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

v.

DEWAYNE J. HOLLAND

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2354 EDA 2019 Appeal from the PCRA Order Entered August 8, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- CR

- 0105551

- 2005 BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J. * MEMORANDUM BY NICHOLS, J.: Fi led: November 19, 2020 Appellant Dewayne J. Holland appeals from the order dismissing his first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546, petition. Appellant contends counsel was ineffective by not filing a motion to dismiss the charges because of an untimely probation/sentencing hearing. Appell ant also argues that his violation of probation (VOP) sentence was illegal because he was not given credit for time served. We affirm. We adopt the facts presented in the trial court ’ s opinion. PCRA Ct. Op. , 12/16/19, at 1

- 3. We reiterate that Appellant has been incarcerated since his arrest on the new criminal charges. On July 17, 2017, the VOP

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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court revoked Appellant ’ s probation and sentenced Appellant to two

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- a half to five years ’ imprisonment. Id. at 3. Appellant did not appeal. On July 10, 201 8, Appellant filed a timely , handwritten pro se PCRA petition raising, among other claims, that his VOP counsel was ineffective by “not getting [Appellant’s] detainer time credit to [incomprehensible] sentence imposed.” PCRA Pet., 7/10/18, at 4. The PCRA court appointed PCRA counsel for Appellant . On September 4, 2018, PCRA counsel filed an amended PCRA petition that incorporated the claims raised in Appellant ’ s pro

se petition and also rais ed a claim that Appellant ’ s trial counsel “was ineffective for n ot objecting to the VOP hearing because [Appellant] was denied his right to a prompt VOP hearing . . . .” Am. PCRA Pet., 9/4/18, at
2. On July 9, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice, which stated that Appellant ’ s issues lacked merit. Appellant did not file a response. On August 8, 2019, the PCRA court dismissed Appellant ’ s PCRA petition. Order, 8/8/19. On August 13, 2019, Appellant timely appealed. The PCRA court did not order Appellant to comply with Pa.R.A.P. 1925(b), but filed a n opinion on December 16, 2019. Appellant raises the following two issues: 1. Was defense counsel at [Appellant ’ s] VOP/sentencing hearing ineffective for failing to file and litigate a motion to dismiss the charges because [A]ppellant was denied a prompt V OP/sentencing hearing?J

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2. Was the sentence imposed by the trial court illegal because [A]ppellant was not given credit for time served [?] Appellant ’ s Brief at 2. In support of his first issue, Appellant argues that his trial counsel was ineffective by fa iling to file a motion to dismiss the charges because of a failure to hold a prompt VOP/sentencing hearing. Id. at 8. Appellant reasons that fifteen months e lapsed between his underlying conviction and the VOP/sentencing hearing , and only one of the four teen continuances should be attribut ed to him

. Id. Appellant summarily argues that he “met the three prong test [for ineffectiveness] because his claim has arguable merit, counsel had no reasonable basis for not [filing] the speedy/prompt hearing motion, and [he] was prejudiced by counsel ’ s failure.” Id. at 9. The standard of review is well

- settled: Initially, we note that 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. 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. Furthermore, to establish a claim of ineffective assistance of counsel, a defendant 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 pro cess that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis f or his or her action or inaction; and (3) but for the errors and omissions of counsel, there is aJ

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reasonable probability that the outcome of the proceedings would have been different. We have explained that a claim has arguable merit where the factual ave rments, if accurate, could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination. The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel ’ s decisions will be considered reasonable if they effectuated his client ’ s interests. We do not employ a hin dsight analysis in comparing trial counsel ’ s actions with other efforts he may have taken. Prejudice is established if there is a reasonable probability that, but for counsel ’ s errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner ’ s burden to prove that counsel was ineffective. Moreov er, a failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness. Commonwealth v. Sandusky , 203 A.3d 1033, 1043

- 44 (Pa. Super. 2019) (citations omitted and formatting altered) , appeal denied , 216 A.3d 1029 ( Pa. 2019)

. After careful review of the parties’ briefs, the record, and the PCRA court’s opinion, we affirm the PCRA court on its disposition of Appellant’s first issue. See PCRA Ct. Op. at 4

- 9. In support of his second issue, we quote Appellant’s one

- pa ragraph argument as follows:J

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The trial court did not give [Appellant] credit for time served. Credit for time served in sentencing [Appellant] is mandatory. Failure to give credit for time served makes the sentence imposed in this case illegal. Challeng es to the legality of sentence cannot be waived. This Court has jurisdiction to address this issue since [Appellant] timely filed his PCRA petition and this Court has jurisdiction to address the legality of the sentence. The judgment of sentence should b e vacated in this case. Id. at 10

- 11 (citations omitted). Appellant appears to be arguing that he should be given credit for time served from either November 17, 2014, the date of Appellant’s arrest and incarceration on the new criminal charges, or April 26, 2016, the date that Appellant was convicted on the new charges

. See i d. at 3, 7; Commonwealth’s Brief at 13. In response to Appellant’s second issue, the Commonwealth counters that Appellant “ was credited for that time on his sentence for the new

con viction.” Commonwealth’s Brief at 13 (citing N.T. Sentencing Hr’g, 11/18/16, at 8). 1 The Commonwealth reasons that “[b]ecause [Appellant’s] time served was credited to the sentence for the new conviction[, Appellant]

_________________ __________ ______ ____ _______ 1 The sentencing hearing transcript for Appellant’s new conviction s w as not transmitted to this Court as part of the certified record, but Appellant does not dispute the accuracy of the Commonwealth’s citation. See also Commonwealth v. Holland , 2018 WL 3121765 (Pa. Super. filed June 26, 2018) (unpublished mem.) (resolving Appellant’s direct appeal for the new conviction). Appellant’s appellate brief for the aforementioned direct appeal states that the trial court gave Appellant credit for time served for the new criminal charges

. See Appellant’s Brief, 2017 WL 9286443, at *7.J

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would have received an impermissible double benefit if it had also been credited to [Appellant’s] VOP sentence.” Id. A petitioner can challenge the legality of the sentence in a timely PCRA petition. Commonwealth v. Fowler , 930 A.2d 586, 59 1 (Pa. Super. 2007). Section 9760 of the Sentenci ng Code provides 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 w hich 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.
* * * (4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge th at has not been credited against another sentence. 42 Pa.C.S. § 9760(1), (4).
In Commonwealth v. Smith , 853 A.2d 1020 (Pa. Super. 2004), th is
Court addressed the defendant’s claim “that the trial court erred by not crediting his sentence with the time tha t he was incarcerated under a probation detainer lodged as a result of his criminal activity.” Smith , 853 A.2d at 1022. In resolving the issue, the Smith Court summarized Martin v. Pa. Bd. of Probation & Parole , 840 A.2d 299 (Pa. 2003), as follows:
In Ma rtin , our Supreme Court considered “whether and when credit for time served may be awarded by [the PennsylvaniaJ

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Board of Probation and Parole] against a prior sentence on the basis of pretrial detention related to a subsequent offense.” The Court held tha t incarceration attributable to both a parole detainer and new criminal charges must be attributable to either the new sentence or the original sentence. In the present case, we are required to determine whether [the defendant] may be awarded credit for t ime served against his sentence based on pretrial detention related to a prior offense. We hold that, because [the defendant’s] pretrial incarceration is attributable to both his probation detainer and the new criminal charges, it must be attributed to ei ther his sentence under the new criminal charges or to a sentence imposed for violation of probation. Because [the defendant’s] pre - trial incarceration was not already credited to any violation of his probation, it was error for the trial court to refuse to give credit to [the defendant] on his June 17, 2002 sentence. Smith , 853 A.2d at 1026 (citation omitted). Instantly, unlike the defendant in Smith , Appellant apparently received credit for time served for his pre

- trial incarceration attributable to his new criminal charges. 2 Cf. Smith , 853 A.2d at 1026 ; cf. also Holland , 2018 WL 3121765, at *1; Appellant’s Brief at 3 (arguing he should be given credit for time served from November 17, 2014, the date of his arrest and incarceration for the new criminal charges ), 7 (asserting entitlement to credit for time served from April 26, 2016, the date of his conviction for the

new criminal charges ). Because it appears Appellant was already given credit for time served for his pre

- trial incarceration on his new cr iminal

_________________ __________ ______ ____ _______ 2 See Appellant’s Brief, 2017 WL 9286443, at *7 (stating, in Appellant’s appellate brief for his new criminal charges, that the trial court gave him “credit for time served”).J

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charges, he is not entitled to receive credit for time served for his “sentence imposed for violation of probation.” See Smith , 853 A.2d at 1026

. For these reasons, Appellant is not entitled to relief and we affirm the PCRA court’s order. See San dusky , 203 A.3d at 1043

- 44. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/19/200051_Opinion Circulated 10/30/2020 10:52 AM