J-A02041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH THOMAS COYNE                         :
                                               :
                       Appellant               :   No. 904 MDA 2018

                   Appeal from the PCRA Order May 4, 2018
     In the Court of Common Pleas of Lebanon County Criminal Division at
                       No(s): CP-38-CR-0000139-2016,
                           CP-38-CR-0000203-2016


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 18, 2019

       Appellant Keith Thomas Coyne appeals from the order denying his

timely first petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Appellant argues that plea counsel’s ineffectiveness

caused him to enter an unknowing and involuntary plea. He also claims that

counsel’s failure to specify the dates of Appellant’s time credit resulted in 355

days of uncredited time towards his sentence. We affirm.

       Appellant, while on state parole from a previous matter,1 was arrested

for driving under the influence (DUI) and related offenses on July 24, 2015.

See CP-38-CR-139-2016. Appellant was released on bail, and on December

5, 2015, Appellant was arrested for another DUI and related offenses. See
____________________________________________


1 Appellant was paroled from a state correctional institution on unrelated
charges in Lackawana County on October 27, 2011. Appellant’s maximum
date of supervision in that case was February 9, 2020.
J-A02041-19



CP-38-CR-203-2016. That same date, the Pennsylvania Board of Probation

and Parole (Board) lodged a detainer against Appellant.

        Appellant waived his preliminary hearing in both cases on January 14,

2016. On February 5, 2016, the Commonwealth filed a criminal information

at 139-2016, charging Appellant with DUI (fourth or subsequent offense) and

two summary traffic violations.2 On February 11, 2016, the Commonwealth

filed a criminal information at 203-2016, charging Appellant with fleeing or

attempting to elude a police officer, DUI (fourth or subsequent offense),

recklessly endangering another person (REAP), receiving stolen property

(RSP), and eight summary traffic violations.3

        On September 20, 2016, Appellant, who was represented by plea

counsel, executed written guilty plea colloquies and entered a negotiated

guilty plea to fleeing or attempting to elude a police officer, DUI, REAP, RSP,

and DUI with a suspended license. See Written Guilty Plea Colloquies, 203-

2016 & 139-2016, 9/20/16.

        In relevant part, the written colloquies provided that (1) the agreed-

upon sentence was either state intermediate punishment (SIP) or, if Appellant

was not accepted to SIP, then a term of two to five years’ incarceration; (2)

no promises had been made other than the terms of the negotiated plea

____________________________________________


2   75 Pa.C.S. §§ 3802(a)(1), 4703(a), and 1543(b)(1.1)(i).

3 75 Pa.C.S. §§ 3733(a), 3802(a)(1); 18 Pa.C.S. §§ 901(a), 3925(a); 75
Pa.C.S. §§ 1543(b)(1.1)(i), 1501(a), 3736(a), 3323(b), 3323(b), 3308(a),
1372(1), and 3361.

                                           -2-
J-A02041-19



agreement; (3) the sentencing court was not bound by the terms of the plea

agreement; (4) the plea could be withdrawn if the sentencing court rejected

the plea agreement; and (5) the plea would result in a parole violation for

which a term of incarceration may be imposed. Id. at 1-6.

      That same day, Appellant participated in an oral plea colloquy with the

Honorable Robert J. Eby. During the colloquy, the court reiterated the terms

of Appellant’s negotiated plea as follows:

      [The Court]: The plea agreement as to both counts is identical.
      That is[,] the sentencing Judge will direct your entry into the State
      Intermediate Punishment Program. If for any reason you were
      not accepted into that program, you will receive a two-to-five year
      sentence in a state institution. Do you understand that plea
      agreement?

      [Appellant]: Yes, I do.

      [The Court]: Is that your agreement?

      [Appellant]: Yes. Your Honor, would that be running concurrent
      with any and all charges?

      [The Court]: There is nothing reflected in the plea agreement one
      way or the other.

      [Appellant]: Should it be there?

      [The Court]: That is the Judge’s discretion at sentencing.

      [Appellant]: At sentencing?

      [The Court]: Yes, sir.

      [Appellant]: Thank you.

      [The Court]: Do you understand?

      [Appellant]: Yes.

N.T. Guilty Plea Hr’g, 9/20/16, at 3-4.


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       On November 16, 2016, Appellant proceeded to sentencing before the

Honorable Samuel A. Kline. At that time, plea counsel indicated that Appellant

was not approved for SIP. Plea counsel requested that the court impose the

negotiated plea of two to five years’ state incarceration, and the court agreed.

N.T. Sentencing, 11/16/16, at 2-4. Plea counsel noted that Appellant was a

veteran with a history of drug and alcohol addiction, and explained to the court

that Appellant had a pending DUI charge in Dauphin County 4 along with a

state parole violation. Id. at 3.

       The court thereafter sentenced Appellant to an aggregate term of two

to five years’ imprisonment.5           Id.    Although not included in the plea

agreement, the court also made Appellant eligible for the Recidivism Risk

Reduction Incentive Program (RRRI), and explained to Appellant that the RRRI

designation may result in a minimum sentence of less than two years. Id. at

17-18.

       The trial court ordered that Appellant receive credit for time served, but

indicated that “[a]ll of those credits are solely in the discretion of the DOC.”

Id. at 17. At the conclusion of the hearing, Appellant asked the court whether

his sentences would run concurrent to his parole violations, and the court
____________________________________________


4It appears that Appellant was charged in the Dauphin County case in October
of 2015.

5 The trial court’s aggregate sentence in this matter included concurrent terms
of one to two years’ incarceration for fleeing/eluding a police officer, six to
twelve months’ incarceration for RSP, and sixty to ninety days’ incarceration
for driving with a suspended license, and a consecutive term of one to three
years’ incarceration for DUI.

                                           -4-
J-A02041-19



stated, “I can’t say that, because I don’t have control over the [parole

violation].” Id. at 18. Appellant did not file any post-sentence motions or a

direct appeal.

      Appellant, acting pro se, timely filed his first PCRA petition, which the

PCRA court docketed on November 1, 2017.          Thereafter, the PCRA court

appointed counsel, Melissa Rae Montgomery, Esq., who filed an amended

petition on December 18, 2017.

      Appellant argued that he was deprived of his “constitutionally

guaranteed right to a fair sentence” because he is serving a sentence different

from the one intended by the trial court. See Am. PCRA Pet., 12/18/17, at 1.

Appellant also asserted that the trial court’s intended sentence was illegal,

because (1) he was statutorily precluded from serving a backtime sentence

concurrent with his plea sentence; and (2) he was not eligible for RRRI. See

Am. PCRA Pet., 12/18/17, at 1; see also Pro Se PCRA Pet., 11/1/17, at 9

(unpaginated).

      Moreover, Appellant claimed that plea counsel was ineffective for failing

to advise Appellant that he was ineligible for RRRI due to his REAP conviction

and that he could not serve a backtime sentence concurrent with his new

sentence. See Am. PCRA Pet., 12/18/17, at 1; see also Pro Se PCRA Pet.,

11/1/17, at 9 (unpaginated). Appellant concludes that, as a result of plea

counsel’s failures, Appellant’s guilty plea was not knowing or voluntary. See

Am. PCRA Pet., 12/18/17, at 1; see also Pro Se PCRA Pet., 11/1/17, at 9

(unpaginated).

                                     -5-
J-A02041-19



      Finally, Appellant argued that plea counsel was ineffective for failing to

object when the trial court ordered that the DOC would determine the amount

of Appellant’s time credit. See Am. PCRA Pet., 12/18/17, at 2; see also Pro

Se PCRA Pet., 11/1/17, at 11 (unpaginated). He also argued that counsel

failed to ensure that the specific dates for his time credit were placed on the

trial court’s sentencing order. See Am. PCRA Pet., 12/18/17, at 2; see also

Pro Se PCRA Pet., 11/1/17, at 12 (unpaginated).

      On May 3, 2018, the PCRA court held an evidentiary hearing, at which

both Appellant and plea counsel testified. Appellant testified that his guilty

plea was based on plea counsel’s advice that (1) Appellant would be eligible

for RRRI; and that (2) Appellant’s plea sentence would run concurrent with

his parole violation sentences. N.T. PCRA Hr’g, 5/3/18, at 7, 11. Specifically,

Appellant testified that he had multiple conversations with plea counsel about

whether his sentence would run concurrent with his parole violation, and that

based on those conversations, Appellant was “under the assumption that was

the case.” Id. Appellant also indicated that “in the sentencing order, Judge

Kline said I believe that was the case, that everything is concurrent. It says

for all other sentences.” Id. at 12. Finally, Appellant testified that although

the trial court awarded him credit for time served, he did not receive credit

for 355 days that he spent in custody. Id. at 14.

      Plea counsel testified that he made no guarantees to Appellant

concerning his RRRI eligibility. Id. at 26. He explained that the terms of the

plea agreement were fully outlined on the guilty plea colloquies, which did not

                                     -6-
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mention RRRI.    Id.   Further, plea counsel testified that if there was “a

guarantee on [RRRI] in some way, I would have put that on the written plea

bargain and I would have completed that written section before [Appellant]

went through and ‘X’d’ the answer[s] and initialed the bottom of every page,

and signed at the end of that.” Id.

     Plea counsel also testified that although Appellant’s impending parole

violation had been discussed frequently, he never told Appellant that his

parole violation sentence would run concurrently with his plea sentence. Id.

at 25. Plea counsel explained that he “made other very direct representations

to [Appellant] that we couldn’t determine how the [parole violation] would be

run.” Id. Specifically, he told Appellant that “the best we could do is hope

and request the sentencing judge to run all of the time on these cases

concurrent to each other and concurrent to any other sentences he is serving,

which is ultimately what Judge Kline did [in] his sentence.” Id.

     At the conclusion of the hearing, the PCRA court concluded that plea

counsel’s testimony was credible, and that plea counsel did not make any

promises to Appellant concerning his RRRI eligibility. The court also found

that counsel did not misrepresent the fact that there was “no guarantee about

what the Parole Board would or could do.”       Id. at 32.    The PCRA court

explained:

     I’m going to make a finding that I believe [plea counsel], who is
     a member of the Lebanon County Bar for a number of years, was
     credible, honest, and discussed with [Appellant] a variety of items,
     not limited to no guarantee about what the Parole Board would or


                                      -7-
J-A02041-19


        could do, nor could this court make.       I think there are some
        references to the transcript in that.

        Let’s deal with the guilty plea. He plead guilty to a sentence of 2
        to 5 years. It was silent as to concurrent or consecutive. This
        isn’t a case where I did that. I made it concurrent. How could
        that be actionable under the PCRA?

        Second, there was no guarantee on the RRRI eligibility in the
        guilty plea, but I made [Appellant] RRRI eligible.           I gave
        [Appellant] something that he didn’t even negotiate. The problem
        comes in at the Board determines that, and found that he wasn’t
        eligible. That is neither the fault of [plea counsel], nor the fault
        of the court. It’s the decision of the Board of Probation and Parole,
        and [Appellant] had an opportunity to appeal and he did. That
        decision was denied. That is not actionable under the PCRA Act.
        Accordingly, that part of the PCRA is dismissed.

        Now the assertion that I wouldn’t have entered into this plea if I
        had known all of this is also not actionable because Judge Eby
        clearly defined in the transcript[6] that it could be either
        consecutive or concurrent. I gave him the lesser. I gave him 2
        years to 5 years, but I gave him RRRI eligible. To now come at
        this point and say I was confused is not consistent with the record.

        I find that [plea counsel]’s testimony to be consistent and
        [Appellant] was advised of these risks.          Unfortunately for
        [Appellant], they came true. And I say that because I wish the
        Board of Probation and Parole had ruled differently for him
        because of the circumstances. What I wished for [Appellant] and
        what happens in this PCRA hearing are two different things. There
        is nothing in the petition that merits a consideration that grants a
        PCRA finding [plea counsel] not competent or finding that he
        hadn’t fulfilled his duties. He did everything that he could . . . to
        represent this [Appellant] diligently and he did so. As a matter of
        fact, he convinced the court to grant RRRI eligibility.           The
        unfortunate part for [Appellant] is not something that Attorney
        Warner failed to do, it’s something that the Board of Parole didn’t
        do. But that was a risk that I believe [plea counsel] had told him.
        He couldn’t control that. As a matter of fact, [plea counsel]
        indicated that he had trouble getting answers from them and he
        explained that to him. How could he, he being [plea counsel] or

____________________________________________


6   See N.T. Guilty Plea, 9/20/16.

                                           -8-
J-A02041-19


     this court, know that the Board of Probation was going to run the
     violations consecutive or stack them?

     By your own admission, [Appellant], you acknowledge that you
     had a series of DUIs. If we were to make PCRAs cogn[iz]able
     because of these potentials, this court would be opened up to
     every person who has an adverse decision by the Board of
     Probation and Parole to a PCRA claim that is not actionable based
     on the construct that they believed that even though the Judge
     sentenced them to what they wanted, they are not getting that
     benefit of the bargain now, and were somehow misled. You
     weren’t misled by [plea counsel]. He told you the potentials for
     that, he just didn’t know what was going to happen. He hoped for
     that, but it didn’t.

     Moreover [Appellant], you had an opportunity to address an error
     that was created by the Board of Probation through the
     administrative appeals. You didn’t convince them that it was
     actionable and therefore took this step, which I’m not blaming
     you. I probably would have done the same thing too if I was in
     the same boat as you. But being in the same boat and asking the
     court for it is different than whether the court can grant it. I
     believe the court does not have the authority to consider the RRRI
     eligibility. More importantly, when you look at the Post Conviction
     Relief Act, I have to find some error by [plea counsel]. I can’t find
     that either. [Plea counsel] got you the best deal you could have
     gotten under the plea, even better than what the deal was. The
     court sentenced you consistent with that. What happened to you
     was beyond this court and well beyond any representation by
     [plea counsel], which I found to be excellent and the best he could
     do for you.

                                    ***

     And may I say, and don’t take this as a threat because I, in no
     way, want to make it sound like that, had you gone to trial on
     these matters, you likely would have gotten a larger sentence than
     you already did and they may have been consecutive. What
     Attorney Warner got for you was the best you could get. What is
     unfortunate for you is the Board of Probation and Parole and their
     determinations of your violations of other sentences, not these,
     determined they were going to stack those. I can’t control that.
     You had a remedy and that was an appeal which you took and I
     believe based on what you told me you took, and it was adverse
     to you.


                                     -9-
J-A02041-19



N.T. PCRA Hr’g, 5/3/18, at 32-36 (some capitalization omitted).

       On May 4, 2018, the PCRA court entered an order denying Appellant’s

PCRA petition. Appellant filed a timely notice of appeal on June 1, 2018, and

a Pa.R.A.P. 1925(b) statement on June 11, 2018. On July 26, 2018, in lieu of

a Rule 1925(a) opinion, the PCRA court issued an order directing this Court to

review a portion of the PCRA hearing transcript in which the court set forth its

findings of fact. See Order, 7/26/18; see also N.T. PCRA Hr’g, 5/3/18, at

32-26.

       On appeal, Appellant presents the following issues for our review:

       1. Whether the Appellant was denied his constitutionally
          guaranteed right to a fair sentence when the trial court
          intended for Appellant’s sentence to be served concurrent with
          anything else he was serving at the time and that he would be
          RRRI eligible; however, Appellant’s sentence is being served
          consecutively and he is not RRRI eligible[.]

       2. Whether Appellant was denied his constitutionally guaranteed
          right to effective representation when his prior counsel failed
          to specify the dates Appellant should be awarded time credit
          for at the time of his sentencing[.]

Appellant’s Brief at 4 (some capitalization omitted).

       In his first claim, Appellant essentially argues that plea counsel’s

ineffectiveness caused him to enter an involuntary and unknowing guilty plea.7

____________________________________________


7 To the extent Appellant suggests that he was deprived of his “constitutionally
guaranteed right to a fair sentence” because he is serving a sentence different
from the one intended by the trial court, no relief is due. See Appellant’s Brief
at 4, 7. At the outset, we note that Appellant’s argument on this matter
consists of single sentences in his issues presented and the argument section



                                          - 10 -
J-A02041-19



Id. at 7.     Specifically, Appellant asserts that plea counsel should have

informed him that (1) he was ineligible for RRRI due to his REAP conviction;

and (2) the trial court could not order the instant sentence to run concurrently

with Appellant’s parole violation sentence. Id. at 10. Appellant maintains

that he could not have entered a voluntary plea because it was based on plea

counsel’s “misleading information and discussions with Appellant.” Id. at 13.

Appellant asserts that “he only accepted the guilty plea because he was under

the impression that he would be receiving a minimum sentence of 18 months.

He is now looking at a possible four[-]year sentence.” Id. at 11.

       Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

____________________________________________


of his brief. See id. Accordingly, this claim is waived. See Pa.R.A.P. 2119(a)
(stating that the argument must include discussion and citations to pertinent
authorities); see also Commonwealth v. Plante, 914 A.2d 916, 924 (Pa.
Super. 2006) (stating that “[w]e have repeatedly held that failure to develop
an argument with citation to, and analysis of, relevant authority waives the
issue on review” (citation and quotation marks omitted))

In any event, with respect to RRRI, we note that a court’s imposition of an
RRRI minimum sentence does not guarantee that a defendant will be paroled
on the expiration of that term. See Commonwealth v. Hansley, 47 A.3d
1180, 1188 (Pa. 2012) (stating that the parole board is ultimately responsible
for determining whether an offender is eligible for parole upon the completion
of the RRRI minimum sentence). Moreover, as to the consecutive nature of
the present sentences to his backtime sentence, the trial court did not order
Appellant’s sentence to run concurrent to his backtime sentence. See 61
Pa.C.S. § 6138(a)(5) (stating that once a parolee is recommitted as a
convicted parole violator, the original sentence and any new sentences must
be served consecutively).


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J-A02041-19



Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court; however, we apply a de novo standard of review to the PCRA

court’s legal conclusions.”   Commonwealth v. Mitchell, 105 A.3d 1257,

1265 (Pa. 2014) (citation omitted).

      To establish a claim of ineffective assistance of counsel, a petitioner

“must show, by a preponderance of the evidence, ineffective assistance of

counsel 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.” Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa. Super. 2007) (citation omitted).

      Counsel is presumed effective, and the burden is on the petitioner to

prove all three of the following prongs: “(1) the underlying claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her action

or inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different.” Id. (citation omitted); see Commonwealth v. Daniels, 963 A.2d

409, 419 (Pa. 2009).     It is well settled that “[c]ounsel cannot be deemed

ineffective for failing to pursue a meritless claim.” Commonwealth v. Loner,

836 A.2d 125, 132 (Pa. Super. 2003) (en banc) (citation omitted).

      “Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused [the

defendant] to enter an involuntary or unknowing plea.” Commonwealth v.

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Allen, 732 A.2d 582, 587 (Pa. 1999) (citation omitted). “In order to make a

knowing and intelligent waiver, the individual must be aware of both the

nature of the right and the risks and consequences of forfeiting it.”

Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citation

omitted). “To determine a defendant’s actual knowledge of the implications

and rights associated with a guilty plea, a court is free to consider the totality

of the circumstances surrounding the plea.” Allen, 732 A.2d at 588-89.

      Further, a “valid plea colloquy must delve into six areas: 1) the nature

of the charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4)

the presumption of innocence, 5) the sentencing ranges, and 6) the plea

court’s power to deviate from any recommended sentence.” Commonwealth

v. Reid, 117 A.3d 777, 782 (Pa. Super. 2015) (citation omitted).

“Furthermore, nothing in [Pa.R.Crim.P. 590] precludes the supplementation

of the oral colloquy by a written colloquy that is read, completed and signed

by the defendant and made a part of the plea proceedings.” Commonwealth

v. Bedell, 954 A.2d 1209, 1212-13 (citation omitted); see also Pa.R.Crim.P.

590 cmt. “A person who elects to plead guilty is bound by the statements he

makes in open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003)

(citation omitted).

      Here, the written plea colloquies contain Appellant’s handwritten

acknowledgements of the terms of his plea: “global plea . . . State IP program

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or if not accepted into State IP program 2yrs-5yrs.” See Written Guilty Plea

Colloquies, 203-2016 and 139-2016, 9/20/16, at 6. Appellant acknowledged

that no promises had been made beyond those terms, which he understood,

and wished to accept. Id.

      Additionally, at the oral colloquy, the trial court specifically advised

Appellant that the plea did not include any terms concerning whether

Appellant’s sentence would run concurrent or consecutive to other sentences.

See N.T. Guilty Plea Hr’g, 9/20/16, at 3-4.        Appellant indicated that he

understood. Id. Appellant is bound by his statements, which confirmed his

understanding of the terms included in his plea agreement, and demonstrates

the basis for his decision to plead guilty. See Pollard, 832 A.2d at 523.

      Moreover, testimony from the PCRA hearing established that plea

counsel made no guarantees to Appellant concerning his eligibility for RRRI,

nor did counsel advise Appellant that his plea sentence would run concurrent

with a future parole violation sentence. The PCRA court found plea counsel’s

testimony credible.     In light of the PCRA court’s credibility determinations,

which are supported by the record, we agree that Appellant’s decision to plead

guilty was not based on inaccurate advice from plea counsel. See Mitchell,

105 A.3d at 1265.

      Therefore, based on the totality of these circumstances, we agree with

the PCRA court that Appellant’s ineffectiveness claim lacks arguable merit.

See Allen, 732 A.2d at 587. Accordingly, the court properly denied PCRA

relief on this claim.

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      In his second issue, Appellant argues that although the trial court

awarded him credit for time served, counsel was ineffective for failing to

specify the dates for Appellant’s time credit. Appellant’s Brief at 15. Appellant

argues that plea counsel’s failure has resulted in “a total of 355 days in prison

that are not being credited to Appellant’s sentences.” Id. at 16.

      By way of background, at the PCRA hearing, Appellant testified that he

filed a petition with the Board seeking 355 days of credit for the time he spent

in custody pending disposition of the instant case.          See N.T. PCRA Hr’g,

5/3/18, at 13. The Board denied Appellant’s request, and explained that the

355 days would be credited towards Appellant’s new sentence, and not to his

backtime.    See Ltr. from Parole Board, 1/31/18, at 2.           The PCRA court

explained to Appellant that a decision from the Parole Board should be

appealed in Commonwealth Court, and not through the PCRA. See N.T. PCRA

Hr’g, 5/8/18, at 15.     The PCRA court further noted that counsel was not

ineffective for failing to request specific dates for time credit, as the trial court

properly ordered “credit for time served.” Id. at 34.

      Initially, we note that “[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) (citations omitted). “Issues relating to

the legality of a sentence are questions of law.” Commonwealth v. Furness,

153 A.3d 397, 405 (Pa. Super. 2016) (citation omitted). As such, our standard

of review is de novo, and our scope of review is plenary. Id.

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      Where a defendant is awaiting trial for new charges while simultaneously

awaiting disposition on an alleged parole violation, we have explained that

      all time served by a parole violator while awaiting disposition on
      new charges must be credited to the original sentence if he or she
      remains in custody solely on a Board detainer. If the defendant
      is incarcerated prior to disposition, and has both a detainer and
      has failed for any reason to satisfy bail, the credit must be applied
      to the new sentence by the sentencing court.

Commonwealth v. Mann, 957 A.2d 746, 751 (Pa. Super. 2008) (citations

omitted).

      In Mann, counsel for the defendant, who was on state parole, requested

that the trial court refrain from awarding the defendant credit for the time he

was incarcerated prior to disposition of his new charges. Id. Instead, defense

counsel asked that the credit be “reserved” and applied towards the

defendant’s imminent recommitment to serve backtime on his parole

violation. Id. at 748. The trial court granted defense counsel’s request, and

issued an order stating that the defendant “is given no time credit for any of

the time spent on these charges and that time is to go towards other matters,

the state parole violations.” Id. at 748. On appeal, this Court held that it was

error for the trial court to comply with counsel’s request. Id. at 748-49. This

Court ultimately agreed with the defendant’s assertion that it “was not legally

appropriate, since he was entitled to the credit, and the sentencing court was

not at liberty to reserve the credit for a later parole disposition.” Id. at 748.

      Recently, in Commonwealth v. Gibbs, 181 A.3d 1165 (Pa. Super.

2018), a panel of this Court reiterated that when a defendant remains in

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custody because he is subject to a Board detainer for a parole violation and

fails to satisfy bail on the new charges, credit for that time should be applied

to the defendant’s new sentence, and not to his original sentence. Gibbs,

181 A.3d at 1168.

      Here, the trial court’s sentencing order properly indicated that Appellant

should receive credit for time served. Although Appellant was subject to a

Board detainer when he was in custody on the present matters, he was not

able to satisfy bail on the underlying charges. Accordingly, the 355 days of

time credit should be applied to Appellant’s new sentence, and not to his

backtime. See Gibbs, 181 A.3d at 1168; see also Mann, 957 A.2d at 748.

Contrary to Appellant’s claim, the trial court does not have the authority to

specifically allocate time credit towards a backtime sentence.         See id.

Therefore, plea counsel had no responsibility to place a meritless request on

the record during sentencing.    See Loner, 836 A.2d at 132.       Accordingly,

Appellant’s argument fails.

      In sum, having reviewed Appellant’s arguments in light of the record,

we find no basis to conclude that the PCRA court erred in denying relief.

      Order affirmed.




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J-A02041-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/18/2019




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