J-S53041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

LAKEISHA S. LEONARD

                             Appellant                No. 2102 MDA 2015


             Appeal from the Judgment of Sentence March 13, 2015
       in the Court of Common Pleas of Dauphin County Criminal Division
                        at No(s):CP-22-CR-0002286-2013
                                 CP-22-CR-0004461-2011
                                 CP-22-CR-0004605-2014
                                 CP-22-CR-0004843-2011

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 04, 2017

        Appellant, Lakeisha Leonard, appeals nunc pro tunc from the judgment

of sentence entered in the Dauphin County Court of Common Pleas following

the revocation of her probation.         We vacate Appellant’s judgment of

sentence and remand for resentencing.

        Appellant was charged with three counts of bad checks in 4461 CR

2011, one count of bad checks in 4843 CR 2011, forgery, identity theft, and

theft by deception (false pretenses) and theft by unlawful taking in 2286 CR

2013.     She pleaded guilty and was sentenced on October 8, 2013, to five

years’ intermediate punishment (“IP”), with house arrest and electronic

monitoring for the first four months, and probationary terms.

*
    Former Justice specially assigned to the Superior Court.
J-S53041-16


      Appellant was subsequently arrested on August 6, 2014, and charged

with forgery and criminal conspiracy (theft by deception) in 4605 CR 2014.

On August 7, 2014, the Dauphin County Adult Probation Department filed a

notice of violations in 2286 CR 2013, 4461 CR 2011, and 4843 CR 2011, and

cited the new charges in 4605 CR 2015.       On January 12, 2015, Appellant

pleaded guilty to the new charges in 4605 CR 2014, and was sentenced for

criminal conspiracy to time served from August 7, 2014 to January 12, 2015.

      On March 13, 2015,1 the trial court revoked Appellant’s IP and

probationary sentences in 2286 CR 2013, 4461 CR 2011, and 4843 CR 2011

and sentenced her to one to five years’ imprisonment followed by three

years’ probation. The court did not discuss whether Appellant qualified for a

Recidivism Risk Reduction Initiative (“RRRI”) sentence. Appellant requested

that her trial counsel file a post-sentence motion to modify her sentence.

Trial counsel, however, did not file a post-sentence motion or a notice of

appeal.

      On August 25, 2015, the court docketed Appellant’s pro se PCRA

petition, which alleged ineffective assistance of counsel for failing to file a

post-sentence motion. The PCRA court appointed counsel who filed a PCRA

1
  The sentencing order and transcript are dated February 13, 2015. The
docket and record, however, reflect an order to transport Appellant for a
revocation hearing scheduled for March 13, 2015, and several sentencing
forms dated March 13, 2015. Finally, the trial court indicated the revocation
hearing occurred on March 13, 2015. Trial Ct. Op. at 2. Accordingly, we
presume the revocation and sentencing proceeding occurred in March.




                                     -2-
J-S53041-16


petition alleging ineffective assistance of counsel on October 13, 2015. The

counseled petition claimed that Appellant requested trial counsel to ask the

court to modify the sentence to account for credit for time served and a

request for a RRRI sentence. PCRA Pet., 10/13/15, at 6 (unpaginated). The

counseled petition did not allege an excessive sentence.           The petition

requested an evidentiary hearing, an order permitting Appellant to appear at

the hearing, and such relief as the court deemed appropriate. Id. at 7. The

petition did not explicitly request that the court reinstate her direct appeal

rights or grant permission to file a post-sentence motion nunc pro tunc.

      The Commonwealth filed a response, which agreed that Appellant’s

trial counsel was ineffective by failing to file a post-sentence motion.

Commonwealth’s Response to Petitioner’s Mot. for Post-Conviction Relief,

11/12/15, at 2 (unpaginated).       The Commonwealth indicated it did not

object to a reinstatement of Appellant’s direct appellate rights. Id.

      On November 17, 2015, the PCRA court reinstated Appellant’s direct

appeal rights.   PCRA Ct. Order, 11/17/15.        The order did not mention

whether Appellant could file a post-sentence motion nunc pro tunc.

Appellant timely filed a direct appeal and timely filed a court-ordered

Pa.R.A.P. 1925(b) statement.

      On appeal, Appellant raises two issues for review:

         1. Whether trial counsel was ineffective for failing to file a
         modification of sentence or appeal on . . . Appellant’s
         behalf?



                                     -3-
J-S53041-16


         2. Whether the trial court abused its discretion when
         sentencing . . . Appellant to an excessive and
         unreasonable sentence?

Appellant’s Brief at 5.

      Appellant, the Commonwealth, and the PCRA court agree that

Appellant’s plea counsel was ineffective for failing to file a requested post-

sentence motion.      See Appellant’s Brief at 9; Commonwealth’s Brief at 4;

PCRA Ct. Op., 2/16/16, at 2. Appellant contends the court failed to consider

whether she was eligible for a RRRI sentence, failed to grant her credit for

time served, did not put its reasoning for her sentence on the record, and

did not consider mitigating circumstance. Appellant’s Brief at 9-10.

      We first address Appellant’s contention that the trial court erred in

failing to consider whether she was eligble for RRRI and entitled to credit for

time served.

         This Court has held that an attack upon the power of a
         court to impose a given sentence is a challenge to the
         legality of a sentence. Commonwealth v. Lipinski, 841
         A.2d 537, 539 (Pa.             Super.   2004);    see also
         Commonwealth v. Hansley, 994 A.2d 1150 (Pa. Super.
         2010) (challenge to trial court’s imposition of RRRI
         sentence with mandatory minimum sentence constitutes
         challenge to trial court’s sentencing authority).

Commonwealth v. Robinson, 7 A.3d 868, 870 (Pa. Super. 2010).

Further, a “challenge to the trial court’s failure to award credit for time

served   prior   to   sentencing   involves   the   legality   of   a   sentence.”

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009).

“Our standard of review over such questions is de novo and our scope of


                                     -4-
J-S53041-16


review is plenary.” Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.

Super. 2009) (citation omitted).       Therefore, we consider the issues of

Appellant’s RRRI eligibility and credit for time served.

      RRRI eligibility is set forth by 61 Pa.C.S. § 4503:

         “Eligible offender.” A defendant or inmate convicted of a
         criminal offense who will be committed to the custody of
         the department and who meets all of the following
         eligibility requirements:

         (1) Does not demonstrate a history of present or past
         violent behavior.

         (2) Has not been subject to a sentence the calculation of
         which includes an enhancement for the use of a deadly
         weapon as defined under law or the sentencing guidelines
         promulgated by the Pennsylvania Commission on
         Sentencing or the attorney for the Commonwealth has not
         demonstrated that the defendant has been found guilty of
         or was convicted of an offense involving a deadly weapon
         or offense under 18 Pa.C.S. Ch. 61 (relating to firearms
         and other dangerous articles) or the equivalent offense
         under the laws of the United States . . . .

         (3) Has not been found guilty of or previously convicted of
         or adjudicated delinquent for or an attempt or conspiracy
         to commit a personal injury crime as defined under section
         103 of the act of November 24, 1998 (P. L. 882, No. 111),
         known as the Crime Victims Act, except for an offense
         under 18 Pa.C.S. § 2701 (relating to simple assault) when
         the offense is a misdemeanor of the third degree, or an
         equivalent offense under the laws of the United States or
         one of its territories or possessions, another state, the
         District of Columbia, the Commonwealth of Puerto Rico or
         a foreign nation.

         (4) Has not been found guilty or previously convicted or
         adjudicated delinquent for violating any of the following
         provisions or an equivalent offense under the laws of the
         United States or one of its territories or possessions,



                                      -5-
J-S53041-16


        another state, the District of Columbia, the Commonwealth
        of Puerto Rico or a foreign nation:

           18 Pa.C.S. § 4302(a) (relating to incest).

           18 Pa.C.S. § 5901 (relating to open lewdness).

           18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
           pornography).

           Received a criminal sentence pursuant to 42 Pa.C.S. §
           9712.1 (relating to sentences for certain drug offenses
           committed with firearms).

           Any offense for which registration is required under 42
           Pa.C.S. Ch. 97 Subch. H (relating to registration of
           sexual offenders).

        (5) Is not awaiting trial or sentencing for additional
        criminal charges, if a conviction or sentence on the
        additional charges would cause the defendant to become
        ineligible under this definition.

        (6) Has not been found guilty or previously convicted of
        violating section 13(a)(14), (30) or (37) of the act of April
        14, 1972 (P.L. 233, No. 64), known as The Controlled
        Substance, Drug, Device and Cosmetic Act, where the
        sentence was imposed pursuant to 18 Pa.C.S. §
        7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii)
        (relating to drug trafficking sentencing and penalties).

61 Pa.C.S. § 4503(1)-(6) (footnotes omitted).

     The court is required to ascertain whether the defendant is eligible for

a RRRI sentence:

        (b.1) Recidivism risk reduction incentive minimum
        sentence.—The court shall determine if the defendant is
        eligible for a recidivism risk reduction incentive minimum
        sentence under 61 Pa.C.S. Ch. 45 (relating to recidivism
        risk reduction incentive). If the defendant is eligible, the
        court shall impose a recidivism risk reduction incentive
        minimum sentence in addition to a minimum sentence and


                                       -6-
J-S53041-16


         maximum sentence except, if the defendant was
         previously sentenced to two or more recidivism risk
         reduction incentive minimum sentences, the court shall
         have the discretion to impose a sentence with no
         recidivism risk reduction incentive minimum.

42 Pa.C.S. § 9756(b.1).

         Accordingly, where the trial court fails to make a
         statutorily required determination regarding a defendant’s
         eligibility for an RRRI minimum sentence as required, the
         sentence is illegal. . . . [The defendant’s] issue presents a
         non-waivable challenge to the legality of [the] sentence.

Robinson, 7 A.3d at 871.         In Robinson, the trial court denied the

defendant’s request to determine her eligibility for a RRRI sentence. Id. at

870. The court reasoned “that imposition of the negotiated sentence in this

case precluded application of the RRRI.”      Id. at 874.   Because the trial

court’s reasoning was flawed, the Robinson Court vacated the defendant’s

judgment of sentence and remanded to have the court ascertain whether

she was RRRI eligible. Id. at 875.

       Instantly, the trial court conceded that at Appellant’s sentencing

hearing, it failed to ascertain whether she was qualified for a RRRI sentence.

See Trial Ct. Op. at 3 (“It does appear that Appellant qualifies as RRRI

eligible, and we do acknowledge that should have been determined at

sentencing.”).   Accordingly, because Appellant’s sentence is illegal, see

Robinson, 7 A.3d at 871, we vacate the judgment of sentence and remand

for resentencing, including a determination of RRRI eligibility.   See id. at

875.



                                     -7-
J-S53041-16


      Appellant also alleges that she is entitled to the following additional

credit for time in custody: (1) October 8, 2013 to March 8, 2014; (2) March

6, 2015 to March 17, 2015; and (3) November 2, 2015 to January 14, 2016.

Appellant’s Brief at 17.   We conclude that Appellant has not established a

right to relief, but direct the trial court to consider whether Appellant is

entitled to credit on remand.

      This Court has stated:

         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 pending the resolution of an appeal.

         42 Pa.C.S.A. § 9760(1) . . . . “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.” “If a defendant . . . remains incarcerated prior
         to trial because he has failed to satisfy bail requirements
         on the new criminal charges, then the time spent in
         custody shall be credited to his new sentence.” “Where 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.” The Department of
         Corrections, an executive agency, has no power to change


                                     -8-
J-S53041-16


          sentences, or to add or remove sentencing conditions,
          including credit for time served; this power is vested in the
          sentencing court.

Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008) (some

citations and emphases omitted).

      “Pennsylvania appellate courts consistently have interpreted section

9760's   reference   to   ‘custody’   as   confinement   in   prison   or   another

institution.”    Commonwealth v. Martz, 42 A.3d 1142, 1145 (Pa. Super.

2012) (citation omitted). “[T]ime spent subject to electronic monitoring at

home is not time spent ‘in custody’ for purposes of credit toward a prison

sentence.”      Commonwealth v. Birney, 910 A.2d 739, 741 (Pa. Super.

2006) (citation omitted).

      At the outset, we note that Appellant’s boilerplate assertions fail to

establish that she was in custody based on the instant charges.             In any

event, the 151 days from October 8, 2013, to March 8, 2014, occurred after

Appellant was sentenced to IP and probation, but before the instant

revocation proceeding was commenced.            Therefore, no record evidence

suggests Appellant was in custody on the instant charges. See Mann, 957

A.2d at 749; Birney, 910 A.2d at 741.

      Next, the five days between March 6 and March 11, 2015, occurred

between the imposition of the January 12, 2015 time-served sentence in

4605 CR 2014 and the instant March 13, 2015 revocation proceeding.               A

review of the record and the publicly available dockets reveals the following.



                                       -9-
J-S53041-16


On January 20, 2015, Appellant was sentenced to nine months to twenty

three months’ imprisonment in Cumberland County following the revocation

of her probation in that County. Docket, CP-21-CR-0003144-2012, at 7. On

February 4, 2015, the trial court issued a writ of habeas corpus directing the

transportation of Appellant from Cumberland County Prison to Dauphin

County for the March 13, 2015 revocation proceeding in Dauphin County.2

See Order, 2/4/15.      Accordingly, we discern no basis to conclude that

Appellant was in custody from March 6 to March 11, 2015, due to the instant

matter. See Mann, 957 A.2d at 749.

      Lastly, the seventy-three days from November 2, 2015, to January 14,

2016, accrued after the imposition of the instant sentence following

revocation and during this appeal.      To the extent that Appellant was in

custody for these seventy-three days as a result of the sentence following

revocation, Appellant would be entitled to credit for this time.        See 42

Pa.C.S. § 9760(1) (“Credit shall include credit for the time spent in custody .

. . pending the resolution of an appeal.”).

      Therefore, we vacate the March 13, 2015 sentence and remand for

resentencing, including determinations of RRRI eligibility and whether

Appellant is entitled to any additional credit for time in custody in the instant

matter.


2
 Appellant was paroled in Cumberland County effective September 4, 2015.
CP-21-CR-0003144-2012, at 8.



                                     - 10 -
J-S53041-16


         Appellant also challenges the discretionary aspects of her sentence.

Although Appellant did not file a post-sentence motion nunc pro tunc, it

appears that the PCRA court, when reinstating her direct appeal rights,

considered her post-sentence claims. See Trial Ct. Op. at 2-3.          Appellant

set forth in her brief a concise statement of reasons relied on for allowance

of appeal, asserting, inter alia, that the trial court “failed to put the

reasoning for the state incarceration on the record . . . .” Appellant’s Brief

at 12.

         We conclude Appellant has preserved a claim that the trial court failed

to state its reasons for the sentence imposed and agree relief is due in light

of this Court decision in Commonwealth v. Flowers, ___ A.3d ___, ___,

2016 WL 6157509 at *7 (Pa. Super. Oct. 24, 2016). Thus, on remand, the

trial court shall also “articulate reasons for the new sentence.” Id.

         Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

         Judge Shogan joins the memorandum.

         Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/2017




                                      - 11 -
