Commonwealth v. Nobles, 1095 MDA 2017

198 A.3d 1101

COMMONWEALTH of Pennsylvania

v.Zamir L. NOBLES, Appellant

No. 1095 MDA 2017

Superior Court of Pennsylvania.

Argued May 8, 2018

Filed October 31, 2018

James J. Karl, Harrisburg, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.^*

OPINION BY NICHOLS, J.:

Appellant Zamir L. Nobles appeals from the judgment of sentence imposed after he entered a negotiated guilty plea to receiving stolen property, firearms not to be carried without a license, and possession of a firearm by a minor.¹ Appellant claims that the trial court erred in denying his request for credit for time spent at a juvenile detention facility under 42 Pa.C.S. § 9760(1). We remand for proceedings consistent with this opinion.

The Commonwealth summarized the following facts giving rise to Appellant's conviction at the guilty plea hearing:

On March 9 of 2017, [Appellant] was walking north in the 300 block of Evergreen Street in the City of Harrisburg. At this point in time, Officer [Nathan W.] Ishman of the Harrisburg City Police observed [Appellant] produce a handgun and fire one round into the ground. He then observed [Appellant] discard the handgun to the west side of the street. At that point in time, the officer was able to locate a black and silver, [.]380-caliber Hi-Point, semiautomatic handgun. The firearm was loaded with one round in the chamber and four rounds in the magazine.

N.T. Guilty Plea & Sentencing Hr'g, 5/22/17, at 4-5. Appellant was seventeen years old at the time of the incident.

The trial court summarized the procedural history leading to Appellant's plea as follows:

[Appellant] was taken into custody on March 9, 2017 and following a detention hearing remained securely detained at South Mountain Juvenile Detention Center (hereinafter "South Mountain").^[2] On March 15, 2017, a delinquency petition was filed alleging [Appellant] committed the delinquent acts of: (1) Receiving Stolen Property; (2) Firearms Not to be Carried Without a License; (3) Possession of Firearm Prohibited; (4) Possession of a Firearm by Minor; and (5) Tamper With or Fabricate Physical Evidence. At the transfer hearing on April 10, 2017, [Appellant] waived his charges to the adult criminal justice system pursuant to a negotiated plea agreement.^[3] He was represented by Corey Korinda, Esquire. [That same day Appellant was transferred from South Mountain to the Dauphin County Prison.]

On May 22, 2017, [Appellant] entered a negotiated plea agreement wherein he ple[ ]d guilty to Count One (receiving stolen property), Count Two (firearms not to be carried [with]out a license), and Count Four (possession of firearm by a minor). The remaining charges were withdrawn by the Commonwealth.

Trial Ct. Op., 9/5/17, at 1-2 (footnotes omitted). The plea agreement called for an aggregate sentence of fifteen to thirty months' imprisonment. N.T. Guilty Plea & Sentencing Hr'g at 5.

Of relevance to this appeal, Appellant requested credit for time spent at South Mountain from March 9 to April 10, 2017. Id. at 7. Appellant's counsel noted that at South Mountain, Appellant's room was locked, the doors to the facility were locked, and the facility was surrounded by a fence. Id. at 8. Appellant's counsel further asserted that the structure of the program was "designed strictly for detention leading up to [an] adjudication or transfer hearing" and not for treatment. Id. at 9. According to Appellant's counsel, juveniles at the facility did not have a right to talk and socialize in the morning, but were required to earn this privilege, which would then be extended "in the evening hours for dinner." Id. Appellant's counsel argued that Appellant's time at South Mountain constituted "a custodial detention" for the purposes of credit for time served. Id.

The Commonwealth objected to Appellant's request for credit for time spent at South Mountain. The Commonwealth averred that it "only had considered the time that [Appellant] was spending at Dauphin County Prison when this plea was negotiated" and requested that the "negotiation be honored in this case." Id. at 10. Additionally, the Commonwealth suggested that the award of credit for time spent at South Mountain was discretionary with the trial court. Id. at 13.

Appellant responded that the terms of the plea agreement did not preclude him from seeking credit and that he informed the Commonwealth of his time credit request for time spent at South Mountain. Id. at 10. The Commonwealth agreed that the agreement did not preclude Appellant's request for credit, but noted that Appellant did not indicate his intent to seek credit until after the parties negotiated the fifteen-to-thirty month sentence. Id.

The trial court concluded that Appellant was not entitled to credit for the time spent at South Mountain and sentenced Appellant to the negotiated aggregate term of fifteen to thirty months' imprisonment, with credit for time served in Dauphin County prison from April 10 to May 22, 2017. The trial court recommended that Appellant be confined to the State Correctional Institution at Pine Grove, which focuses on juvenile offenders.

Appellant timely filed a post-sentence motion, which the trial court denied on June 30, 2017. Appellant timely appealed and submitted a court-ordered Pa.R.A.P. 1925(b) statement, in which he asserted that he was entitled to credit for the time he spent at South Mountain.

The trial court, in its Pa.R.A.P. 1925(a) opinion, offered two reasons for denying Appellant's request for credit for time spent at South Mountain. First, the court construed Appellant's claim as a challenge to the discretionary aspects of the sentence. See Trial Ct. Op. at 2. The court opined that Appellant's negotiated sentence appropriately considered Appellant's rehabilitative needs. Id. at 6. The court emphasized that it "would not have accepted the negotiated plea agreement" if it "believed that it was required to give credit for detention time." Id. at 7.

Second, the trial court suggested that it retained the discretion to deny credit for time spent at South Mountain under Section 9760. Id. at 6 (citing Commonwealth v. Kyle , 582 Pa. 624, 874 A.2d 12 (2005) ; Commonwealth v. Toland , 995 A.2d 1242 (Pa. Super. 2010) ; Commonwealth v. Fowler , 930 A.2d 586 (Pa. Super. 2007) ; and Commonwealth v. Conahan , 527 Pa. 199, 589 A.2d 1107 (1991) ). Further, the court concluded that Appellant was not entitled to credit for time spent at South Mountain because "the charges were originally brought under the Juvenile Act and were subject to the provisions of the Juvenile Act until Appellant waived his charges to the adult criminal system." Id. at 5. Consequently, the court determined "when a juvenile is in detention, it is not pursuant to ‘criminal charges,’ but rather a juvenile petition alleging delinquent conduct."Id.

Appellant presents the following question for review:

Is not [Appellant] entitled as a matter of right to the award of sentencing credit under 42 Pa.C.S. § 9760(1) for time spent at custody in a secure juvenile detention facility after his arrest and prior to his transfer to adult court pursuant to 42 Pa.C.S. § 6355 ?

Appellant's Brief at 5. Appellant presents two arguments in support of his claim. We address each argument in turn.

First, Appellant argues that the trial court mischaracterized his request for credit as a challenge to the discretionary aspects of the sentence. Id. at 14. Appellant asserts that the plea agreement did not waive his right to seek credit for time served and argues the trial court erred by referencing his negotiated sentence. Id. at 31.

The Commonwealth does not directly respond to Appellant's argument that his challenge should not be regarded as a challenge to the discretionary aspects of the sentence. However, the Commonwealth reiterates that it opposed Appellant's request for credit for time spent at South Mountain because during plea negotiations, it only considered Appellant's eligibility for credit for time served in county prison. Commonwealth's Brief at 6. The Commonwealth further notes:

Due to [Appellant's] negotiated plea agreement, [Appellant] was only sentenced to a term of 15 to 30 months of incarceration and a fine of only 550 dollars. The sentence is below the mitigated range of 18 months and it is far below the maximum penalty of 22 years of incarceration. The sentence is appropriate under Pennsylvania's sentencing code.

Id.

At the outset, we conclude that the trial court's analysis of Appellant's claim for sentencing credit as a challenge to the discretionary aspects of the sentence is misplaced. Instead, it is well settled that "[a] challenge to the trial court's failure to award credit for time spent at custody prior to sentencing involves the legality of sentence[.]"⁴ Commonwealth v. Fowler , 930 A.2d 586, 595 (Pa. Super. 2007) (citation and quotation marks omitted).

We note, however, that a defendant may waive his statutory right to sentencing credit. See Commonwealth v. Byrne , 833 A.2d 729, 734 (Pa. Super. 2003). In Byrne , the defendant acknowledged in his plea agreement that he would only receive credit for time served for a period of one year and that he was waiving all other time served in prison against a negotiated sentence of ten to twenty years' imprisonment.⁵ Id. at 731. The defendant did not take a direct appeal, but filed a Post Conviction Relief Act⁶ (PCRA) petition asserting that he was entitled to all time he served in prison under 42 Pa.C.S. § 9760(2).

The Byrne Court affirmed the PCRA court's dismissal of the claim. Of relevance to this appeal, this Court recognized that the defendant had a statutory right to credit for time served in prison and that his claim went to the legality of his sentence. See id. at 734-35. Nevertheless, this Court concluded that the defendant expressly acquiesced and agreed to the one year's credit and thus waived credit for the remainder of the time spent in pretrial...