J-S38020-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PETER CAMERO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3067 EDA 2018

Appeal from the Judgment of Sentence Entered September 19, 2018

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0005087-2017

BEFORE: OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 24, 2019

Appellant, Peter Camero, appeals from the Judgment of Sentence 

entered in the Delaware County Court of Common Pleas following the 

revocation of his parole and probation. With this appeal, Appellant’s counsel 

has filed an Application to Withdraw as Counsel and an Anders1 brief. After 

careful review, we deny counsel’s Application to Withdraw and remand for 

further proceedings pursuant to Pa.R.A.P. 1925(c)(4).

We glean the following factual and procedural history from the certified 

record. On October 18, 2017, Appellant pleaded guilty to one count each of 

Possession of Marijuana for Personal Use and Theft from a Motor Vehicle2for 

breaking into a vehicle and possessing a sandwich bag containing marijuana. 

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1 Anders v. California, 386 U.S. 738 (1967).

2 35 P.S. § 780-113(a)(31) and 18 Pa.C.S. § 3934(a), respectively.
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The court sentenced Appellant to a term of time-served to twelve months’ 

incarceration, followed by to one year of probation; the court then granted 

him immediate parole.

On August 17, 2018, after violating the terms of his parole and 

probation, Appellant was arrested and incarcerated pending a September 19, 

2018 Gagnon II3 hearing. At the Gagnon II hearing, Appellant conceded 

that he violated the terms of his parole and probation. Thus, the trial court 

(“VOP court”) revoked Appellant’s parole and incarcerated him to the balance 

of the sentence previously imposed, one hundred seventy-four days, and 

revoked his probation and incarcerated him to a consecutive sentence of one 

to two years’ imprisonment. The VOP court granted Appellant one hundred 

ninety-one days’ credit for time served. Importantly, this credit included his 

time served from August 17, 2018 to September 19, 2018. 

On September 26, 2018, Appellant filed a pro se Motion for 

Reconsideration of Sentence and pro se Notice of Appeal. On October 17, 

2018, Appellant filed a counseled Notice of Appeal. Both the VOP court and 

Appellant complied with Pa.R.A.P. 1925. 

Appellant’s counsel has filed both an Anders Brief and an Application to 

Withdraw as Counsel. In response, Appellant filed a Pro Se Response. The 

Anders Brief and Pro Se Response raise the same issue: “[w]hether the court 

erred when it sentenced Appellant to prison without crediting him for the time 

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3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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he had already served on the case.” Anders Br. at 3; Appellant’s Pro Se 

Response, filed 6/3/19. 

As a preliminary matter, we address appellate counsel’s Application to 

Withdraw as Counsel. “When presented with an Anders Brief, this Court may 

not review the merits of the underlying issues without first passing on the 

request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. 

Super. 2010) (citation omitted). In order for counsel to withdraw from an 

appeal pursuant to Anders, our Supreme Court has determined that counsel 

must meet 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Appellate counsel has complied with the mandated procedure for 

withdrawing as counsel. Additionally, appellate counsel confirms that he sent 

Appellant a copy of the Anders Brief and Application to Withdraw as Counsel, 

as well as a letter explaining to Appellant that he has the right to retain new 

counsel, proceed pro se, or to raise any additional issues he may deem worthy 
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of merit. See Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 

2005) (describing notice requirements). Accordingly, counsel has satisfied the 

technical requirements of Anders.

Because appellate counsel has satisfied the above requirements, we will 

address the substantive issue raised in the Anders Brief and Pro Se Response. 

Appellant contends that the trial court failed to credit him for the thirty-three 

days he was incarcerated awaiting his September 19, 2018 Gagnon II

hearing, i.e., from August 17, 2018 to September 19, 2018. Id.; Anders Br. 

at 4; Pro Se Response. We disagree.

A challenge to the trial court’s failure to award credit for time served 

prior to any type of sentencing is a challenge to the legality of a sentence. 

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). The 

question of whether a trial court imposed an illegal sentence is a question of 

law and, therefore, our review is de novo. Commonwealth v. Infante, 63 

A.3d 358, 363 (Pa. Super. 2013).

The Pennsylvania Sentencing Code provides that a trial court shall give 

a defendant credit for time spent incarcerated and states, in relevant part: 

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. § 9760(1). 
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Appellant contends that the court failed to give him credit for time 

served, from August 17, 2018 to September 19, 2018. Our review of the 

record, however, shows that the court granted Appellant one hundred ninetyone days’ credit for time served, including the thirty-three days served from 

August 17, 2018 to September 19, 2018. Certificate of Imposition of Judgment 

of Sentence, Docket No. CP-23-CR-0005087-2017, dated 10/18/17; N.T. 

Hearing, 9/19/18, at 14-15. Because Appellant received credit for the time he 

spent incarcerated from August 17, 2018, to September 19, 2018, this issue 

has no merit.

However, our independent review reveals that Appellant’s resentence 

may be illegal. Where, as in the instant case, the court revokes a defendant’s 

parole and probation, the court has the same sentencing options available that 

existed at the time of the original sentencing. Commonwealth v. Ware, 737 

A.2d 251, 254 (Pa. Super. 1999). Here, it appears that the terms of 

Appellant’s resentence exceed the statutory maximum sentence available at 

the time of the original sentencing. See 18 Pa.C.S. § 1104(2) (stating the 

maximum sentence for Theft of Motor Vehicle); 35 P.S. § 780-113(g) (stating 

maximum sentence for Possession of Marijuana for Personal use). Accordingly, 

this issue has arguable merit.

Because our independent review of this appeal reveals the existence of 

an issue of arguable merit, we deny counsel’s request to withdraw and we 

remand this case to the VOP court for counsel to address the legality of 

Appellant’s sentence in a supplemental Pa.R.A.P. 1925(b) Statement within 
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30 days. The VOP court shall file a supplemental Rule 1925(a) opinion within 

45 days from the filing of the supplemental Pa.R.A.P. 1925(b) Statement.

Case remanded. Application to Withdraw denied. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/19