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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
ANTHONY CIANCI,                           :         No. 1563 EDA 2016
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, April 29, 2016,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0003800-2008


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JUNE 27, 2017

        Anthony Cianci appeals pro se from the order of the Court of Common

Pleas of Delaware County that dismissed his PCRA1 petition without a

hearing. After careful review, we affirm.

        The record reflects that appellant entered into a negotiated guilty plea

to a charge of second degree felony robbery2 at case number 3527 of 2008

on August 18, 2008. At the same time, he entered into a negotiated guilty

plea to charges of criminal mischief, a misdemeanor of the second degree,3




1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
    18 Pa.C.S.A. § 3701(b)(1).
3
    18 Pa.C.S.A. § 3304(a)(4).
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and conspiracy4 to commit criminal mischief at case number 3800 of 2008.5

For the robbery conviction, the trial court sentenced appellant to a minimum

of 267 days which was time served to 23 months’ imprisonment in Delaware

County Prison.     The trial court sentenced appellant to a term of 2 years’

probation for criminal mischief concurrent to the robbery sentence and

1 year of concurrent probation for conspiracy.

        On August 6, 2010, the trial court held a Gagnon II6 hearing for

apparent probation violations.     The trial court imposed a new sentence of

2 years’ county probation on the criminal mischief offense.      The probation

term for criminal conspiracy had already expired.

        On September 15, 2010, appellant was convicted of recklessly

endangering another person (“REAP”) and resisting arrest7 and sentenced to

73 days to 23 months’ imprisonment followed by 1 year of probation. On

November 24, 2010, the trial court held a Gagnon II hearing and imposed

a term of 2 years of county probation on the criminal mischief conviction

consecutive to the sentence for REAP and resisting arrest.




4
    18 Pa.C.S.A. § 903(a)(1).
5
    The conviction which is at issue here.
6
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
7
    18 Pa.C.S.A. § 2705 and 18 Pa.C.S.A. § 5104, respectively.


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        On January 9, 2013, appellant was convicted of aggravated assault

and simple assault8 and was sentenced to an aggregate term of 5½ to

11 years’ imprisonment followed by 5 years’ probation. On March 13, 2014,

the trial court held a Gagnon II hearing and imposed a state sentence of 12

to 24 months’ imprisonment for the criminal mischief conviction and 6 to

12 months’ imprisonment on the REAP and resisting arrest conviction for an

aggregate term of 18 to 36 months.

        Appellant appealed the March 13, 2014 sentences to this court and

argued that the sentences were excessive.       On May 29, 2015, this court

affirmed.     Commonwealth v. Cianci, 122 A.3d 460 (Pa.Super. 2015)

(unpublished memorandum).

        On November 2, 2015, appellant filed a pro se PCRA petition and

alleged that he did not receive proper credit for time served, the original

sentence had expired, and that the sentencing was barred by double

jeopardy.    On November 10, 2015, the trial court appointed counsel.   On

February 17, 2016, appointed counsel filed a no-merit letter pursuant to

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The

trial court granted appointed counsel permission to withdraw.   On April 4,

2016, the trial court gave appellant notice of its intention to dismiss the

PCRA petition without an evidentiary hearing. On April 29, 2016, the trial

court dismissed the PCRA petition.


8
    18 Pa.C.S.A. §§ 2702(a) and 2701(a), respectively.


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      On May 16, 2016, appellant filed a notice of appeal to this court. On

May 26, 2016, the trial court ordered appellant to file a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

failed to comply with this order. On August 10, 2016, the trial court filed its

opinion and stated that appellant’s appeal should be quashed due to

appellant’s failure to file a Rule 1925(b) statement.

      In order to preserve claims for appellate review, an appellant must

comply when the trial court orders the production of a concise statement of

errors complained of on appeal.         Any issue not raised in a Rule 1925(b)

statement is deemed waived. Commonwealth v. Lord, 719 A.2d 306, 309

(Pa. 1998).        However, when an appellant raises an issue concerning the

illegality of sentencing, such an issue is not waived even if the appellant

failed to file a Rule 1925(b) statement when ordered to by the trial court.

See Commonwealth v. Williams, 920 A.2d 887, 888 n.3 (Pa.Super.

2007).

      In his brief, appellant raises the following two issues for this court’s

review:

              1.      Did the Trial Court err and abuse its discretion
                      when recommitting [appellant] 24 months
                      after serving his total sentence?

              2.      [W]as Direct Appeal Counsel ineffective when
                      failing to raise the issue of Double Jeopardy in
                      [appellant’s] Direct Appeal?

Appellant’s brief at 2.



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     Both issues at least indirectly relate to the potential illegality of the

sentence appellant received. Double jeopardy claims implicate the legality

of a sentence and are not subject to waiver.        See Commonwealth v.

Andrews, 768 A.2d 309, 313 (Pa. 2001), citing Missouri v. Hunter, 459

U.S. 359, 366 (1983). Therefore, this court will address both issues.

     PCRA petitions are subject to the following standard of review:

           “[A]s a general proposition, we review a denial of
           PCRA relief to determine whether the findings of the
           PCRA court are supported by the record and free of
           legal error.” Commonwealth v. Dennis, 609 Pa.
           442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
           A PCRA court’s credibility findings are to be accorded
           great deference, and where supported by the record,
           such determinations are binding on a reviewing
           court. Id. at 305 (citations omitted). To obtain
           PCRA relief, appellant must plead and prove by a
           preponderance of the evidence: (1) his conviction or
           sentence resulted from one or more of the errors
           enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
           claims have not been previously litigated or waived,
           id. § 9543(a)(3); and (3) “the failure to litigate the
           issue prior to or during trial . . . or on direct appeal
           could not have been the result of any rational,
           strategic or tactical decision by counsel[.]”        Id.
           § 9543(a)(4).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

     Section 9543(a)(2)(vii) of the PCRA, provides that the imposition of a

sentence greater than the lawful maximum is a condition eligible for relief

under the PCRA.    A claim that a prisoner did not receive credit for time

served invokes the legality of sentence and is cognizable under the PCRA.




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See Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa.Super. 2007),

appeal denied, 944 A.2d 756 (Pa. 2008).

      Appellant correctly asserts that when he was originally sentenced on

the robbery conviction, he received a sentence of 267 days to 23 months’

imprisonment with a credit of 267 days for time served. At the same time,

he was sentenced to a 2-year concurrent term of probation for criminal

mischief. Appellant argues that the 267 days of credit he received for the

robbery should also have been applied to the criminal mischief sentence so

that he would have served 267 days of the 2-year probationary sentence.

As a result, when appellant was resentenced to serve 2 years of probation

on August 6, 2010, he argues that he should have only received at most

probation for 463 days, if the 267 days of credit were correctly applied.

      Appellant fails to cite any statute, regulation, or case law to support

his theory. Although a sentencing court has the option to sentence someone

to concurrent or consecutive sentences if more than one conviction exists,

there is no legal support for appellant’s theory that his probationary

sentence is reduced based on credit for time served. Section 9760(a) of the

Sentencing Code provides:

            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


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                    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(a)(1).

      Here, appellant did not receive a prison sentence for the criminal

mischief charge for which he received the probationary sentence.            Also,

there is nothing in the record to indicate that he was incarcerated at any

time on the criminal mischief charge prior to sentencing.         This contention

has no merit.

      Further, appellant is not entitled to duplicate credit for time served.

Commonwealth v. Hollawell, 604 A.2d 723, 726 (Pa.Super. 1992).                He

received credit for his period of incarceration on a totally separate crime, the

robbery.    He is not entitled to credit for time served on two unrelated

convictions.

      Appellant next contends that his sentence of 12 to 24 months’

imprisonment violates North Carolina v. Pearce, 395 U.S. 711, (1969),

because he will have been “held in the confines of this offense for a total of

8 years.”      (Appellant’s brief at 7.)     Pearce involves three separate

constitutional protections: a protection against a second prosecution for the

same offense after acquittal, a second prosecution for the same offense after

a conviction, and multiple punishments for the same offense. Id.



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       Appellant appears to argue that he has received multiple punishments

for the same offense because he twice had the probation re-imposed at

Gagnon hearings and then had a prison sentence imposed for criminal

mischief at the most recent Gagnon hearing.

       Section 9771 of the Sentencing Code provides that a sentencing court

may revoke an order of probation upon proof of the violation of specified

conditions of probation.     Upon revocation of probation, the sentencing

alternatives available to the sentencing court are the same as were available

at the initial sentencing.9 A sentence of total confinement on the revocation

of probation is permitted if the defendant has committed a crime.

42 Pa.C.S.A. § 9771(c)(1).

       Here, upon convictions of various crimes, appellant had his probation

reinstated twice and imprisonment was ordered the third time.                The

sentencing court acted within its authority. There was no violation of double

jeopardy.

       Finally, appellant asserts that his counsel was ineffective because he

failed to raise the claim of double jeopardy in appellant’s direct appeal.

            In evaluating claims of ineffective assistance of
            counsel, we presume that counsel is effective.
            Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
            435, 441 (Pa. 1999).            To overcome this
            presumption, Appellant must establish three factors.
            First, that the underlying claim has arguable merit.
            See Commonwealth v. Travaglia, 541 Pa. 108,
            661 A.2d 352, 356 (Pa. 1995). Second, that counsel

9
    See Commonwealth v. Fusselman, 866 A.2d 1109 (Pa.Super. 2004).


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          had no reasonable basis for his action or inaction.
          Id. In determining whether counsel’s action was
          reasonable, we do not question whether there were
          other more logical courses of action which counsel
          could have pursued; rather, we must examine
          whether counsel’s decisions had any reasonable
          basis.      See Rollins, 738 A.2d at 441;
          Commonwealth v. (Charles) Pierce, 515 Pa. 153,
          527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
          must establish that he has been prejudiced by
          counsel’s ineffectiveness; in order to meet this
          burden, he must show that ‘but for the act or
          omission in question, the outcome of the proceedings
          would have been different.’” See Rollins, 738 A.2d
          at 441 (quoting Travaglia, 661 A.2d at 357). A
          claim of ineffectiveness may be denied by a showing
          that the petitioner’s evidence fails to meet any of
          these prongs.       Commonwealth v. (Michael)
          Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
          2001); Commonwealth v. Basemore, 560 Pa. 258,
          744     A.2d    717,    738      n.23    (Pa.   2000);
          Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
          693, 701 (Pa. 1998) (“If it is clear that Appellant has
          not demonstrated that counsel’s act or omission
          adversely affected the outcome of the proceedings,
          the claim may be dismissed on that basis alone and
          the court need not first determine whether the first
          and second prongs have been met.”). In the context
          of a PCRA proceeding, Appellant must establish that
          the ineffective assistance of counsel was of the type
          “which, in the circumstances of the particular case,
          so undermined the truth-determining process that no
          reliable adjudication of guilt [or] innocence could
          have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). See
          also (Michael) Pierce, 786 A.2d at 221-22;
          Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d
          326, 333 (Pa. 1999).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

     Although we could find any ineffectiveness claim waived for failure to

file the Rule 1925(b) statement, we have already determined that



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appellant’s claim of double jeopardy has no merit.      Therefore, appellant’s

claim that his counsel was ineffective because he failed to raise this claim of

a violation of the constitutional protection against double jeopardy also has

no merit. See Commonwealth v. Hanible, 30 A.3d 426, 441 (Pa. 2011)

(reiterating that counsel cannot be deemed ineffective for failing to raise a

meritless claim).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017




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