J-S75025-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAY JUSTIN RICHTER                         :
                                               :
                       Appellant               :   No. 859 WDA 2019


        Appeal from the Judgment of Sentence Dated January 29, 2018,
              in the Court of Common Pleas of Somerset County,
            Criminal Division at No(s): CP-56-CR-0000150-2016.


BEFORE:      STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                               FILED JUNE 8, 2020

        Ray Justin Richter appeals, nunc pro tunc, from a judgment of sentence,

after a PCRA1 court vacated his original sentence and a trial court resentenced

him to one-and-a-half to five years’ incarceration. We partially vacate and

amend that sentence to award Richter credit for additional time served.

        On January 23, 2016, Richter stole $321.13 from a Sheetz gas station

at knife point. Police arrested him five days later. Richter stayed in jail until

April 8, 2016, when he made bail. He returned to jail on April 25, 2016, when,

upon petition of the Commonwealth, the court revoked his bond and issued a

bench warrant for Richter’s arrest due to his failure to follow one of his

conditions for bail – i.e., to have no contact with his victims.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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       He thereafter remained incarcerated, and plea negotiations ensued. The

Commonwealth and Richter’s attorney agreed, albeit incorrectly, that a deadly

weapon enhancement would not apply to his robbery sentence, if Richter

pleaded guilty to all charges. Richter therefore pleaded guilty on May 5, 2016

to robbery, driving under the influence, forgery, and two counts of theft. 2

After accepting those pleas, the trial court remanded him to jail to await

sentencing, which occurred on July 6, 2016. At that point, Richter served a

total of 144 days of presentence incarceration.

       The court then sentenced Richter to four to ten years of incarceration

for robbery, because, notwithstanding the parties’ plea deal, it concluded that

the deadly weapon enhancement applied. Additionally, the court sentenced

him to three days to six months of incarceration for DUI, and six months to

five years of incarceration for one theft charge.3 It ordered Richter to serve

the robbery and theft sentences consecutively.     As such, Richter faced an

aggregate sentence of 4½ to 15 years of imprisonment. The trial court also

credited Richter 144 days for time served.

       Richter filed no post-sentence motion, and he did not appeal.


____________________________________________


2 18 Pa.C.S.A. § 3701(a)(1)(ii), 75 Pa.C.S.A. § 3802(d)(2), 18 Pa.C.S.A. §
4101(a)(1), and 18 Pa.C.S.A. § 3921(a). The convictions for driving under
the influence, forgery, and thefts were at separate docket numbers from the
events at the Sheetz.

3 Although irrelevant to this appeal, Richter’s original sentence also included
two years of probation for the other theft charge and five years of probation
for the forgery.

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        A year later, Richter filed a PCRA petition alleging ineffective assistance

of counsel, regarding his plea and sentence. The PCRA court “found that, as

a result of trial counsel’s and the Commonwealth’s mutual mistake of law

regarding the [deadly weapon enhancement, Richter] was denied the benefit

of the plea bargain he negotiated” on his robbery charge. Trial Court Opinion,

8/19/19, at 2. The PCRA court vacated the robbery conviction and allowed

Richter to withdraw his guilty plea to that charge. However, the court left his

other sentences undisturbed. See id. at 2-3.

        The Commonwealth reinstated the charges arising from Richter’s actions

at the Sheetz – i.e., robbery, terroristic threats with intent to terrorize

another, simple assault, theft by unlawful taking, receiving stolen property,

disorderly conduct, and aggravated assault. Richter then immediately pleaded

guilty to aggravated assault.4 The trial court then remanded him to prison

until resentencing. In explaining its sentence, the court said:

                  On January 29, 2018, [Richter] was sentenced [for
           aggravated assault] to incarceration in a State Correctional
           Institution for 18 months to 5 years, to be served
           concurrently with any other sentences [he] was presently
           serving. [Richter] was again granted credit for time served
           in presentence incarceration, totaling 144 days, from
           January 28, 2016 to April 8, 2016 and from April 25, 2016
           to July 5, 2016.

Trial Court Opinion, 8/19/19, at 3.




____________________________________________


4   18 Pa.C.S.A. § 2702(a)(4).

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      The trial court gave Richter no credit for the time he served between

July 6, 2016 and January 29, 2018 towards his aggravated-assault sentence.

      Eventually, the trial court reinstated Richter’s appellate rights, nunc pro

tunc, and ordered him to file a post-sentence motion. Richter filed the motion

requesting the trial court to reconsider his sentence and give him credit for

time served. The court denied both requests, and this timely appeal followed.

      Richter raises two appellate issues:

         1.    Whether the trial court erred in not crediting [him]
               with both the “presentence” incarceration he served
               in this case and the “post-sentence” incarceration he
               served in this case?

         2.    Whether the trial court erred in not reconsidering the
               discretionary aspects of [his] sentence?

Richter’s Brief at 3. We discuss each issue in turn.

1.    Credit for Time Served

      First, Richter claims that the Sentencing Code required the trial court to

credit him with time served from his original sentencing on January 28, 2016

through his resentencing on January 29, 2018. He believes the trial court

should have credited him with two years and one day, which includes 2016’s

leap day in February, for a total of 732 days. See id. at 9. He argues the

trial court should have applied 42 Pa.C.S.A. § 9760(2) and given him credit

toward his aggravated-assault sentence for the time he served between his

original sentence for the robbery and theft convictions and his aggravated-

assault sentence.



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      A “trial court’s failure to award credit for time spent in custody prior to

sentencing involves the legality of sentence.” Commonwealth v. Beck, 848

A.2d 987, 989 (Pa. Super. 2004). “Because the legality of a sentence presents

a pure question of a law, our scope of review is plenary, and our standard of

review is de novo.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875,

889 (Pa. Super. 2019), appeal denied, 221 A.3d 644 (Pa. 2019).

      “Our Supreme Court has stated that an illegal sentence is one that

exceeds the statutory limits.” Commonwealth v. Berry, 877 A.2d 479, 482-

83 (Pa. Super. 2005) (en banc) (quotations and citation omitted). This Court

has said, “if no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.” Id. Thus, we have held that “a

sentence is illegal where a statute bars the court from imposing that

sentence.” Id. at 483.

      To determine whether Richter is entitled to additional time credit, we

must construe section 9760 of the Sentencing Code. 42 Pa.C.S.A. § 9760.

Section 9760 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.

            (2) Credit against the maximum term and any minimum
         term shall be given to the defendant for all time spent in
         custody under a prior sentence, if he is later reprosecuted
         and resentenced for the same offense or for another offense


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        based on the same act or acts. This shall include credit in
        accordance with paragraph (1) of this section for all time
        spent in custody as a result of both the original charge and
        any subsequent charge for the same offense or for another
        offense based on the same act or acts.

            (3) If the defendant is serving multiple sentences, and if
        one of the sentences is set aside as the result of direct or
        collateral attack, credit against the maximum and any
        minimum term of the remaining sentences shall be given for
        all time served in relation to the sentence set aside since
        the commission of the offenses on which the sentences were
        based.

           (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.A. § 9760.

     The trial court concluded that subsection (3), rather than subsection (2)

or (3) applies to Richter’s new sentence. The court explained:

           For reasons discussed infra, we believe that [Richter] is
        not entitled to credit for the time he spent in incarceration
        since July 6, 2016. Granting such credit, we suggest, would
        violate the plain meaning of 42 Pa.C.S. § 9760(3)[.]
        [Section] 9760(3) makes clear that when a [defendant]
        serving multiple cases has one sentence set aside, credit for
        time served in relation to the sentence set aside shall be
        given against the remaining sentences.

           Applying the plain meaning of the statute to the case sub
        judice, [Richter] is not entitled to the relief he claims.
        [Richter] was originally sentenced on July 6, 2016, wherein
        we ordered the incarceration sentences in No. 150 Crim.
        2016 (4 years to 10 years) and 989 [Crim.] 2015 (6 months
        to 5 years) be served consecutively, resulting in an
        aggregate sentence of 4½ to 15 years. As a consequence
        of this Court’s Order of October 27, 2017, the sentence in

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         No. Crim. 2016 was vacated and the sentence in No. 989
         Crim. 2015 became [Richter’s] controlling incarceration
         sentence. It is toward the minimum and maximum terms
         of the sentence in No. 989 Crim. 2015 that [Richter’s] credit
         for time served since July 6, 2016 must be applied.
         Consequently, we suggest [Richter] is not entitled to credit
         for time served in No. 150 Crim. 2016 beyond the 144 days
         this Court has already granted him.

Trial Court Opinion, 8/19/19, at 5-6 (citation omitted). The Commonwealth

asserts that “the trial court’s reasoning is sound.” Commonwealth’s Brief at

6.

      The above rationale provided by the trial court, as adopted by the

Commonwealth, misreads the plain language of Section 9760. The trial court’s

rationale does not account for the fact that Richter’s sentence at No. 150 Crim.

2016 was not only set aside, but Richter was reprosecuted and resentenced

at that docket. Therefore the plain language of subsection (2), infra, applies.

See, e.g. Commonwealth v. Diamond, 546 A.2d 628, 631-32 (Pa. Super.

1988) (holding that, following new trial and second conviction for offense of

risking a catastrophe, trial court erred in computing new sentence when thr

court failed to credit the defendant, pursuant to section 9760(2), with time he

had already served in custody on the prior sentence).

      Stated differently, subsection (2) specifically deals with credit for time

served for conduct arising from the same acts or acts, which is the

circumstances presented in this case.     Subsection (3), on the other hand,

applies to sentences for separate prosecutions that arise from unrelated

offenses, which is not applicable here.      We read the plain language of


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subsection (3) to apply whenever a person who is serving multiple sentences

has one sentence set aside and that person is not reprosecuted or resentenced

for the underlying crime. In such a situation, the person would not have a

new sentence imposed upon which to receive credit for the time he already

served, and, therefore, credit would be given on the remaining sentences.

See, e.g., Commonwealth v. Bailey, 392 A.2d 836, 836-37 (Pa. 1975)

(concluding that defendant, whose homicide conviction was reversed, was

entitled to time credit on his prison riot sentence).

      Thus, Richter was entitled to additional credit for time he served under

the prior sentence at No. 150 Crim. 2016 pursuant to section 9760(2). That

being said, however, we note that Richter’s math is incorrect. As mentioned

above, he was not in continuous custody from his arrest on January 28, 2016

through his original July 6, 2016 sentencing. Thus, that period of time served

totaled only 144 days. Due to this custodial gap in 2016, the most credit for

time served that Richter may receive is 716 days, i.e., not the full two years

and a day that he requests in his appellate brief.

      “Once we have determined that a sentence is illegal, we may remand

for [re]sentencing, or [we may] vacate and amend the invalid sentence

directly.” Commonwealth v. Kozrad, 474, 499 A.2d 1096, 1099 (Pa. Super.

1985).   We see no reason to remand, when we can modify the order of




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sentence to credit Richter properly under Section 9760.5        Accordingly, we

amend his sentence at the conclusion of this decision.


2.     Discretionary Aspects of Sentencing

       In Richter’s second appellate issue, he seeks to challenge the manner in

which the trial court exercised its discretion in resentencing him. A convicted

person does not have an automatic right to appeal the discretionary aspects

of his sentence. See, e.g., Commonwealth v. Moury, 992 A.2d 162, 170

(Pa. Super. 2010). He must instead convince us to review those discretionary

aspects.

       This Court has articulated the following, four-part test to determine

whether to consider the merits of such an appellate claim. They are:

           (1) whether appellant has filed a timely notice of appeal,
           see Pa.R.A.P. 902 and 903; (2) whether the issue was
           properly preserved at sentencing or in a motion to
           reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
           whether appellant’s brief has a fatal defect, Pa.R.A.P.
           2119(f); and (4) whether there is a substantial question that
           the sentence appealed from is not appropriate under the
           Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. (some punctuation omitted).


____________________________________________


5 We note that Commonwealth v. Goldhammer, 517 A.2d 1280, 1283 (Pa.
1986) (holding that “remand to reconsider a sentence, where the disposition
by an appellate court has altered the sentencing scheme of the trial court,” is
appropriate), does not apply. There is no “sentencing scheme” on appeal for
our decision to disrupt, because the PCRA court left Richter’s other, original
sentences intact. Thus, Richter could only appeal his sentence for aggravated
assault. Appealing this single sentence did not cast the remainder of the now-
final, original sentencing scheme into doubt.

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      Richter timely appealed, nunc pro tunc; he moved for reconsideration of

the sentence; and he included a Rule 2119(f) statement in his appellate brief

requesting that we grant discretionary review. Thus, he has satisfied the first,

three prongs of our discretionary-aspects-allowance-of-review test.

      We therefore consider the fourth prong — whether Richter raised a

substantial question in his 2119(f) statement.     Such a statement raises a

substantial question “only when the appellant advances a colorable argument

that the sentencing judge’s actions were either:       (1) inconsistent with a

specific provision of the Sentencing Code; or (2) contrary to the fundamental

norms which underlie the sentencing process.”     Commonwealth v. Sierra,

752 A.2d 910, 912-13 (Pa. Super. 2000).

      Richter’s statement does neither. He contends:

         It is submitted that there are sufficient, compelling, and
         substantial issues in this matter requiring appellate review
         of the discretionary aspects of the sentence imposed by the
         lower court. Specifically, [Richter] asserts that the unique
         procedural posture of this case, in which his sentence was
         vacated and he was sentenced again without getting the
         post-sentence     time    served    credited,   justified  a
         reduced/mitigated sentence by the trial court. Furthermore,
         [he] presented several certificates and accomplishments he
         had made at the sentencing hearing in further support of a
         reduced sentence, as well as his young age of 25.

Richter’s Brief at 8.

      His first reason for requesting discretionary review is now moot, given

our analysis and decision above.




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      As for Richter’s other reasons for requesting discretionary review – i.e.,

that he presented certificates showing progress towards reformation and his

young age – these do not rise to the level of a substantial question under our

precedents. “That the court refused to weigh the proposed mitigating factors

as [Richter] wished, absent more, does not raise a substantial question.”

Moury, 992 A.2d at 175.       Indeed, he cites to no authority in his 2119(f)

statement to support a contention that the events of his sentencing constitute

a substantial question.      Also, Richter cites no specific provision of the

Sentencing Code that the trial court allegedly misapplied.         Nor does he

otherwise contend that his resentencing was “contrary to the fundamental

norms which underlie the sentencing process.”     Sierra, supra.

      Therefore, Richter’s application for review of the discretionary aspects

of his sentence is denied.

      In sum, because the trial court misconstrued the time-served-crediting

provisions of 42 Pa.C.S.A. § 9760 and imposed an illegal sentence, we vacate

that portion of Richter’s sentence awarding only 144 days of credit at docket

No, 150 Crim. 2016. Under Kozrad, supra, we amend that paragraph as

follows:   “The defendant is entitled to credit for time served against this

sentence totaling 716 days, extending from January 28, 2016 to April 8, 2016

and from April 25, 2016 to January 28, 2018.”

      Judgment of sentence vacated in part; judgment of sentence affirmed

as amended.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2020




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