yeah, your back—your back time is reduced by
          60 days in jail.[5]

          [APPELLANT]:                    Okay.

          THE COURT:                But, they want you to serve six
          months upstate and that’s what we’re doing.

          [APPELLANT]:              Okay.    So, if that’s possible,
          then my back time will be six months?

          THE COURT:             No, they want you to—six
          months upstate, excuse me, six months upstate, excuse
          me. Go ahead, agent.

          [APPELLANT]:                    Yeah, but if I get 60 days, that’s
          6 to 22 months, correct?

          THE COURT:             No, no, no, no—no, no, no, no,
          the recommendation already takes the 60 days in and
____________________________________________


5
  The court later acknowledged that it misspoke when it referred to “back
time,” as Appellant was resentenced for a probation violation as opposed to
a parole violation.



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J-S79007-16


        gives you credit against your back time already. Now,
        you’ve got less back time than you had when you went in,
        am I right, agent?

        [APPELLANT]:              I had 24 months and I still have
        24 months.

        THE COURT:                Do we take it off the back?

        PROBATION OFFICER:        No, Your Honor—

        [APPELLANT]:              No.

        PROBATION OFFICER:        —if you’re willing to grant that
        time from the time she was incarcerated, then I would ask
        for 8 to 24 months, I was going to [inaudible].

        THE COURT:               You see that, if I give you that
        credit, he wants 8 to 24 months. So, I credit it against
        your back time.

        [APPELLANT]:              I have two in, and I still have to
        do six, correct?

        THE COURT:                Correct. Correct. He wants you
        to do six months in and I do, too. So, I’m giving you 6 to
        24 months, the credit does not apply against that 6 to 24
        months, it’s applied against the—does it take it off her
        back on the 24 months?

        [APPELLANT]:              No.

        THE COURT:                Is it 6 to 22 now?

        PROBATION OFFICER:        No, it’s 6 to 24.

        THE COURT:              6 to 24.   All right.  Good
        enough. So, it’s a 6 to 24 months sentence served in
        SCI[.]

(N.T. Resentencing, 2/9/16, at 8-11). The court attempted on some level to

account for Appellant’s presentence period of incarceration when imposing


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the revocation sentence.       The court’s sentencing decision, however,

apparently was affected by a misunderstanding of how to apply credit for the

time Appellant spent in custody on the detainer.       Credit for Appellant’s

presentence period of incarceration on the probation detainer must be

applied to her revocation sentence as a whole, not just the minimum term.

See 42 Pa.C.S.A. § 9760(1). In other words, if the court intended to impose

a twenty-four month maximum term of incarceration, Appellant should

spend no more than twenty-two months in prison from the date her

sentence began to account for the time she already spent incarcerated.

Without the proper notation on the sentencing orders, however, Appellant

might not receive that credit and is exposed to a potential twenty-six

months of incarceration. See Commonwealth v. Ellsworth, 97 A.3d 1255

(Pa.Super. 2014) (stating Department of Corrections (“DOC”) is executive

agency with no power to add or remove sentencing conditions, including

credit for time served); Commonwealth v. Heredia, 97 A.3d 392

(Pa.Super. 2014), appeal denied, 628 Pa. 637, 104 A.3d 524 (2014) (stating

text of sentencing order is determinative of court’s sentencing intentions and

sentence imposed).

      In light of the confusion at resentencing surrounding the court’s

intended sentence and the proper application of credit for time served, we

vacate the judgment of sentence and remand for resentencing.         To avoid

any ambiguity, the court shall impose the over-all sentence it deems


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appropriate (without subtracting credit for time served from the minimum

and maximum terms), and then indicate on the sentencing orders that

Appellant is to receive credit for the exact number of days she spent in

custody on the probation detainer (60 or 62) as well as the exact number of

days she has served in custody pending resolution of her appeal.6

Accordingly,    we    vacate    the    judgment    of   sentence   and   remand   for

resentencing.

       Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2016




____________________________________________


6
 The sentencing orders will then trigger the DOC’s duty to credit Appellant’s
sentence appropriately.



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