Com. v. Hall, V. ( 2015 )

J-S04036-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VERNON HALL, :
:
Appellant : No. 392 MDA 2014
Appeal from the PCRA Order Entered January 28, 2014
in the Court of Common Pleas of Lackawanna County,
Criminal Division, at No(s): CP-35-CR-0000752-2012,
CP-35-CR-0001776-2011
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 10, 2015
Vernon Hall (Appellant) appeals pro se from the order entered on
January 28, 2014, which dismissed his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the
order and remand for further proceedings.
We glean the following from the certified record and the PCRA court’s
docket. At trial court docket number CP-35-0001976-2011, Appellant pled
guilty to criminal trespass. At trial court docket number CP-35-0000752-
2012, Appellant pled guilty to possession with the intent to deliver a
controlled substance. He was sentenced at both docket numbers on
September 25, 2012. Appellant timely filed a motion for reconsideration of
sentence, which the trial court denied on October 2, 2012. Appellant did not
pursue a direct appeal.
*Retired Senior Judge assigned to the Superior Court.
J-S04036-15
After numerous filings not relevant to the current issue, on March 20,
2014, while a PCRA appeal was pending, Appellant pro se filed a Pa.R.A.P.
1925(b) statement, wherein Appellant asserted he was not credited for time
he spent in custody from January 26, 2012 to September 25, 2012. In his
pro se brief to this Court, Appellant asks us to consider one question,
namely, “Did the trial court err when it dismissed Appellant’s Petition for
[231] days time credit spent in custody of the county prison, dates being
January 26, 2012 to September 25, 2012[?]” Our standard of review of the
denial of a PCRA petition is limited to examining whether the court’s rulings
are supported by the evidence of record and free of legal error.
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
In support of his issue, Appellant inartfully argues that the sentencing
court erred by failing to give him credit for time he served in prison from
January 26, 2012 to September 25, 2012. Because Appellant raised this
issue for the first time in his Pa.R.A.P. 1925(b) statement, the
Commonwealth contends that Appellant has waived his issue. We disagree
with the Commonwealth.
“A challenge to the trial court’s failure to award credit for time served
prior to sentencing involves the legality of a sentence.” Commonwealth v.
Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). Such a challenge is non-
waivable, even if it is raised for the first time in an appeal from an order that
disposed of a PCRA petition. See Commonwealth v. Seskey, 86 A.3d 237,
-2-
J-S04036-15
241 (Pa. Super. 2014) (“Thus, even though [Seskey’s] claims were not first
presented to the PCRA court in [his] PCRA petition or in his Rule 1925(b)
concise statement as challenges to the legality of the sentence, they cannot
be waived.”).
The PCRA court never addressed Appellant’s claim that he did not
receive the appropriate amount of credit for time served. Moreover, we are
unable to discern from the record whether Appellant’s claim has merit.
Consequently, we vacate the PCRA court’s order and remand the matter to
that court. On remand, the PCRA court shall review Appellant’s claim
regarding his credit for time served and thereafter shall enter an appropriate
order.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judge Allen joins the memorandum.
Judge Bowes files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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