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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    JESSE WILLIS KNIGHT, IV                    :
                                               :
                       Appellant               :   No. 550 MDA 2019

       Appeal from the Judgment of Sentence Entered February 28, 2019
                In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000052-2013


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED DECEMBER 05, 2019

        Jesse Willis Knight appeals from the judgment of sentence entered in

the Adams County Court of Common Pleas on February 28, 2019, following

resentencing after a successful petition filed pursuant to the Post Conviction

Relief Act1 (“PCRA”). Additionally, Knight’s court appointed counsel seeks to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and grant

counsel permission to withdraw.

        On March 18, 2013, Knight entered a negotiated guilty plea to Count 1

– possession with intent to deliver (“PWID”) and Count 2 – criminal conspiracy

to deliver a controlled substance. On April 18, 2013, the court sentenced him,


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1   42 Pa.C.S.A. §§ 9541-9546.
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pursuant to the negotiated plea agreement, to concurrent sentences of thirty-

six months in the Intermediate Punishment Program (“IPP”) for each count

(“the original sentence”). The sentencing guideline form indicated that the

statutory maximum sentence for each count was sixty months’ imprisonment.

       After a revocation hearing, the court found that Knight had violated the

conditions of the IPP by making a threatening phone call to his father-in-law

and by bringing contraband into the prison. The court revoked his IPP sentence

and, on January 16, 2014, Knight was resentenced to concurrent sentences

of ten to twenty-three months and twenty-nine days’ incarceration with a

concurrent term of thirty-six months’ probation (“the VOIPP sentence”).2

       On August 3, 2015, the court found that Knight had successfully

completed his parole, and therefore terminated his parole. Knight continued

to serve the probation portion of his sentence.

       In the meantime, Knight was charged with possession of marijuana and

imprisoned pending a Gagnon hearing.3 On February 22, 2016, he was

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2 The first VOP sentence was made retroactive to May 17, 2013 due to the
fact he had been detained on the violation since that date.

3 Referencing Gagnon v. Scarpelli, 411 U.S. 778 (1973). “When a parolee
or probationer is detained pending a revocation hearing, due process requires
a determination at a pre-revocation hearing, a Gagnon I hearing, that
probable cause exists to believe that a violation has been committed. Where
a finding of probable cause is made, a second, more comprehensive hearing,
a Gagnon II hearing, is required before a final revocation decision can be
made.” Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000).




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resentenced on Count 2 to one-hundred and twenty-four to two-hundred and

forty-eight days’ partial confinement, which maxed out with credit for time

served of 248 days.4 On Count 1, he was resentenced to thirty-six months’

probation and immediately released (“the first VOP sentence”).

       On July 31, 2017, Knight was detained pending a Gagnon hearing on

allegations that he had been charged with possession of controlled substance

in Philadelphia. His probation was revoked and, on January 29, 2018, he was

resentenced on Count 1 to six to twelve months’ partial confinement plus a

consecutive twenty-four months’ probation (“the second VOP sentence”). The

sentencing order included credit for time served of 212 days.

       Soon thereafter, Knight was charged with several summary violations of

the vehicle code, and, in an unrelated incident, testing positive for cocaine.

His probation was revoked, and, on June 25, 2018, the court recommitted him

for the unexpired balance of five months plus one day, gave him forty-eight

days credit for time served, and terminated his parole. On the probation

portion of his sentence, the court resentenced him to fifteen to thirty months’

incarceration (“the third VOP sentence”). In doing so, the court noted that this

was his fourth revocation case since 2013, and that it appeared all local

rehabilitative efforts had been exhausted.




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4Knight had been detained for the violation of probation since June or July of
2015.

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       On December 18, 2018, Knight filed a PCRA petition arguing his new

sentence was illegal because it was greater than the lawful maximum. The

petition was granted and the June 25, 2018 sentence was vacated after all

parties agreed Knight was entitled to relief. On February 28, 2019, the trial

court resentenced him on Count 1 to one to two years’ incarceration (“the

post-PCRA sentence”). The sentencing order included credit for time served of

248 days.5

       On March 7, 2019, Knight filed a post sentence motion arguing he was

entitled to additional credit for time served. Specifically, Knight contended that

since his sentences had been run concurrent prior to the first VOP sentence,

the 248 day time credit he received on his first VOP sentence for Count 2, for

time spent on a detainer after the violation occurred, but prior to resentencing,

should additionally be applied as a credit to his sentence on Count 1. The court

denied the motion. This timely appeal followed.

       We turn first to counsel’s petition to withdraw. To withdraw pursuant to

Anders, counsel must:

       1) petition the court for leave to withdraw stating that, after
       making a conscientious examination of the record, counsel has
       determined that the appeal would be frivolous; 2) furnish a copy
       of the [Anders] brief to the [appellant]; and 3) advise the
       [appellant] that he or she has the right to retain private counsel
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5  This time credit was for time served on the fourth VOP sentence from the
date it was entered on June 25, 2018 until the date the post-PCRA sentence
was entered on February 28, 2019. Although this time credit is for the same
amount of time as the time credit at issue in the instant appeal – 248 days –
it is a separate time credit not at issue here.

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      or raise additional arguments that the [appellant] deems worthy
      of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of his or her rights in light of counsel’s

withdrawal, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

      An Anders brief must comply with the following requirements:

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the conclusion
      that the appeal is frivolous.

      Santiago, 978 A.2d at 361.

      “[I]f counsel’s petition and brief satisfy Anders, we will then undertake

our own review of the appeal to determine if it is wholly frivolous.”

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets

added, citation omitted).

      Counsel filed a petition to withdraw, certifying he has reviewed the case

and determined that Knight’s appeal is frivolous. Further, counsel attached to

his petition a copy of his letter to Knight, advising that he may retain new




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counsel, raise additional issues pro se, or discontinue his appeal.6 Counsel also

filed a brief, which includes a summary of the history and facts of the case,

potential issues that could be raised by Knight, and his assessment of why

those issues are meritless, with citations to relevant legal authority.

       Counsel has thus complied with the requirements of Anders and

Santiago. Knight has not filed a response. We may proceed to review the

issues outlined in the Anders brief.

       Counsel notes that Knight asserts he is due credit on the post-PCRA

sentence for Count 1. Specifically, he contends that since he was detained

pending a Gagnon hearing for violating the two concurrent VOIPP sentences,

he should have received credit on the sentences at each Count.

       A claim that a court failed to provide credit for time spent imprisoned

on a detainer implicates the legality of the sentence. See Commonwealth v.

Gibbs, 181 A.3d 1165, 1166-67 (Pa. Super. 2018). Our scope of review of

this claim is plenary and we review the trial court’s ruling de novo. See id.

       Our review of a sentence imposed following the revocation of probation

is limited to “determining the validity of the probation revocation proceedings

and the authority of the sentencing court to consider the same sentencing

alternatives that it had at the time of the initial sentencing.” 42 Pa.C.S.A. §


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6 Counsel’s petition does not contain verification that he served the petition
on Appellant. However, the petition and counsel’s letter to Knight are
contained as exhibits in counsel’s Anders brief, which does contain proof of
service on Knight.

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9771(b). See also Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super.

2000). “Revocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be disturbed

on appeal in the absence of an error of law or an abuse of discretion.”

Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super. 2008) (citations

omitted).

      The imposition of an original sentence which consists solely of a term of

probation has been held to be a conditional sentence, which merely defers

sentencing the defendant to a fixed term of confinement until such time as

the defendant violates the conditions of his probation. See Commonwealth

v. Pierce, 441 A.2d 1218, 1220 n.6 (Pa. 1982).

      Consistent with the understanding that probation is by nature a

conditional sentence, our Sentencing Code provides, “[u]pon revocation [of

probation] the sentencing alternatives available to the court shall be the same

as were available at the time of initial sentencing[.]” 42 Pa.C.S.A. § 9771(b).

We have similarly concluded that an appellant, “having violated the conditions

of his probation was placed in the same position that he was in at the time of

his original conviction.” Pierce, 441 A.2d at 1220.

      Since Knight was found to have committed a new crime when the first

VOP sentence was imposed, the court was limited only by the maximum

sentence it could have imposed when it initially sentenced him on Count 1.

See Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014).


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Therefore, the vacated sentence did not limit the sentencing court, since he

was returned to the same position he was in at the time of his original

sentencing.

      At the time of Knight’s original conviction, the sentencing court could

have imposed a term of total confinement of up to five years on each count,

see 35 P.S. § 780-113(f)(2), and run the sentences consecutively. See

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014). However,

the sentencing court instead imposed concurrent sentences of thirty-six

months’ IPP.

      At the time of Knight’s VOIPP hearing, the sentencing court possessed

the same sentencing alternatives that it had at the time of the initial

sentencing, i.e. up to five years per count, and the discretion to run each

sentence either concurrently or consecutively. See 42 Pa.C.S.A. § 9773. The

VOIPP sentence, in effect, limited the term of Knight’s total confinement to a

term of ten to twenty-three months and twenty-nine days on the condition

that he successfully complete a consecutive thirty-six month probationary

term. As noted previously, Knight did not satisfy this condition.

      At the time of Knight’s first VOP hearing, the sentencing court again

possessed the same sentencing alternatives that it had at the time of the initial

sentencing. This time, the court sentenced Knight to thirty-six months’

probation for count 1 and one-hundred and twenty-four to two-hundred and

forty-eight days of partial confinement for count 2. Since the court was not


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limited by the prior sentence, the court had the authority to sentence Knight

to thirty-six months of probation for Count 1 even though his prior sentence

for Count 1 had been a split sentence of incarceration plus a probationary tail.

       Further, in imposing the second VOP sentence, the court considered that

Knight had acquired a credit of 248 days from being detained on the violation

prior to the resentencing. The court applied this credit only to the sentence of

total confinement for Count 2. No credit was awarded for the sentence of

probation imposed pursuant to Count 1.

       We agree with counsel that the court was not required to duplicate

Knight’s credit at each Count. See, e.g., Commonwealth v. Bowser, 783

A.2d 348, 350 (Pa. Super. 2001). So long as Knight received credit for the

time he was imprisoned pursuant to the detainer, we cannot conclude the

court committed an error of law.

       Having reviewed the issue raised in counsel’s Anders brief, we agree

with counsel for Knight that the within appeal is wholly frivolous.7 As such, we

affirm the judgment of sentence and grant counsel’s motion to withdraw.

       Judgment of sentence affirmed. Petition for leave to withdraw granted.




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7Further, we note that our independent review of the record did not reveal
any additional, non-frivolous issues overlooked by counsel.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/05/2019




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