Com. v. Cummings, W. ( 2018 )

J-S17040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
WAYNE CUMMINGS
Appellant No. 3739 EDA 2016
Appeal from the Judgment of Sentence entered October 27, 2016,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003874-2010 &
CP-51-CR-0003875-2010.
BEFORE: BENDER, P.J.E., LAZARUS, J. and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 16, 2018
Wayne Cummings appeals from the judgment of sentence imposed
following resentencing. We affirm.
The pertinent facts and procedural history are as follows: On June 14,
2011, the trial court convicted Cummings for multiple counts of sex offenses
he perpetrated on two girls, ages 11 and 12. On December 2, 2011, the
trial court sentenced him to an aggregate term of 7 to 14 years of
imprisonment. Cummings filed a timely appeal to this Court, in which he
challenged the trial court’s determination that he was a sexually violent
predator (“SVP”). We rejected this claim, and affirmed his judgment of
sentence in an unpublished memorandum filed on March 27, 2013.
Commonwealth v. Cummings, No. 276 EDA 2012.
J-S17040-18
Thereafter, Cummings filed a timely PCRA petition, in which he
asserted that his aggregate 7 to 14 year judgment of sentence included the
imposition of mandatory minimum sentence that had been declared
unconstitutional in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).
The Commonwealth agreed that Cummings was entitled to resentencing.
Thus, on October 27, 2016, the trial court resentenced Cummings to an
aggregate 6 to 12 year judgment of sentence. This appeal follows the denial
of Cumming’s motion to modify sentence. Both Cummings and the trial
court have complied with Pa.R.A.P. 1925.
Cummings raises the following issues on appeal:
Was [Cummings] entitled to a new [SVP] evaluation by the
Pennsylvania Sex Offenders [Assessment] Board prior to
his resentencing.
[Whether] a sentence requiring lifetime registration for
multiple convictions in one proceeding contravenes the
Pennsylvania Supreme Court holding in A.S. v. State
Police, 143 A.3d 896 (Pa. 2016), that such registration
requires fist “an act, a conviction and a subsequent act.”
Has the [Pennsylvania] Department of Corrections applied
the restructured sentence correctly?
Cummings’ Brief at 5 (excess capitalization omitted).
In his supporting argument, Cummings concedes that his first two
issues were correctly disposed of by the trial court. He nevertheless claims
that the “Department of Corrections has calculated the expiration of [his]
maximum [sentence pursuant to the new 6-12 year aggregate] incorrectly
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and we wish that this opinion could rectify the situation.” Cummings’ Brief
at 9.
Initially, we note that because Cummings did not raise this third claim
in his Pa.R.A.P. 1925(b) statement it is waived. See generally, See
Commonwealth v. Pukowsky, 147 A.3d 1229 (Pa. Super. 2016).
Moreover, absent waiver, the trial court has no authority to grant such relief.
Rather, the only procedural avenue by which a criminal defendant can
pursue a claim alleging that the Department of Corrections miscalculated his
credit for time served is by filing a separate lawsuit in Commonwealth Court.
See generally, Commonwealth v. Wyatt, 115 A.3d 876 (Pa. Super.
2015).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/18
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