J-S29029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEWAYNE J. HOLLAND 

Appellant

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 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-51-CR-0105551-2005

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: Filed: 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. Appellant 

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 

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* Retired Senior Judge assigned to the Superior Court.
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court revoked Appellant’s probation and sentenced Appellant to two-and-ahalf to five years’ imprisonment. Id. at 3. Appellant did not appeal.

On July 10, 2018, 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 raised a claim that Appellant’s trial counsel “was 

ineffective for not 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 an 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 

VOP/sentencing hearing?
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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 failing 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 elapsed between his underlying conviction and 

the VOP/sentencing hearing, and only one of the fourteen continuances 

should be attributed 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 truthdetermining process 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 for his or her action or inaction; and 

(3) but for the errors and omissions of counsel, there is a 
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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 averments, 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 

hindsight 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. Moreover, 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-paragraph 

argument as follows:
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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. Challenges 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 be 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 id. 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 

conviction.” 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] 

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1 The sentencing hearing transcript for Appellant’s new convictions was 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.
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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, 591 (Pa. Super. 

2007). Section 9760 of the Sentencing 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 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.

* * *

(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 that 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), this

Court addressed the defendant’s claim “that the trial court erred by not 

crediting his sentence with the time that 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 Martin, our Supreme Court considered “whether and when 

credit for time served may be awarded by [the Pennsylvania 
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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 that 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 time 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 either 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 criminal 

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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”). 
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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 Sandusky, 203 A.3d at 1043-44.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/20
0051_Opinion

Circulated 10/30/2020 10:52 AM