J-S08030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DASHAWN MCLENDON

                        Appellant                   No. 2216 EDA 2014


         Appeal from the Judgment of Sentence of June 24, 2014
            In the Court of Common Pleas of Monroe County
           Criminal Division at No.: CP-45-CR-0000219-2014


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                           FILED MARCH 10, 2015

     Dashawn McLendon appeals the Court of Common Pleas of Monroe

County’s June 24, 2014 judgment of sentence, which was imposed upon

McLendon’s guilty plea to Possession of a Firearm Without a License, 18

Pa.C.S. § 6106(a)(2).   Specifically, McLendon contends that the trial court

failed properly to credit time that he spent incarcerated in Luzerne County

on one charge while McLendon was awaiting sentencing on an unrelated

Monroe County charge. We affirm.

     The trial court provided the following factual and procedural history:

     On January 8, 2014, [McLendon] was arrested and charged with
     Possession of a Firearm without a License and Possession of a
     Small Amount of [M]arijuana. He was released on bail the next
     day.

     On March 19, 2014, [McLendon pleaded] guilty to the Possession
     of [a] Firearm charge. While still on bail but before he was
     sentenced, [McLendon] was arrested and charged in Luzerne
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     County with Possession with Intent to Deliver Marijuana (the
     “Luzerne County Charge”). [McLendon] was incarcerated in the
     Luzerne County Correctional Facility on the Luzerne County
     Charge from May 1, 2014 until shortly before he was sentenced
     in this case.

     On June 24, 2014, [McLendon] was sentenced in this case to
     incarceration of not less than 6 months nor more than 24
     months [less one day]. He was given time credit for the two
     days he initially spent in jail before being released on bail.

     [McLendon] did not file post-sentence motions. On June 24,
     2014, [McLendon’s] counsel filed a notice of appeal. Despite the
     fact that no post-sentence motions had been filed, the notice
     indicated that [McLendon] was appealing from “the deemed
     denial by operation of law of Post-Sentence Motions in
     accordance with Pa.R.Crim.P. 720(B)(3)(a).”

     On July 25, 2014, we entered an order directing [McLendon] to
     file his [Pa.R.A.P.] 1925(b) statement within 21 days. On July
     28, 2014, the Clerk of this Court served the order on
     [McLendon’s] counsel and the attorney for the Commonwealth
     and filed affidavits of service. Shortly thereafter, the court
     received from [McLendon] a pro se “Motion to Modify and
     Reduce Sentence” dated July 24, and mailed on July 25, 2014,
     from the Luzerne County Correctional Facility.

     On July 29, 2014, we issued an order dismissing the pro se
     motion, pointing out the error in the notice of appeal, and
     directing [McLendon’s] counsel to amend, correct, or clarify the
     notice by specifying the order or judgment from which the
     appeal was being taken. The order clearly stated that “[t]his
     requirement does not alter, modify, or extend the time for the
     filing of [McLendon’s] Rule 1925(b) statement of errors
     complained of on appeal.” No Rule 1925(b) statement was filed.

     Since a defense attorney’s failure to timely file a Rule 1925(b)
     statement when ordered to do so is per se ineffectiveness, we
     followed the procedures established by the Superior Court in
     Commonwealth v. Thompson, 39 A.3d 335, 340 n.11
     (Pa. Super. 2012). Specifically, we issued an appeal opinion
     finding [McLendon’s] attorneys had been ineffective, granting
     [McLendon’s] appellate counsel leave to file a Rule 1925(b)
     statement nunc pro tunc, and indicating that this supplemental
     appeal opinion would address any issues that are timely and
     properly raised in the Rule 1925(b) statement, once filed.

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       As indicated, [McLendon’s] Rule 1925(b) [statement] was
       subsequently filed nunc pro tunc within the period we gave him
       to do so.

Trial Court Opinion (“T.C.O.”), 10/1/2014, at 1-3 (footnotes omitted; legal

citations modified; record citations omitted; emphasis in original).

       McLendon states his lone issue on appeal as follows:

       Whether [McLendon] should be given time credit against his
       Monroe County sentence for the time he spent in Luzerne County
       on unrelated charges while waiting to be transported to Monroe
       County because the Commonwealth failed to file a writ to release
       the defendant to Monroe County, causing an unnecessary delay
       in the start of his sentence?

Brief for McLendon at 3.        The trial court correctly noted that even though

McLendon failed to raise this issue in post-sentence motions, the issue

cannot be waived because questions concerning the crediting of time served

implicate the legality of sentence.            T.C.O. at 3 (citing Commonwealth v.

Hollawell, 604 A.2d 723, 725 (Pa. Super. 1992)).1

       The trial court’s discussion is apt, and warrants reproduction in full:

       Under Section 9760 of the Sentencing Code, the court must give
       credit for time served 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
____________________________________________


1
      This is distinct from a challenge to a computation of time served by
the Bureau of Corrections, jurisdiction over which lies in the Commonwealth
Court.     See Commonwealth v. Perry, 563 A.2d 511, 512-13
(Pa. Super. 1989).



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          include credit for time spent in custody prior to trial, during
          trial, pending sentence, and pending the resolution of an
          appeal.

                                         ****

          (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 (2014).[2] In applying these statutory rules,
       [it] is “well[-]settled that credit for pre-sentence custody time
       cannot be earned against criminal charges pending in a different
       county.” Doria v. Pa. Dep’t of Corrs., Records Dep’t, 630
       A.2d 980, 982 (Pa. Cmwlth. 1993) (emphasis in original).
       Similarly, “Section 9760 . . . does not provide for credit for time
       served on unrelated offenses or when credit has been already
       credited against another sentence.”        Taglienti v. Dep’t of
       Corrs. of the Cmwlth. Of Pa., 806 A.2d 988, 993
       (Pa. Cmwlth. 2002).

       Here, the additional time credit [McLendon] is seeking relates to
       the Luzerne County Charge, not this case. [McLendon] is not
       entitled in this case to credit for the time he served in jail in
       Luzerne County because he was incarcerated there on the
       unrelated Luzerne County Charge that was filed against him by
       another jurisdiction. At sentencing, [McLendon] was given credit
       for the two days he had spent in jail as a result of the charges
       filed against him in this case. He is not entitled to additional
       credit here. His request for credit for time spent in jail in
       Luzerne County on the Luzerne County Charge must be
       addressed to the court and the authorities in Luzerne County.

T.C.O. at 3-5 (citations modified).

____________________________________________


2
      The trial court reproduced all four of section 9760’s four subsections.
However, only subsections (1) and (4) are relevant to our analysis in this
case.



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     Against this sound reasoning, which is couched in accurately-

represented Pennsylvania authority, McLendon offers an argument reliant

exclusively on case law interpreting the calculation of time served for

confinement upon a detainer for an alleged probation or parole violation.

Specifically, McLendon relies upon Martin v. Pennsylvania Board of

Probation & Parole, 840 A.2d 299 (Pa. Super. 2003), and Baasit v.

Pennsylvania     Board      of   Probation    &    Parole,    90   A.3d    74

(Pa. Cmwlth. 2014).      From Martin, McLendon cherry-picks the following

language:

     [T]he considerations relevant to the award of credit are just and
     equitable in nature. Unique combinations of circumstances will
     be presented in different cases that tip the balance for or against
     the particular allocation of credit. Decision[-]making in this
     conte[x]t[] is thus[] particularly suited to a discretionary
     framework with guidelines to ensure equitable treatment.

Brief for McLendon at 6 (quoting Martin, 840 A.2d at 308). From Baasit,

he reasons as follows:

     In [Baasit], the [Commonwealth] Court also referred to the
     primary jurisdiction doctrine in discussing the award of credit
     under new subsection 5.1 of the Parole Code[, 61 Pa.C.S.
     § 6138(a)]. Under that doctrine[,] the sovereign which first
     arrests a defendant is afforded primary jurisdiction. The addition
     of subsection 5.1 constituted a significant change in legislative
     policy regarding the order of service of sentences where the
     convicted parole violator received a new sentence in a federal
     court or a court of another jurisdiction. That subsection would
     thus require that a parole violator serve his state sentence first
     before serving the sentence imposed by another jurisdiction, be
     it state or federal.

     While these specific statutes and cases are factually and legally
     distinguishable, [McLendon] submits that the principles

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      underlying them can be applied in a fair and equitable manner
      here.

Brief for McLendon at 6-7.

      Unfortunately for McLendon, he does not explain how we might do so,

especially when the present circumstance is controlled by an entirely

different statute that provides for an entirely different assessment and

application of principles governing credit for time served. The difficulties are

exacerbated   by   the   fact   that   Martin   and   Baasit   both   concerned

circumstances when the defendant was incarcerated on both the parole

violation and the new offense simultaneously. Here, by contrast, McLendon

posted bail on his earlier Monroe County offense and seeks credit for time

that must be attributed exclusively to his Luzerne County arrest, which was

effectuated while McLendon was free on bail on the Monroe County offense.

      Had McLendon not been arrested in Luzerne County during the

pendency of his Monroe County sentencing, he would have remained free on

bail and have been entitled to no credit.       Similarly, if McLendon had not

pleaded guilty to the Monroe County charges but had been arrested in

Luzerne County as he was in this case, he presumably would have served

precisely the same amount of time in Luzerne County pending disposition of

those charges as he did in this case. In effect, McLendon asks this Court to

give him the benefit of his Luzerne County incarceration in such a way as to

reward him for his later Luzerne County offense, as compared to another

offender who committed only the equivalent of the Luzerne County offense.



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       This flies in the face of extensive case law interpreting section 9760

contrarily to the practical effect of McLendon’s argument. As noted by the

trial court, in Doria, the Commonwealth Court honored the long-standing

rule that “credit for pre-sentence custody time cannot be earned against

criminal charges pending in a different county.” 630 A.2d at 982 (emphasis

omitted).      There, the court rejected defendant’s argument that his

simultaneous detention on charges in three separate counties should be

credited against all three sentences, because those sentences ultimately

were designated to run concurrently.               In Taglienti, the Commonwealth

Court similarly held that subsection 9760(a) “do[es] not permit a sentencing

court to provide a prisoner with credit for time served on another unrelated

offense.” 806 A.2d at 992.3

       We find that our decision in Commonwealth v. Miller, 655 A.2d 1000

(Pa. Super. 1995), controls the instant matter.            In that case, Miller was

arrested and charged with delivery of a controlled substance. He posted bail

and was released from custody.                 Nearly four months later, during the

pendency of the initial charge, Miller was arrested separately on an

unrelated charge of aggravated assault. Shortly thereafter, he was charged

separately with robbery associated with the same incident that had


____________________________________________


3
      We are not bound by the decisions of our sister Commonwealth Court,
but such decisions may furnish persuasive authority. Petow v. Warehime,
996 A.2d 1083, 1088 n.1 (Pa. Super. 2010).



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J-S08030-15



prompted the assault charge. He remained incarcerated for several months

on the latter two charges, but ultimately was acquitted on those charges.

During the pendency of those charges, Miller pleaded guilty to the drug

charge, and sentencing had been deferred. Ultimately, over a month after

his acquittal and release on the assault and robbery charges, he was

sentenced to confinement for the drug charge. Id. at 1001.

     Miller sought credit for all time served on the assault and robbery

charges prior to his sentencing on the drug charge. However, the trial court

gave him credit only for the handful of days that he served on the drug

charge between his arrest on that charge and when he posted bail.         On

appeal, Miller argued that subsection 9760(4), read in tandem with

subsection 9760(1), required that he be granted credit for the time he was

detained on the assault and robbery convictions of which he ultimately was

exonerated. This Court disagreed:

     Under the facts of the instant case, . . . [subsection] 9760(4) is
     inapplicable. Here, [Miller] was not in custody for any other
     charges at the time he was arrested for delivery of a controlled
     substance. He had been arrested on the drug charge on March
     26, 1993, and had posted bail on April 2, 1993. From the
     moment he posted bail on the drug charge and was released,
     [Miller] was no longer in custody on that charge. Therefore,
     when he was later arrested on unrelated charges and spent time
     in prison awaiting trial thereon, he was not entitled to credit on
     account of the drug charge. As to such charge he was free on
     bail and did not serve time.

Id. at 1003-04 (footnote omitted).




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     As in Miller, in this case, McLendon was arrested on the Monroe

County charge at issue herein and released on bail shortly thereafter,

remaining at liberty. Thus, when he was later arrested and incarcerated for

the unrelated Luzerne County charge, as to his Monroe County charge “he

was free on bail and did not serve time.” Id. at 1004. Consequently, his

Luzerne County incarceration had no bearing on the calculation of time

served in connection with his Monroe County sentence.      As in Miller, he

received credit for the time he was incarcerated on the Monroe County

charge before he posted bail.

     In what we might consider an alternative argument, McLendon

ventures the following proposition:

     [H]ad [McLendon] been sentenced on May 30 as originally
     ordered, his Monroe County time would have commenced as of
     that date. [McLendon] had no means to get to Monroe County
     jail from Luzerne County jail except through the appropriate
     exercise of jurisdiction over him by the serving of a writ of
     habeas corpus issued by the Court of Common Pleas of Monroe
     County. That procedure was eventually followed, however it was
     well beyond the original sentencing date.

     The failure of the Monroe County authorities to obtain the
     release of [McLendon] in timely fashion should not be held
     against [McLendon]. As set forth in [section] 9760, this period
     of time from May 30th to June 24th was additional time he spent
     in Luzerne pending sentence in Monroe County. Under the
     principles of equity and fairness espoused in Martin, supra, it is
     submitted that the time delay caused by the Commonwealth in
     procuring [McLendon’s] appearance in Monroe County while he
     was awaiting sentencing on their charges should be credited
     towards his minimum sentence. If Luzerne obtains a conviction
     and the defendant is sentenced there as well, at that point the
     court in that county can eliminate any time credited to his
     Monroe sentence.


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Brief for McLendon at 7-8 (emphasis in original).

      The deficiencies in this argument are considerable.     First, McLendon

provides no evidence of record to establish that the “Monroe County

authorities” did not “obtain the release of [McLendon] in timely fashion.”

More importantly, while his time in Luzerne County jail literally was time

“pending sentence in Monroe County,” that is of no moment. McLendon was

not detained in Luzerne County because he was pending sentence in

Monroe County.      He was incarcerated in Luzerne County for an entirely

separate charge.    In short, the argument derived from Monroe County’s

putative “jurisdiction” over McLendon does not contradict Miller’s application

of section 9760 as applied to the instant matter, and McLendon offers us no

authority that would justify our departure from Miller’s holding.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




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