J-S53041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

LAKEISHA S. LEONARD

 Appellant No. 2102 MDA 2015

Appeal from the Judgment of Sentence March 13, 2015

in the Court of Common Pleas of Dauphin County Criminal Division

at No(s):CP-22-CR-0002286-2013

 CP-22-CR-0004461-2011

 CP-22-CR-0004605-2014

 CP-22-CR-0004843-2011

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 04, 2017

Appellant, Lakeisha Leonard, appeals nunc pro tunc from the judgment 

of sentence entered in the Dauphin County Court of Common Pleas following 

the revocation of her probation. We vacate Appellant’s judgment of 

sentence and remand for resentencing. 

Appellant was charged with three counts of bad checks in 4461 CR 

2011, one count of bad checks in 4843 CR 2011, forgery, identity theft, and 

theft by deception (false pretenses) and theft by unlawful taking in 2286 CR 

2013. She pleaded guilty and was sentenced on October 8, 2013, to five 

years’ intermediate punishment (“IP”), with house arrest and electronic 

monitoring for the first four months, and probationary terms.

 

*

Former Justice specially assigned to the Superior Court.
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Appellant was subsequently arrested on August 6, 2014, and charged 

with forgery and criminal conspiracy (theft by deception) in 4605 CR 2014. 

On August 7, 2014, the Dauphin County Adult Probation Department filed a 

notice of violations in 2286 CR 2013, 4461 CR 2011, and 4843 CR 2011, and 

cited the new charges in 4605 CR 2015. On January 12, 2015, Appellant 

pleaded guilty to the new charges in 4605 CR 2014, and was sentenced for 

criminal conspiracy to time served from August 7, 2014 to January 12, 2015.

On March 13, 2015,1the trial court revoked Appellant’s IP and 

probationary sentences in 2286 CR 2013, 4461 CR 2011, and 4843 CR 2011 

and sentenced her to one to five years’ imprisonment followed by three 

years’ probation. The court did not discuss whether Appellant qualified for a 

Recidivism Risk Reduction Initiative (“RRRI”) sentence. Appellant requested 

that her trial counsel file a post-sentence motion to modify her sentence. 

Trial counsel, however, did not file a post-sentence motion or a notice of 

appeal. 

On August 25, 2015, the court docketed Appellant’s pro se PCRA 

petition, which alleged ineffective assistance of counsel for failing to file a 

post-sentence motion. The PCRA court appointed counsel who filed a PCRA 

 

1 The sentencing order and transcript are dated February 13, 2015. The 

docket and record, however, reflect an order to transport Appellant for a 

revocation hearing scheduled for March 13, 2015, and several sentencing 

forms dated March 13, 2015. Finally, the trial court indicated the revocation 

hearing occurred on March 13, 2015. Trial Ct. Op. at 2. Accordingly, we 

presume the revocation and sentencing proceeding occurred in March. 
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petition alleging ineffective assistance of counsel on October 13, 2015. The 

counseled petition claimed that Appellant requested trial counsel to ask the 

court to modify the sentence to account for credit for time served and a 

request for a RRRI sentence. PCRA Pet., 10/13/15, at 6 (unpaginated). The 

counseled petition did not allege an excessive sentence. The petition 

requested an evidentiary hearing, an order permitting Appellant to appear at 

the hearing, and such relief as the court deemed appropriate. Id. at 7. The 

petition did not explicitly request that the court reinstate her direct appeal 

rights or grant permission to file a post-sentence motion nunc pro tunc. 

The Commonwealth filed a response, which agreed that Appellant’s 

trial counsel was ineffective by failing to file a post-sentence motion. 

Commonwealth’s Response to Petitioner’s Mot. for Post-Conviction Relief, 

11/12/15, at 2 (unpaginated). The Commonwealth indicated it did not 

object to a reinstatement of Appellant’s direct appellate rights. Id.

On November 17, 2015, the PCRA court reinstated Appellant’s direct 

appeal rights. PCRA Ct. Order, 11/17/15. The order did not mention 

whether Appellant could file a post-sentence motion nunc pro tunc. 

Appellant timely filed a direct appeal and timely filed a court-ordered 

Pa.R.A.P. 1925(b) statement.

On appeal, Appellant raises two issues for review:

1. Whether trial counsel was ineffective for failing to file a 

modification of sentence or appeal on . . . Appellant’s 

behalf?
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2. Whether the trial court abused its discretion when 

sentencing . . . Appellant to an excessive and 

unreasonable sentence? 

Appellant’s Brief at 5. 

Appellant, the Commonwealth, and the PCRA court agree that 

Appellant’s plea counsel was ineffective for failing to file a requested postsentence motion. See Appellant’s Brief at 9; Commonwealth’s Brief at 4; 

PCRA Ct. Op., 2/16/16, at 2. Appellant contends the court failed to consider 

whether she was eligible for a RRRI sentence, failed to grant her credit for 

time served, did not put its reasoning for her sentence on the record, and 

did not consider mitigating circumstance. Appellant’s Brief at 9-10. 

We first address Appellant’s contention that the trial court erred in 

failing to consider whether she was eligble for RRRI and entitled to credit for 

time served. 

This Court has held that an attack upon the power of a 

court to impose a given sentence is a challenge to the 

legality of a sentence. Commonwealth v. Lipinski, 841 

A.2d 537, 539 (Pa. Super. 2004); see also 

Commonwealth v. Hansley, 994 A.2d 1150 (Pa. Super. 

2010) (challenge to trial court’s imposition of RRRI 

sentence with mandatory minimum sentence constitutes 

challenge to trial court’s sentencing authority).

Commonwealth v. Robinson, 7 A.3d 868, 870 (Pa. Super. 2010). 

Further, a “challenge to the trial court’s failure to award credit for time 

served prior to sentencing involves the legality of a sentence.” 

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

“Our standard of review over such questions is de novo and our scope of 
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review is plenary.” Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. 

Super. 2009) (citation omitted). Therefore, we consider the issues of 

Appellant’s RRRI eligibility and credit for time served. 

RRRI eligibility is set forth by 61 Pa.C.S. § 4503: 

“Eligible offender.” A defendant or inmate convicted of a 

criminal offense who will be committed to the custody of 

the department and who meets all of the following 

eligibility requirements:

(1) Does not demonstrate a history of present or past 

violent behavior.

(2) Has not been subject to a sentence the calculation of 

which includes an enhancement for the use of a deadly 

weapon as defined under law or the sentencing guidelines 

promulgated by the Pennsylvania Commission on 

Sentencing or the attorney for the Commonwealth has not 

demonstrated that the defendant has been found guilty of 

or was convicted of an offense involving a deadly weapon 

or offense under 18 Pa.C.S. Ch. 61 (relating to firearms 

and other dangerous articles) or the equivalent offense 

under the laws of the United States . . . .

(3) Has not been found guilty of or previously convicted of 

or adjudicated delinquent for or an attempt or conspiracy 

to commit a personal injury crime as defined under section 

103 of the act of November 24, 1998 (P. L. 882, No. 111), 

known as the Crime Victims Act, except for an offense 

under 18 Pa.C.S. § 2701 (relating to simple assault) when 

the offense is a misdemeanor of the third degree, or an 

equivalent offense under the laws of the United States or 

one of its territories or possessions, another state, the 

District of Columbia, the Commonwealth of Puerto Rico or 

a foreign nation.

(4) Has not been found guilty or previously convicted or 

adjudicated delinquent for violating any of the following 

provisions or an equivalent offense under the laws of the 

United States or one of its territories or possessions, 
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another state, the District of Columbia, the Commonwealth 

of Puerto Rico or a foreign nation:

18 Pa.C.S. § 4302(a) (relating to incest).

18 Pa.C.S. § 5901 (relating to open lewdness).

18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child 

pornography).

Received a criminal sentence pursuant to 42 Pa.C.S. § 

9712.1 (relating to sentences for certain drug offenses 

committed with firearms).

Any offense for which registration is required under 42 

Pa.C.S. Ch. 97 Subch. H (relating to registration of 

sexual offenders).

(5) Is not awaiting trial or sentencing for additional 

criminal charges, if a conviction or sentence on the 

additional charges would cause the defendant to become 

ineligible under this definition.

(6) Has not been found guilty or previously convicted of 

violating section 13(a)(14), (30) or (37) of the act of April 

14, 1972 (P.L. 233, No. 64), known as The Controlled 

Substance, Drug, Device and Cosmetic Act, where the 

sentence was imposed pursuant to 18 Pa.C.S. § 

7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii) 

(relating to drug trafficking sentencing and penalties).

61 Pa.C.S. § 4503(1)-(6) (footnotes omitted).

The court is required to ascertain whether the defendant is eligible for 

a RRRI sentence:

(b.1) Recidivism risk reduction incentive minimum 

sentence.—The court shall determine if the defendant is 

eligible for a recidivism risk reduction incentive minimum 

sentence under 61 Pa.C.S. Ch. 45 (relating to recidivism 

risk reduction incentive). If the defendant is eligible, the 

court shall impose a recidivism risk reduction incentive 

minimum sentence in addition to a minimum sentence and 
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maximum sentence except, if the defendant was 

previously sentenced to two or more recidivism risk 

reduction incentive minimum sentences, the court shall 

have the discretion to impose a sentence with no 

recidivism risk reduction incentive minimum.

42 Pa.C.S. § 9756(b.1). 

Accordingly, where the trial court fails to make a 

statutorily required determination regarding a defendant’s 

eligibility for an RRRI minimum sentence as required, the 

sentence is illegal. . . . [The defendant’s] issue presents a 

non-waivable challenge to the legality of [the] sentence.

Robinson, 7 A.3d at 871. In Robinson, the trial court denied the 

defendant’s request to determine her eligibility for a RRRI sentence. Id. at 

870. The court reasoned “that imposition of the negotiated sentence in this 

case precluded application of the RRRI.” Id. at 874. Because the trial 

court’s reasoning was flawed, the Robinson Court vacated the defendant’s 

judgment of sentence and remanded to have the court ascertain whether 

she was RRRI eligible. Id. at 875.

Instantly, the trial court conceded that at Appellant’s sentencing 

hearing, it failed to ascertain whether she was qualified for a RRRI sentence. 

See Trial Ct. Op. at 3 (“It does appear that Appellant qualifies as RRRI 

eligible, and we do acknowledge that should have been determined at 

sentencing.”). Accordingly, because Appellant’s sentence is illegal, see 

Robinson, 7 A.3d at 871, we vacate the judgment of sentence and remand 

for resentencing, including a determination of RRRI eligibility. See id. at 

875.
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Appellant also alleges that she is entitled to the following additional 

credit for time in custody: (1) October 8, 2013 to March 8, 2014; (2) March 

6, 2015 to March 17, 2015; and (3) November 2, 2015 to January 14, 2016. 

Appellant’s Brief at 17. We conclude that Appellant has not established a 

right to relief, but direct the trial court to consider whether Appellant is 

entitled to credit on remand. 

This Court has stated: 

The sentencing code provides:

§ 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 conduct on which such a charge is based. 

Credit shall include credit for the 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) . . . . “The principle underlying 

section 9760 is that a defendant should be given credit for 

time spent in custody prior to sentencing for a particular 

offense.” “If a defendant . . . remains incarcerated prior 

to trial because he has failed to satisfy bail requirements 

on the new criminal charges, then the time spent in 

custody shall be credited to his new sentence.” “Where an 

offender is incarcerated on both a Board [of Probation and 

Parole] detainer and new criminal charges, all time spent 

in confinement must be credited to either the new 

sentence or the original sentence.” The Department of 

Corrections, an executive agency, has no power to change 
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sentences, or to add or remove sentencing conditions, 

including credit for time served; this power is vested in the 

sentencing court. 

Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008) (some 

citations and emphases omitted). 

“Pennsylvania appellate courts consistently have interpreted section 

9760's reference to ‘custody’ as confinement in prison or another 

institution.” Commonwealth v. Martz, 42 A.3d 1142, 1145 (Pa. Super. 

2012) (citation omitted). “[T]ime spent subject to electronic monitoring at 

home is not time spent ‘in custody’ for purposes of credit toward a prison 

sentence.” Commonwealth v. Birney, 910 A.2d 739, 741 (Pa. Super. 

2006) (citation omitted). 

At the outset, we note that Appellant’s boilerplate assertions fail to 

establish that she was in custody based on the instant charges. In any 

event, the 151 days from October 8, 2013, to March 8, 2014, occurred after 

Appellant was sentenced to IP and probation, but before the instant 

revocation proceeding was commenced. Therefore, no record evidence 

suggests Appellant was in custody on the instant charges. See Mann, 957 

A.2d at 749; Birney, 910 A.2d at 741. 

Next, the five days between March 6 and March 11, 2015, occurred 

between the imposition of the January 12, 2015 time-served sentence in 

4605 CR 2014 and the instant March 13, 2015 revocation proceeding. A 

review of the record and the publicly available dockets reveals the following. 
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On January 20, 2015, Appellant was sentenced to nine months to twenty 

three months’ imprisonment in Cumberland County following the revocation 

of her probation in that County. Docket, CP-21-CR-0003144-2012, at 7. On 

February 4, 2015, the trial court issued a writ of habeas corpus directing the 

transportation of Appellant from Cumberland County Prison to Dauphin 

County for the March 13, 2015 revocation proceeding in Dauphin County.2 

See Order, 2/4/15. Accordingly, we discern no basis to conclude that 

Appellant was in custody from March 6 to March 11, 2015, due to the instant 

matter. See Mann, 957 A.2d at 749.

Lastly, the seventy-three days from November 2, 2015, to January 14, 

2016, accrued after the imposition of the instant sentence following 

revocation and during this appeal. To the extent that Appellant was in 

custody for these seventy-three days as a result of the sentence following 

revocation, Appellant would be entitled to credit for this time. See 42 

Pa.C.S. § 9760(1) (“Credit shall include credit for the time spent in custody . 

. . pending the resolution of an appeal.”).

Therefore, we vacate the March 13, 2015 sentence and remand for 

resentencing, including determinations of RRRI eligibility and whether 

Appellant is entitled to any additional credit for time in custody in the instant 

matter. 

 

2 Appellant was paroled in Cumberland County effective September 4, 2015. 

CP-21-CR-0003144-2012, at 8. 
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Appellant also challenges the discretionary aspects of her sentence. 

Although Appellant did not file a post-sentence motion nunc pro tunc, it 

appears that the PCRA court, when reinstating her direct appeal rights, 

considered her post-sentence claims. See Trial Ct. Op. at 2-3. Appellant 

set forth in her brief a concise statement of reasons relied on for allowance 

of appeal, asserting, inter alia, that the trial court “failed to put the 

reasoning for the state incarceration on the record . . . .” Appellant’s Brief 

at 12. 

We conclude Appellant has preserved a claim that the trial court failed 

to state its reasons for the sentence imposed and agree relief is due in light 

of this Court decision in Commonwealth v. Flowers, ___ A.3d ___, ___, 

2016 WL 6157509 at *7 (Pa. Super. Oct. 24, 2016). Thus, on remand, the 

trial court shall also “articulate reasons for the new sentence.” Id. 

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judge Shogan joins the memorandum.

Judge Bowes concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/4/2017