J-S79007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VENIECE QUEEN

Appellant No. 769 EDA 2016

Appeal from the Judgment of Sentence February 9, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001172-2002

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VENIECE QUEEN

Appellant No. 770 EDA 2016

Appeal from the Judgment of Sentence February 9, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001173-2002

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VENIECE QUEEN

Appellant No. 771 EDA 2016

Appeal from the Judgment of Sentence February 9, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001174-2002
J-S79007-16

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COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VENIECE QUEEN

Appellant No. 772 EDA 2016

Appeal from the Judgment of Sentence February 9, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001435-2002

BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 30, 2016

Appellant, Veniece Queen, appeals from the judgment of sentence 

entered in the Delaware County Court of Common Pleas, following 

revocation of her probation. We vacate the judgment of sentence and 

remand for resentencing. 

The relevant facts and procedural history of this case are as follows. 

On June 27, 2002 Appellant pled guilty at four separate dockets to three 

counts of forgery and one count of false statements (to obtain assistance 

and food stamps).1 On that same date, the court sentenced Appellant to 

concurrent terms of two (2) years’ probation for each offense. Appellant’s 

initial probation violation resulted in the issuance of a bench warrant on 

November 21, 2002. Appellant absconded and was detained approximately 

____________________________________________

1 18 Pa.C.S.A. § 4101(a)(1); 62 P.S. § 481(a). 
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six years later. The court revoked Appellant’s probation on March 28, 2008, 

and resentenced Appellant to concurrent terms of two (2) years’ probation 

for each offense. Following additional probation violations, the court 

revoked Appellant’s probation and re-imposed the same two-year 

probationary sentence on March 26, 2010, and July 17, 2015. In September 

2015, Appellant admitted to another technical violation of her probation. 

The court issued a bench warrant, and Appellant was detained on December 

9, 2015. On February 9, 2016, the court held a Gagnon II2 hearing, 

revoked Appellant’s probation at all dockets, and resentenced her to 

concurrent terms of six (6) to twenty-four (24) months’ incarceration for 

each offense. Appellant filed timely notices of appeal in each case on March 

9, 2016. The court ordered Appellant to file concise statements of errors 

complained of on appeal per Pa.R.A.P. 1925(b). In lieu of concise 

statements, Attorney Connors filed a Rule 1925(c)(4) statement of intent to 

file an Anders3 brief in each case. This Court subsequently consolidated all 

four cases on appeal. Attorney Foltz then entered his appearance and filed a 

merits brief. 

Appellant raises one issue for our review:

____________________________________________

2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 

(1973).

3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 

(1967).
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DID THE TRIAL COURT ERR IN SENTENCING [APPELLANT] 

TO SIX TO TWENTY FOUR MONTHS[’] INCARCERATION 

FROM THE DATE OF SENTENCING WITHOUT GIVING 

CREDIT FOR TIME SERVED FOR THE SIXTY DAYS 

INCARCERATED PRIOR TO THE SENTENCING HEARING 

FOR THE VIOLATION OF HER PROBATION?

(Appellant’s Brief at 5). 

Preliminarily, any issue not raised in a Rule 1925(b) statement is 

generally waived for appellate review. Commonwealth v. Castillo, 585 Pa. 

395, 888 A.2d 775 (2005). Here, revocation counsel filed Rule 1925(c)(4) 

statements of intent to file an Anders brief in response to the court’s Rule 

1925(b) order, so the court did not issue a Rule 1925(a) opinion addressing 

any potential issues for appeal. Despite the Rule 1925(c)(4) statements, 

when appellate counsel subsequently entered his appearance, he filed a 

merits brief. A merits brief, however, required a Rule 1925(b) statement to 

preserve issues for appeal. Ordinarily, counsel’s failure to file a Rule 

1925(b) statement would constitute per se ineffectiveness and could require 

this Court to remand to allow counsel to file a proper concise statement nunc 

pro tunc. See Pa.R.A.P. 1925(c)(3). Nevertheless, Appellant’s sole issue on 

appeal is a non-waivable challenge to the legality of her sentence, so 

remand is unnecessary. See Commonwealth v. Johnson, 967 A.2d 1001 

(Pa.Super. 2009) (stating trial court’s failure to award credit for time served 

implicates legality of sentence); Commonwealth v. Bowser, 783 A.2d 348 

(Pa.Super. 2001), appeal denied, 568 Pa. 733, 798 A.2d 1286 (2002) 

(stating challenge to legality of sentence cannot be waived). Therefore, we 
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will address the issue presented on appeal. 

Appellant argues she had been incarcerated for sixty days on a 

probation detainer prior to her new sentence for the current technical 

violation of probation. Appellant asserts that sixty-day period of 

incarceration related only to the probation violation. Appellant contends the 

court failed to award her proper credit for time served on her probation 

detainer. Appellant concludes this Court should vacate the judgment of 

sentence and remand for resentencing. We agree. 

When reviewing the outcome of a revocation proceeding, this Court is 

limited to determining the validity of the proceeding, the legality of the 

judgment of sentence imposed, and the discretionary aspects of sentencing. 

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013) 

(en banc). Credit for time served is governed by the Sentencing Code in 

relevant part as follows:

§ 9760. Credit for time served

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 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(1). See also Gaito v. Pennsylvania Bd. of 
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Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980) (stating 

defendant is entitled to credit for time spent in custody on detainer lodged 

by Board of Probation and Parole). 

Instantly, following her most recent probation violation, Appellant 

spent sixty (60) days incarcerated on the probation detainer awaiting the 

revocation and resentencing hearing.4 The court revoked Appellant’s 

probation and imposed concurrent terms of six to twenty-four months’ 

incarceration for each offense at four separate dockets, on the 

recommendation of Appellant’s probation officer. Appellant was entitled to 

credit for time served on the probation detainer. See id.; 42 Pa.C.S.A. § 

9760(1). None of the sentencing orders, however, reflects that Appellant 

was awarded any credit for time served. 

At resentencing, the following exchange took place between the court, 

Appellant, defense counsel and the probation officer:

THE COURT: I’m finding you in violation of your 

probation on all these cases. And that’s revoked, I give 

you a new sentence of 6 to 24 months served in a State 

Correctional Institute, you got to submit—

[APPELLANT]: So, my time here doesn’t count?

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4 Appellant, the Commonwealth, and the trial court all agreed that Appellant 

spent sixty days in custody on her probation detainer. The Gagnon II

hearing report, however, states Appellant was detained on December 9, 

2015, which constitutes sixty-two (62) days, so the parties’ calculation of 

Appellant’s presentence period of incarceration may be short by those two 

days. 
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THE COURT: Yeah, yeah, yeah, you’re getting 

credit. Don’t you—wait a minute, no, you already got that 

against your probation, right?

PROBATION OFFICER: I was asking to run it back—

THE COURT: Pardon me?

PROBATION OFFICER: I was asking just to run the 

sentence back.

DEFENSE COUNSEL: Because she has 60 days.

[APPELLANT]: I’ve been here for 60 days.

THE COURT: Well, let me ask you a question, 

she doesn’t get credit for those 60 against the six months, 

or does she? No, I mean, was that factored into your 

decision? Yeah, your back—your back time is reduced by 

60 days in jail.[5]

[APPELLANT]: Okay.

THE COURT: But, they want you to serve six 

months upstate and that’s what we’re doing.

[APPELLANT]: Okay. So, if that’s possible, 

then my back time will be six months?

THE COURT: No, they want you to—six 

months upstate, excuse me, six months upstate, excuse 

me. Go ahead, agent.

[APPELLANT]: Yeah, but if I get 60 days, that’s 

6 to 22 months, correct?

THE COURT: No, no, no, no—no, no, no, no, 

the recommendation already takes the 60 days in and 

____________________________________________

5 The court later acknowledged that it misspoke when it referred to “back 

time,” as Appellant was resentenced for a probation violation as opposed to 

a parole violation. 
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gives you credit against your back time already. Now, 

you’ve got less back time than you had when you went in, 

am I right, agent?

[APPELLANT]: I had 24 months and I still have 

24 months.

THE COURT: Do we take it off the back?

PROBATION OFFICER: No, Your Honor—

[APPELLANT]: No.

PROBATION OFFICER: —if you’re willing to grant that 

time from the time she was incarcerated, then I would ask 

for 8 to 24 months, I was going to [inaudible].

THE COURT: You see that, if I give you that 

credit, he wants 8 to 24 months. So, I credit it against 

your back time.

[APPELLANT]: I have two in, and I still have to 

do six, correct?

THE COURT: Correct. Correct. He wants you 

to do six months in and I do, too. So, I’m giving you 6 to 

24 months, the credit does not apply against that 6 to 24 

months, it’s applied against the—does it take it off her 

back on the 24 months?

[APPELLANT]: No.

THE COURT: Is it 6 to 22 now?

PROBATION OFFICER: No, it’s 6 to 24.

THE COURT: 6 to 24. All right. Good 

enough. So, it’s a 6 to 24 months sentence served in 

SCI[.]

(N.T. Resentencing, 2/9/16, at 8-11). The court attempted on some level to 

account for Appellant’s presentence period of incarceration when imposing 
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the revocation sentence. The court’s sentencing decision, however, 

apparently was affected by a misunderstanding of how to apply credit for the 

time Appellant spent in custody on the detainer. Credit for Appellant’s 

presentence period of incarceration on the probation detainer must be 

applied to her revocation sentence as a whole, not just the minimum term. 

See 42 Pa.C.S.A. § 9760(1). In other words, if the court intended to impose 

a twenty-four month maximum term of incarceration, Appellant should 

spend no more than twenty-two months in prison from the date her 

sentence began to account for the time she already spent incarcerated. 

Without the proper notation on the sentencing orders, however, Appellant 

might not receive that credit and is exposed to a potential twenty-six 

months of incarceration. See Commonwealth v. Ellsworth, 97 A.3d 1255 

(Pa.Super. 2014) (stating Department of Corrections (“DOC”) is executive 

agency with no power to add or remove sentencing conditions, including 

credit for time served); Commonwealth v. Heredia, 97 A.3d 392 

(Pa.Super. 2014), appeal denied, 628 Pa. 637, 104 A.3d 524 (2014) (stating 

text of sentencing order is determinative of court’s sentencing intentions and 

sentence imposed). 

In light of the confusion at resentencing surrounding the court’s 

intended sentence and the proper application of credit for time served, we 

vacate the judgment of sentence and remand for resentencing. To avoid 

any ambiguity, the court shall impose the over-all sentence it deems 
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appropriate (without subtracting credit for time served from the minimum 

and maximum terms), and then indicate on the sentencing orders that 

Appellant is to receive credit for the exact number of days she spent in 

custody on the probation detainer (60 or 62) as well as the exact number of 

days she has served in custody pending resolution of her appeal.6 

Accordingly, we vacate the judgment of sentence and remand for 

resentencing. 

Judgment of sentence vacated; case remanded for resentencing. 

Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2016

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6 The sentencing orders will then trigger the DOC’s duty to credit Appellant’s 

sentence appropriately.