J-S40035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OARMELL WILLIS BURRELL                     :
                                               :
                       Appellant               :   No. 186 WDA 2019

              Appeal from the PCRA Order Entered July 30, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003355-2015


BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 16, 2019

        Oarmell Willis Burrell (Burrell) appeals from the order of the Court of

Common Pleas of Erie County (PCRA court) denying his PCRA petition seeking

time credit. We affirm as we find that PCRA counsel has waived the issue.

        On October 26, 2015, authorities found cocaine, heroin and drug

paraphernalia following a search warrant executed at Burrell’s residence.

Burrell was charged with two counts of Possession with Intent to Deliver and

Possession of Drug Paraphernalia.1 On April 4, 2017, Burrell was convicted

following a bench trial and sentenced on May 19, 2017, to 33 to 66 months’

incarceration followed by five years of probation. Burrell did not appeal.



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1   35 P.S. §§ 780-113(a)(30), (32).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       These proceedings commenced on January 2, 2018, when Burrell filed

a document captioned “Motion to Reconsider Granting Time Credit Under New

Circumstances Involving Petitioner.”           Motion, 1/2/18.   The PCRA court

construed this motion as a request for PCRA relief and appointed counsel, who

filed a supplemental PCRA petition on February 16, 2018.2 The PCRA court

issued a notice of intent to dismiss without a hearing and later dismissed the

petition.

       The only issue in Burrell’s appeal concerns his custodial status pending

trial. Burrell argued in his PCRA petition that he was entitled to ten months

of time credit for time spent in the Erie County Jail pending trial. The PCRA

court concluded that Burrell was not entitled to relief:



____________________________________________


2PCRA counsel’s “supplementary” petition simply incorporated and adopted
by reference the work done by Burrell in his pro se capacity stating:

       The Petitioner, Oarmell Burrell, filed a pro se Motion to Reconsider
       Granting Time Credit Under New Circumstances Involving
       Petitioner, which has been accepted and treated as a PCRA, which
       is hereby incorporated as if fully stated herein. The Petitioner has
       further submitted correspondence to the Court outlining the “new
       circumstances” referenced in his PCRA in regard to his federal
       court revocation and the continued absence of any provision of
       time credit for the 10 months he was incarcerated in this
       jurisdiction after being transferred from a prison in the State of
       Ohio. The Petitioner argues that the declination of this time credit
       constitutes an abuse of discretion and the imposition of an illegal
       sentence.

      The supplemental motion, thus, did little more than point the PCRA court
to the pro se materials.


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     As the sentencing Order indicates, credit was based on the fact
     that Petitioner was committed to prison on the Erie County drug
     offense on October 27, 2015. Bond was posted and he was
     released on October 28, 2015. A bench warrant was issued and
     served on July 19, 2016, then lifted on July 20, 2016. A total of
     4 days credit was applied to the above noted docket. The Order
     further clarifies that, “For the time the defendant was detained or
     held on a federal case or cases, the time served with respect to
     the federal charges would be applicable only to the federal
     case(s).” Sentencing Order, May 19, 2017, unnumbered footnote.
     Our investigation reveals that the remainder of the time served
     was on federal charges and detainers. Consequently, time credit
     can only be given by way of federally granted relief, if appropriate.

Amended Notice of Intent to Dismiss, 7/11/18, at 3-4.

     The entirety of Burrell’s rebuttal is as follows:

            The lower Court’s delineation and characterization of the
     appellant’s time in custody is wrong and misguided. The appellant
     was held in custody within the Erie County Prison while he was
     technically and literally still out on $50,000 bond. Thereupon,
     after 10 months of fighting his case and ultimately being found
     guilty at trial, the appellant was given a mere 4 days time credit.
     The appellant was told and the lower Court has predicated its
     ruling on the belief that the appellant was serving time at another
     jail, which was inaccurate.

     To the contrary, the appellant was not in custody in 2015, but still
     on state parole and also federal probation. The appellant was
     arrested on October 26, 2015 on drug charges. He posted a
     $50,000 bond on October 28, 2015 and was released from
     custody. After the County of Erie sent court papers to an address
     he was no longer residing at and receiving no response, a bond
     revocation hearing was scheduled for March 22, 2016. On March
     29, 2016, the Commonwealth’s Motion to Revoke and Forfeit Bond
     was withdrawn. After the appellant was picked up by federal
     marshals for probation violation arising from the charges he was
     then on bond for in Erie County, the appellant was placed in the
     Youngstown federal holdover facility CCA. The appellant’s counsel
     in federal court filed a motion precluding the federal government
     from taking his [sic] to court to violate the probation term without
     him first being found guilty of the state court charges in Erie
     County. Therefore, in accord with that motion, the federal court

                                     -3-
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       proceedings were tolled and suspended pending the adjudication
       of the state charges.

       The appellant personally put in a notice of availability to Erie
       County and they came and took him into custody on the open
       bench warrant and nothing more. On July 8, 2016, the appellant
       appeared in Erie County Court and the bench warrant was lifted,
       which meant that he should have been deemed free of custody or
       else sent back to the federal facility from which he had been taken.
       Instead, Erie County mistakenly placed him in custody and held
       him with no bond under some different pretext. The appellant
       was then held by Erie County without any legal basis and then to
       add insult to injury the appellant has never been afforded the time
       credit for the 10 months spent in custody in Erie County Prison.

Burrell’s Brief at 4-5.3

       Burrell does not cite or discuss the statutory provisions governing credit,

nor does he even specifically delineate which time periods are at issue.

Counsel did not enter the federal docket into the certified record, to say

nothing of the referenced motions and pleadings. Due to these failures, we

deem the argument waived. “The failure to develop an adequate argument in

an appellate brief may result in waiver of the claim under Pa.R.A.P. 2119.”

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007).



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3 This claim is cognizable under the PCRA as Burrell challenges the failure to
award credit, not the computation of awarded credit. “[A] challenge to the
trial court’s failure to award credit for time spent in custody prior to sentencing
involves the legality of sentence and is cognizable under the PCRA.”
Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007) (citation
omitted). Where the sentencing court orders credit for time served and the
petitioner asserts the Department of Corrections has miscalculated the
appropriate time credit, the suit must be filed in Commonwealth Court. See
Commonwealth v. Heredia, 97 A.3d 392, 394-95 (Pa. Super. 2014).


                                           -4-
J-S40035-19


       Notwithstanding, Burrell is not entitled to relief. Burrell acknowledges

that he posted bond and was released on this case. The fact that he was later

arrested and held in the Erie County Jail for some other reason is irrelevant,

as a court must give credit “for all time spent in custody as a result of the

criminal charge for which a sentence is imposed as a result of the conduct on

which such a charge is based.” 42 Pa.C.S. § 9760(1). Once he posted bail,

Burrell was no longer in custody as a result of this charge. Therefore, even if

properly preserved and presented, this argument would not afford relief.4

       Order affirmed.




____________________________________________


4 We note that Burrell pleaded guilty in the United States District Court for the
Western District of Pennsylvania in February 2006 and was released in
December 2014. The federal docket for his 2006 conviction indicates that
Burrell was arrested on March 9, 2016, which was one week after the
Commonwealth filed a motion to revoke Burrell’s bond due to his failure to
appear for arraignment. Presumably, this is why the Commonwealth withdrew
its motion to revoke bond: the federal government arrested Burrell and had
a detainer because his arrest on these charges was a violation of his federal
supervision.

That term of supervised release was revoked on December 14, 2017, and he
was sentenced to a term of 36 months set consecutive to any other sentence.
That sentence will presumably commence upon completion of the sentence at
this docket, with time credit assessed by the Bureau of Prisons at that time.

                                           -5-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2019




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