Judges Opinions, — July 16, 2012 9:58 — 0 Comments

Commonwealth vs. Newrick Baez

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                                         :

PENNSYLVANIA                                                     :

                                                                                    :           No. CP-38-CR-0001020-2008

            v.                                                                     :

                                                                                    :

NEWRICK BAEZ                                                     :

           

ORDER OF COURT

           AND NOW, to wit, this 9th day of December, 2011, upon careful consideration of Defendant’s applications for time credit of August 9, 2011, August 30, 2011, September 6, 2011, November 8, 2011 and November 18, 2011, which we consider to be in the nature of requests for relief under the Post Conviction Relief Act (“PCRA”), and the record of this case, we hereby note and direct as follows:

           1.  The Lebanon County Public Defenders Office is appointed to represent Defendant on his requests for post conviction collateral relief.

 

           2.  It is the intention of the Court to dismiss Defendant’s requests for PCRA relief without a hearing for the reasons set forth in the attached Opinion.  Pursuant to Pa.R.Crim.P. Rule 907(1), Defendant is afforded thirty (30) days to file either an Amended PCRA Petition or a Response to our proposed dismissal of the applications without a hearing sufficiently pleading:  (i) the bases upon which we have jurisdiction to entertain Defendant’s requests for credit for time served from May 1, 2008 to June 12, 2008 and from June 4, 2009 to July 2, 2009; and (ii) the factual and legal bases upon which Defendant is entitled to credit at this action number for time served from May 1, 2008 to June 12, 2008, from June 4, 2009 to July 2, 2009 and from January 11, 2011 to March 15, 2011.  Defendant shall serve a copy of his amended PCRA petition or response upon the undersigned jurist.

          

                                                                                               BY THE COURT:

 

                                                                                  

                                                                                               ______________________________, S.J.

                                                                                               Robert J. Eby

 

RJE/jw

pc:      District Attorney (Interoffice Mail)

           Public Defender (Interoffice Mail)

           Newrick Baez (Interoffice Mail at the LCCF)

 

               

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                                         :

PENNSYLVANIA                                                     :

                                                                                    :           No. CP-38-CR-0001020-2008

            v.                                                                     :

                                                                                    :

NEWRICK BAEZ                                                     :

 

OPINION BY EBY, S.J., DECEMBER 9, 2011:

 

Before the Court are five (5) separate requests filed by Defendant seeking credit for time served at this action number.  By way of background, Defendant was arrested on May 1, 2008 on charges of Criminal Trespass, Criminal Mischief and Harassment based upon the allegation that on that date he kicked open the door of a residence to locate his girlfriend, entered the residence without permission and threatened the occupants of that residence.  Defendant remained incarcerated on the within charges at the Lebanon County Correctional Facility (“LCCF”) from May 1, 2008 until June 12, 2008, when he was granted unsecured bail at his preliminary hearing.  the Criminal Information was filed on June 25, 2008.  On August 21, 2008, Defendant entered a guilty plea to the charges lodged against him.  On October 15, 2008, the Court sentenced Defendant consistent with his guilty plea to twenty-three (23) months of probation.

On May 18, 2009, a detainer was issued at this action number for alleged violations of Defendant’s probation.  On June 4, 2009, Defendant was released to the custody of White Deer Run New Perspectives.  The length of time Defendant spent at the White Deer Run program is not clear from the record.  However, Defendant avers in one of his applications for time credit that he remained at White Deer Run until July 2, 2009.  On September 23, 2009, the Court found Defendant to be in violation of his probation, vacated that sentence and re-sentenced Defendant to two (2) to twenty-three (23) months’ imprisonment.  The re-sentencing Order of September 23, 2009 did not give Defendant credit for time served.  Defendant did not file post sentence motions or a direct appeal.

On November 16, 2009, Defendant was paroled at this action number.  On May 12, 2010, a Petition to Determine Parole Violation was filed alleging that Defendant violated the terms of his parole by failing to report, failing to reside at an approved residence and by incurring new charges.[1]  A hearing on the parole violations was scheduled for May 26, 2010.  At that time, Defendant failed to appear and a bench warrant was issued.  It appears that Defendant either surrendered or was apprehended and incarcerated at the LCCF on July 27, 2010.  The parole violation hearing at this action number was scheduled for August 25, 2010, at which time the Court found Defendant to be in violation of the terms of his parole and re-committed Defendant to the LCCF until the expiration of his maximum sentence.  Defendant did not appeal the vacation of his parole status.  On November 16, 2010, Defendant was denied parole because the 2010 charges remained pending.

Defendant pled guilty to the charges at the 2010 action numbers.  Defendant was sentenced by President Judge Tylwalk on those convictions on December 22, 2010 to a total sentence of seven (7) months to two (2) years less one (1) day imprisonment.[2]  On all action numbers except CP-38-CR-0001461-2010, the sentences were directed to be computed from July 27, 2010, essentially affording Defendant credit on three action numbers for his incarceration from July 27, 2010 to December 22, 2010.  On action number CP-38-CR-0001461-2010, the ninety (90) day to one (1) year sentence was directed to be computed from September 9, 2010, which effectively afforded Defendant credit for time served on all four 2010 action numbers from September 9, 2010 to December 22, 2010.

On January 11, 2011, Defendant was granted parole at this action number and all of the 2010 action numbers except CP-38-CR-0001253-2010.  However, the Orders granting parole also indicated that Defendant would remain incarcerated in the LCCF under the sentence imposed on the Escape conviction at count I of action number CP-38-CR-0001253-2010.  On March 15, 2011, Defendant was paroled at action number CP-38-CR-0001253-2010.  On March 24, 2011, a detainer was issued at this action number and the 2010 action numbers as a result of an alleged parole violation.   On March 31, 2011, a release request was issued by the Lebanon County Adult Probation Department at this action number and the 2010 action numbers.  On May 10, 2011, a detainer was issued at this action number and the 2010 action numbers for a parole violation.  On May 17, 2011, a Petition to Determine Parole Violation was filed.  On June 8, 2011, Defendant was found to be in violation of his parole at the 2010 action numbers.  Defendant’s parole status was vacated and Defendant was recommitted to serve the balance of his maximum sentence, to be eligible for parole after two (2) months and to be computed from May 10, 2011.  On June 15, 2011, Defendant appeared before the Court at this action number.  At that time, the Court found that Defendant violated parole, vacated that status and directed Defendant’s recommitment at the LCCF until the expiration of his maximum sentence.  Defendant did not appeal that Order.

On August 9, 2011, Defendant lodged his first request for time credit with this Court in the form of a letter to the Clerk of Courts.  In that letter, Defendant indicated that he was entitled to credit at this action number for time served from May 1, 2008, the date when he was arrested on the within charges, to June 12, 2008, the date when he was released when his bail was decreased.  Defendant also asserted that on his parole violation of August 25, 2010 at this action number, he was “…sentenced to 4 months to run concurrently with the 7 to 23 months.  I served 8 months and was released March 15, 2011 (8 mo.= 231 days).”  Defendant requested that the Clerk of Court calculate the time he served and let him know if he was mistaken.  On August 9, 2011, the Clerk of Court corresponded with Defendant, suggesting that he should contact his parole agent and the records department at the LCCF with any concerns regarding credit for time served.

On August 16, 2011, President Judge Tylwalk wrote a letter to Defendant, which was made a part of the record at this action number, apparently in response to a Petition for Early Parole that was filed at the 2010 action numbers, therein explaining to Defendant that he was paroled on all 2010 action numbers and that he was not paroled on the within action number because he had been made ineligible for re-entry in the parole revocation Order of June 15, 2011.  What followed were four separately-filed requests for time credit at this action number.  On August 30, 2011, Defendant filed a Petition for Time Credit requesting that he receive two months’ credit for time he served after he was arrested on the within charges and credit for time served from January 11, 2011 to March 15, 2011 at this action number.  On September 6, 2011, Defendant filed another Petition for Time Credit that was identical to the Petition for Time Credit of August 30, 2011.  On November 8, 2011, Defendant again filed a Petition for Time Credit, this time requesting credit for 42 days he served on this action number from May 1, 2008 to June 12, 2008.  Defendant also for the first time requested credit for time he served in the White Deer Run program from June 4, 2009 to July 2, 2009.  Finally, Defendant again requested credit for time served from January 11, 2011 to March 15, 2011.  On November 17, 2011, Defendant filed a Petition for Writ of Habeas Corpus, again requesting credit for time served from May 1, 2008 to June 12, 2008 and January 11, 2011 to March 15, 2011.

Before addressing whether Defendant is entitled to the credit that he seeks, we first must determine whether we have jurisdiction over Defendant’s requests for time credit.  The Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., is the exclusive vehicle for obtaining post-conviction relief on an application that is filed outside of the time limitations for the presentation of a timely post sentence motion or direct appeal.  Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001), citing Commonwealth v. Bronshtein, 752 A.2d 868, 869-870 n.3 (Pa. 2000).  This is true regardless of the manner in which a filing is titled.  Kutnyak at 1261, citing Commonwealth v. Hutchins, 760 A.2d 50, 52 n.1 (Pa.Super. 2000).  However, a prayer for relief that does not fall within the remedies afforded by the PCRA should not be considered as an application for relief pursuant to the PCRA.  Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa.Super. 2001), citing Commonwealth v. Fahy, 737 A.2d 214, 224 (Pa. 1994).  If a defendant challenges a trial court’s failure to award credit for time served in a sentencing or dispositional order, the claim is a challenge to the legality of sentence, which is a cognizable claim under the PCRA.  Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004), citing Commonwealth v. Hollawell, 604 A.2d 723, 725 (Pa.Super. 1992).

Defendant first seeks 42 days’ credit for time served from May 1, 2008 to June 12, 2008.  At this action number, Defendant was sentenced to 23 months of probation on October 25, 2008.  On September 23, 2009, Defendant was found to be in violation of his probation, that sentence was vacated and Defendant was re-sentenced to 2 to 23 months’ less 1 day imprisonment.  The Court did not direct that Defendant receive credit for time served solely on this action number in the Order of September 23, 2009.  Defendant had thirty (30) days from the date of re-sentencing to file a direct appeal to the Pennsylvania Superior Court.  Pa.R.A.P. Rule 903(a).  Defendant failed to do so.  Defendant’s requests for time served from May 1, 2008 to June 12, 2008 were filed outside of the permissible time frame for a timely post sentence motion or direct appeal.  Since Defendant argues that the Court failed to award him credit for that period of time served in the re-sentencing Order of September 23, 2009, that claim implicates the legality of sentence and is cognizable under the PCRA.  Therefore, we consider Defendant’s requests for time credit from May 1, 2008 to June 12, 2008 to be in the nature of a request for relief pursuant to the PCRA.[3]

Any PCRA application must be filed within one (1) year of the date when a defendant’s judgment becomes final.  § 9545(b)(1).  A judgment becomes final at the conclusion of direct review or at the expiration of time for seeking direct review.  § 9545(b)(3).  When a new sentence is imposed following the vacation of a probationary sentence, the re-sentencing date must be employed when assessing finality pursuant to § 9545(b)(3) when a defendant challenges the legality of the re-sentence imposed.  Commonwealth v. Cappello, 823 A.2d 936, 940 (Pa.Super. 2003), citing Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa.Super. 2001).

Defendant had thirty (30) days from the date of his re-sentencing on September 23, 2009, or until October 23, 2009, to file a timely direct appeal to the Pennsylvania Superior Court.  Defendant failed to do so.  Accordingly, his judgment became final on October 23, 2009.  From that date, Defendant had one (1) year, or until October 25, 2010, to file a timely PCRA application requesting credit for time served from May 1, 2008 to June 12, 2008.  Defendant did not file a request for time credit until August 9, 2011, nearly one (1) year after the time for presentation of a timely PCRA application for credit during this time had expired.

There are statutory exceptions to the one (1) year time limitation that will confer jurisdiction upon the Court to consider an otherwise untimely PCRA petition.  Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa.Super. 2007), citing § 9545(b)(1)(i)-(iii).  A PCRA petition will be allowed to proceed despite its untimeliness if the defendant is able to plead and to prove that one (1) of the following exceptions is applicable:

(i) the failure to raise the claim previously was the result of interference by government officials with        the presentation of the claim in violation of the Constitutions or laws of Pennsylvania or the United    States;

 

(ii)  the facts upon which the claim is predicated were unknown to the defendant and could not have       been ascertained by the exercise of due diligence; or

 

(iii) the right asserted is a constitutional right that was recognized by the United States or the       Pennsylvania Supreme Courts after the time period provided in this section and has been held by that             Court to apply retroactively.

 

§ 9545(b)(1).  If a defendant invokes one (1) of the above-stated exceptions in a PCRA petition, the defendant must establish that the petition was filed within sixty (60) days of the date when the claim first could have been presented.  § 9545(b)(2).  It is the defendant’s burden to plead and to prove in the petition that an exception to the one (1) year timeliness requirement is applicable.  Blackwell at 500, citing Commonwealth v. Beasley, 741 A.2d 1258, 1261-1262 (Pa. 1999).

Defendant does not plead that any of the above-stated exceptions are applicable to his requests for credit from May 1, 2008 to June 12, 2008.  The timeliness requirements of the PCRA are jurisdictional in nature and are mandatory, and the Court may not disregard or alter them in order to reach the merits of a request for relief that is filed in an untimely manner.  Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000), citing Fahy at 222.  Accordingly, we have no jurisdiction to award Defendant credit for time served from May 1, 2008 to June 12, 2008 at this juncture in the proceedings.

The same jurisdictional deficiency exists with regard to Defendant’s request for credit for time served from June 4, 2009 to July 2, 2009.  Again, when Defendant was re-sentenced following his probation violation on September 23, 2009, the Court did not direct that Defendant receive credit for all time served on this action number alone.  Defendant did not file post sentence motions or a direct appeal, and his sentence became final on October 23, 2009.  From that date, Defendant had one (1) year, or until October 25, 2010, to file a timely PCRA petition seeking credit for any time served before his re-sentencing on September 23, 2009.  Defendant did not file his application seeking credit for time served from June 4, 2009 to July 2, 2009 until November 8, 2011, more than one (1) year after the time for filing a timely PCRA petition had expired.[4]  Again, we would have no jurisdiction to direct that Defendant receive credit for time served from June 4, 2009 to July 2, 2009 at this point in the proceedings.  Even if we had jurisdiction to consider this request, it is doubtful that we would consider any time Defendant spent in the White Deer Run program to be sufficiently custodial so as to entitle Defendant to credit for any of the time Defendant spent in the program.

Finally, Defendant seeks credit for time served from January 11, 2011 to March 15, 2011.  Post conviction collateral review is permitted following a determination that a defendant violated the terms of his or her parole as to issues implicating the validity of the parole revocation proceeding and the legality of the disposition.  Cappello at 940.  The parole violation hearing date must be employed when assessing finality pursuant to § 9545(b)(3) if a defendant challenges the validity of the parole revocation proceeding and the legality of the disposition.  Id.

Defendant argues that he was not given credit for time served from January 11, 2011 to March 15, 2011 upon the revocation of his parole.  On June 15, 2011, the Court found Defendant to be in violation of his parole status, vacated that status and directed Defendant’s re-incarceration to serve the balance of his maximum sentence.  Defendant did not file post sentence motions or a direct appeal from the Court’s Order of June 15, 2011.  Therefore, that parole revocation disposition became final on July 15, 2011, the expiration of time for seeking direct review of his parole revocation.  Defendant had one (1) year from that date, or until July 16, 2012, to file a timely PCRA petition challenging the legality of that disposition.  Defendant’s application seeking credit for time served from January 11, 2011 to March 15, 2011 was filed on August 9, 2011, within the permissible time frame for presentation of a timely PCRA application challenging the legality of the parole revocation disposition.  Therefore, we have jurisdiction to address the merits of Defendant’s claim for credit for time served from January 11, 2011 to March 15, 2011.

However, in reviewing the record of this case in conjunction with the records of Defendant’s cases at the 2010 action numbers, Defendant was not incarcerated on the within action number as of January 10, 2011.  Defendant was granted parole at this action number by Order dated January 11, 2011.  That Order indicated that while Defendant was paroled at this action number effective January 10, 2011, Defendant would remain incarcerated at the LCCF under the 7 to 23 months’ less 1 day sentence that was imposed on the Escape conviction at count I of CP-38-CR-0001253-2010 on December 22, 2010.  Since Defendant was paroled on this action number effective January 10, 2011, Defendant would not be entitled to credit for time served from January 11, 2011 to March 15, 2011 on this action number, as he was not incarcerated on this action number during that period of time.  Defendant is not entitled to the relief he seeks.

Pa.R.Crim.P. Rule 907(1) governs the disposition of meritless applications for post conviction collateral relief without a hearing.  Rule 907(1) provides:

“the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s).  If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.  The defendant may respond to the proposed dismissal within 20 days of the date of the notice.  The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.”

 

In this case, based upon our review of the record and Defendant’s requests for time credit, we are satisfied that Defendant is not entitled to relief under the PCRA and that there would be no purpose served by any further proceedings.  Accordingly, we intend to dismiss Defendant’s applications for relief without a hearing.  Defendant will be afforded thirty (30) days from the date of this Order to file an amended PCRA petition or a response to the proposed dismissal of the applications for relief without a hearing sufficiently pleading:  (1) the bases upon which we have jurisdiction to entertain the requests for time credit from May 1, 2008 to June 12, 2008 and from June 4, 2009 to July 2, 2009; and (2) the factual and legal bases upon which Defendant is entitled to credit for time served from May 1, 2008 to June 12, 2008, from June 4, 2009 to July 2, 2009 and from January 11, 2011 to March 15, 2011.  In the event that Defendant fails to file an amended PCRA petition or a response to the proposed dismissal as explained herein within thirty (30) days, we will deny Defendant relief and will dismiss Defendant’s requests for time credit without a hearing.

We will enter an appropriate Order.



[1] Defendant incurred charges filed to four action numbers:

1.  CP-38-CR-0001226-2010:  An incident occurred on July 13, 2010 resulting in the filing of a criminal complaint on July 16, 2010 charging Defendant with Harassment (M3) charges.  Bail was not set on those charges until July 27, 2010, when it appears that Defendant either turned himself in or was apprehended.  Bail on those charges was decreased to $3,000.00 on August 12, 2010.

2.  CP-38-CR-0001253-2010: Defendant was operating a vehicle that was stopped on March 17, 2010 for suspicion of Driving Under the Influence and apparently fled during that vehicle stop.  On March 29, 2010, a criminal complaint was filed charging Defendant with Driving Under Suspension and Escape.  Bail was not set on those charges until July 27, 2010, the date Defendant apparently surrendered or was apprehended.  Bail was decreased to $3,000.00 at that action number on August 12, 2010.

3.  CP-38-CR-0001219-2010:  An incident occurred on July 21, 2010 resulting in the lodging of a criminal complaint on July 26, 2010 in which Defendant was charged with Harassment (M3).  Bail was set on that charge on July 27, 2010 and reduced on August 12, 2010 to $3,000.00.

4.  CP-38-CR-0001461-2010:  On July 26, 2010, an incident occurred resulting in Resisting Arrest and False Report charges, which were filed by criminal complaint dated August 4, 2010.  Bail was set on those charges on September 9, 2010 in the amount of $500.00.

[2] The sentence imposed on the Escape conviction at count I of CP-38-CR-0001253-2010 was seven (7) to twenty-three (23) months’ less one (1) day imprisonment.  All other sentences imposed were directed to be served concurrently with the sentence imposed on the Escape conviction.

[3] Under Pa.R.Crim.P. Rule 904(C), when an unrepresented defendant is unable to afford or to procure counsel, the Court shall appoint counsel to represent him on his first PCRA petition.  The appointment of counsel for an indigent defendant on a first PCRA petition is mandatory, and counsel must be appointed regardless of any untimeliness of the petition or the lack of merit of the claims presented therein.  Commonwealth v. Evans, 866 A.2d 442, 445 (Pa.Super. 2005), citing Kutnyak at 1262.  Since Defendant’s requests for time credit constitute a first request for PCRA relief, we will appoint counsel to represent Defendant with regard to his applications for PCRA relief.  As we will explain below, we will be affording Defendant and his counsel time in which to file an amended PCRA petition or a response to our intended dismissal Defendant’s requests for time credit without a hearing.

[4] While Defendant filed his first request for time credit on August 9, 2011, Defendant did not request credit for time served in the White Deer Run program until his Petition for Time Credit of November 8, 2011.

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