Com. v. Colon, A. ( 2023 )

J-A19044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL R. COLON :
:
Appellant : No. 3167 EDA 2022
Appeal from the Order Entered November 9, 2022
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002033-2004,
CP-15-CR-0004401-2004
BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 16, 2023
Angel R. Colon (Colon) appeals an order of the Court of Common Pleas
of Chester County (trial court) which clarified an ambiguity as to whether he
received credit for time served at his sentencing. We affirm.
In Colon’s related appeals concerning his sentence (2418 EDA 2021 and
2419 EDA 2021), we summarized the procedural history of the underlying
matter as follows:
In 2005, Colon pleaded guilty to corrupt organizations at docket
number 2033-04 and three counts of delivery of a controlled
substance2 at docket number 4401-04. Colon later moved to
withdraw his guilty plea. The trial court denied the motion and
sentenced him to an aggregate of twenty to fifty years of
imprisonment. This Court affirmed Colon’s judgment of sentence
on direct appeal, and Colon did not petition for allowance of appeal
with our Supreme Court. The trial court reinstated Colon’s right
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* Retired Senior Judge assigned to the Superior Court.
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to petition our Supreme Court for allowance of appeal following
his first Post Conviction Relief Act (“PCRA”) petition, and our
Supreme Court denied the petition on November 6, 2008. Colon
filed several PCRA petitions between 2009 and 2015, all of which
the PCRA court dismissed. In 2018, Colon filed a motion for time
credit, which the court construed to be a PCRA petition and
dismissed without a hearing. This Court affirmed. See
Commonwealth v. Colon, 216 A.3d 409 (Pa. Super. Apr. 22,
2019) (unpublished memorandum).
On August 25, 2021, Colon filed a pro se “Petition for Clarification
and/or Correction of the Sentence in the Nature of ‘Credit for Time
Served’, [sic] Nunc Pro Tunc.” In his petition, Colon asked the
trial court to correct the sentencing judge’s “non-calculation of
credit time in custody.” Colon further alleged that his co-
defendant, also originally sentenced in 2005, had received credit
for time served following a similar petition in 2020. The trial court
treated Colon’s petition as an untimely PCRA petition and,
pursuant to Pennsylvania Rule of Criminal Procedure 907, issued
a notice of intent to dismiss the petition on September 23, 2021.
Colon filed a response to the court’s Rule 907 notice, in which he
maintained that, in his petition, he had “asked [the court] to
clarify whether his time in custody would be credited toward his
sentence[.]” The trial court nevertheless concluded Colon’s
petition was an untimely PCRA petition and dismissed it without a
hearing on October 27, 2021. The trial court declined to
acknowledge Colon’s assertion that he was seeking a clarification
of his sentence; nor did the court address Colon’s assertion that
his co-defendant had recently filed the same petition and received
relief. Colon filed timely notices of appeal, and both he and the
trial court complied with Pennsylvania Rule of Appellate Procedure
1925.
Commonwealth v. Colon, 2418 EDA 2021, 2419 EDA 2021, at *1 (Pa.
Super. October 13, 2022) (unpublished memorandum decision) (footnotes
and internal citations omitted).
We granted Colon relief in the above appeals, remanding the case to the
trial court to “resolve the ambiguity in Colon’s sentence, namely, to determine
whether Colon’s sentence includes credit for time served in custody prior to
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sentencing.” See id. at *4 (emphasis added).1 Significantly, Colon had
“conceded that should the court clarify that his sentence included no credit for
time served, he would be challenging the legality of his sentence.” Id. at *3
n.4.
Following remand, the trial court conducted proceedings consistent with
our directive to clarify any ambiguity in Colon’s sentence. In its order of
November 9, 2022, the trial court stated that it had “reviewed the transcript
of [Colon’s] sentencing and the applicable sentencing sheets, and the court
has found no indication that [Colon’s] sentence includes credit for time served
in custody prior to sentencing.” Trial Court Order, 11/9/2022, at 1.
Despite that this clarification was the sole purpose of the remand of the
case to the trial court, Colon again appealed. In his brief, Colon claims that
the trial court erred because it “failed to acknowledge [or] address the
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1 “If . . . the alleged error is thought to be attributable toambiguity in the
sentence imposed by the trial court, then a writ of habeas corpus ad
subjiciendum lies to the trial court for clarification and/or correction of the
sentence imposed.” Commonwealth v. Perry, 563 A.2d 511, 513 (Pa.
1989); see also Commonwealth v. Heredia, 97 A.3d 392, 394-95 (Pa.
Super. 2014). A request for clarification of a sentence is not subject to the
requirements of the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546
(PCRA). See Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super.
2007).
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ambiguity as to why [Colon’s] co-defendant who had filed a similar petition in
2020 [was granted relief].” Appellant’s Brief, at 10.2
Here, Colon has failed to establish that the trial court abused its
discretion.3 This case was remanded to the trial court for the sole purpose of
clarifying whether Colon was entitled to credit for time served. The trial court
did as we instructed, stating in its order that it had reviewed the relevant 2005
orders and transcripts and concluded that Colon had not been awarded such
credit.
Colon suggests that he should have been or was awarded credit for time
served because his co-defendant received such credit. However, that fact
alone is irrelevant. Their respective sentencing calculations hinged on several
factors, such as whether bail was posted and whether the person was in
custody while on a Board of Probation and Parole detainer. More succinctly,
an award of credit time to Colon’s co-defendant and the lack of credit time
awarded to Colon does not alone make Colon’s sentence ambiguous.
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2 We note that Colon does not provide the dates of the “time served” for which
he is entitled to credit.
3 “Our standard of review of a court’s order denying a petition for writ of
habeas corpus is limited to abuse of discretion. Thus, we may reverse the
court’s order where the court has misapplied the law or exercised its discretion
in a manner lacking reason.” Rivera v. Pa. Dept. of Corr., 837 A.2d 525,
528 (Pa. Super. 2003) (citations omitted). Whether the trial court has
authority to correct an alleged sentencing error is a pure question of law which
we review under a de novo standard. See Commonwealth v. Kremer, 206
A.3d 543, 547-48 (Pa. Super. 2019).
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In addition, Colon does not identify any portion of the record which so
much as suggests that his judgment of sentence is unclear. Claims which are
not sufficiently developed will be deemed waived. See Pa.R.A.P. 2119; see
also Commonwealth v. Felder, 247 A.3d 14, 20 (Pa. Super. 2021) (citation
omitted) (“Also, an issue identified on appeal but not developed in the
appellant’s brief is abandoned and, therefore, waived.”).4
In sum, the trial court had limited authority on remand to clarify the
terms of Colon’s sentence and the trial court did so. Colon challenges that
clarification, but he presents no cogent grounds for relief. Thus, the trial
court’s order must stand.
Order affirmed.
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4 Even had Colon been erroneously denied credit time when he was sentenced
(an issue which is not now before us), relief for such error would only be
available on direct appeal or by way of a post-conviction petition. See
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007). Colon
has already unsuccessfully sought credit time in a prior appeal. See
Commonwealth v. Colon, 216 A.3d 409 (Pa. Super. Apr. 22, 2019)
(unpublished memorandum). He has also filed numerous post-conviction
petitions. Accordingly, any challenge to the legality of Colon’s sentence would
be outside the purview of this appeal, as well as procedurally barred. See
Commonwealth v. Colon, 2418 EDA 2021, 2419 EDA 2021, at *1 (Pa.
Super. October 13, 2022) (unpublished memorandum decision).
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Date: 10/16/2023
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