Com. v. Robertson, K.
Com. v. Robertson, K. No. 1595 MDA 2016
| Pa. Super. Ct. | Jul 18, 2017Background
- Kashif M. Robertson was convicted at a September 2013 jury trial of PWID, possession of drug paraphernalia, and possession of a controlled substance; originally sentenced to 3–10 years plus probation and fines.
- Multiple counsel changes and pro se filings followed; this Court affirmed the conviction on direct appeal and the Pennsylvania Supreme Court denied allowance of appeal.
- Robertson filed a PCRA petition; at the April 26, 2016 PCRA evidentiary hearing the court found the original sentence illegal, dismissed other PCRA claims, and resentenced Robertson to 2–4 years plus probation.
- After resentencing Robertson filed post-sentence motions seeking additional jail-credit and alleging ineffective assistance of counsel; the PCRA/trial court granted additional credit (credit from April 7, 2012 to Sept. 20, 2015) but denied the ineffectiveness claims.
- Robertson appealed the August 15 (time-credit) and August 18 (ineffectiveness denial) orders; this Court affirmed the judgment of sentence.
Issues
| Issue | Robertson's Argument | Commonwealth/Trial Court Argument | Held |
|---|---|---|---|
| Credit for time on parole between Sept. 20, 2015 and Mar. 17, 2016 | Robertson argued he was entitled to jail-credit for time spent on parole under 61 Pa.C.S. § 6138 provisions | Credit under 42 Pa.C.S. § 9760 is for time "in custody;" parole is release and not custody | Denied as to that period: parole is not "in custody," so no statutory credit; court affirmed grant only for earlier period already awarded |
| Ineffective assistance claims raised in post-sentence motion (cross-examining witnesses/contradictory testimony) | Robertson contended trial/appellate counsel were ineffective for failing to challenge witness contradictions and the CI reliability; sought relief post-sentence | Holmes requires ineffective-assistance claims be raised in PCRA, not in post-verdict/post-sentence motions, absent narrow exceptions | Denied as premature; claims are deferred to PCRA review (denied without prejudice) |
| Claim that PCRA counsel failed to subpoena an attorney (Gary Kelley) to prove three-prong ineffective assistance at PCRA hearing | Robertson argued PCRA counsel’s failure deprived him of the ability to meet ineffective-assistance standards | Trial court found no meritorious, apparent claim and no waiver invoking PCRA exceptions | Denied; issue not appropriate for post-sentence relief and may be raised in a proper collateral PCRA petition |
| Claim based on Pa.R.Crim.P. 581(j) / In re L.J. to reopen suppression record | Robertson argued trial counsel should have used Rule 581(j)/In re L.J. to reopen suppression with newly available evidence | Trial court treated these as ineffectiveness/PCRA matters and found them previously litigated or waived | Denied as premature and/or previously litigated; can be pursued (if at all) in collateral PCRA proceedings |
Key Cases Cited
- Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (ineffective-assistance claims must generally be raised on collateral review under the PCRA; trial courts should not decide them on post-verdict motions except in narrow circumstances)
- Commonwealth v. Martz, 42 A.3d 1142 (Pa. Super. 2012) (Section 9760 credit limited to time spent "in custody")
- Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005) (time on release/home monitoring is not "in custody" under Section 9760)
- Commonwealth v. Johnson, 967 A.2d 1001 (Pa. Super. 2009) (challenge to failure to award pre-sentence credit implicates legality of sentence; review de novo)
- Commonwealth v. Brougher, 978 A.2d 373 (Pa. Super. 2009) (standards for appellate review of sentence legality)
- Commonwealth v. Maxwell, 932 A.2d 941 (Pa. Super. 2007) (interpretation of "custody" for credit purposes)
- In re L.J., 79 A.3d 1073 (Pa. 2013) (procedural rules and standards for reopening suppression records)