Com. v. Franklin, A.

J-S70041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY J. FRANKLIN
Appellant No. 1540 EDA 2015
Appeal from the Order Entered April 24, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007203-2006
BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 02, 2015
Anthony Franklin appeals from the order of the Court of Common Pleas
of Delaware County that denied his petition for habeas corpus. After careful
review, we affirm.
On December 5, 2007, Franklin entered into a negotiated guilty plea to
robbery and criminal conspiracy to commit robbery. Pursuant to the
agreement, the court sentenced him to 8½ to 20 years’ incarceration.
Franklin did not file an appeal.
Franklin filed a pro se PCRA petition on October 21, 2008, and the trial
court appointed counsel who filed a no merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
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*
Retired Senior Judge assigned to the Superior Court.
J-S70041-15
v. Finley, 550 A.2d 213 (Pa. Super. 1988). The court dismissed the petition
without a hearing on April 28, 2009.
Franklin filed a second PCRA petition on April 26, 2010, which was
dismissed on October 28, 2010. On appeal to this Court, we affirmed.
Commonwealth v. Franklin, 60 A.3d 845 (Pa. Super. 2012) (unpublished
memorandum). Franklin then filed a petition for allowance of appeal, which
our Supreme Court denied on March 26, 2013. Commonwealth v.
Franklin, 63 A.3d 1244 (Pa. 2013).
On December 29, 2014, Franklin filed a pro se pleading titled “Petition
for Writ of Habeas Corpus, Custody Credit Problem, and Refusal to Honor
Negotiated Plea Agreement to Run Concurrent with Subsequent Pending
Conviction with Delaware County.” In the Petition, Franklin avers: (1) his
Delaware County negotiated plea agreement for 8½ to 20 years’
incarceration contained a provision that his sentence would be served
concurrently with any sentence imposed for pending charges in Philadelphia;
(2) he subsequently entered a plea agreement in Philadelphia for 10 to 20
years’ incarceration; (3) the Department of Corrections (DOC) and
Philadelphia have refused to honor the Delaware County plea agreement, (4)
he is “virtually unable to obtain Notes of Testimony of December 5, 2007,
guilty plea proceedings, Sentencing Orders, and terms of negotiated plea
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agreement;1 and (5) DOC has failed to properly credit him for periods while
in custody.
The court held argument on April 23, 2015 and denied the petition the
following day. On appeal, Franklin raises the following issues for our
review:2
1. Whether [the] habeas court erred in fail[ing] to grant
discovery request for [the] December 5, 2007, guilty pleas
notes of testimony.
2. Whether [the] habeas court erred in fail[ing] to grant custody
credits for the [period] in county custody, prior to Petitioner’s
transfer to the Department of Corrections.
Appellant’s Brief, at 4.
As a preliminary matter, we reject the Commonwealth’s position that
the court lacked jurisdiction to consider any of the claims raised in the
Petition. In Commonwealth v. Perry, 563 A.2d 511 (Pa. Super. 1989),
this Court held that with respect to a challenge to credit for time served:
If the alleged error is thought to be the result of an erroneous
computation of sentence by the Bureau of Corrections, then the
appropriate vehicle for redress would be an original action in the
Commonwealth Court challenging the Bureau’s computation. If,
on the other hand, the alleged error is thought to be attributable
to the ambiguity 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.
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1
Petition for Writ of Habeas Corpus, 12/29/14, at 6.
2
The decision to grant or deny a petition for habeas corpus will be reversed
only for a manifest abuse of discretion. Commonwealth v. Giusto, 810
A.2d 123, 125 (Pa. Super. 2002).
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It [is] only when the petitioner challenges the legality of a trial
court’s alleged failure to award credit for time served as required
by law in imposing sentence, that a challenge to the sentence
[is] deemed cognizable as a due process claim in PCRA
proceedings.
Perry, supra at 512-13.
Because Franklin essentially sought clarification of his Delaware
County sentence, he properly raised the issue in a habeas corpus petition.
The trial court engaged in a thorough review of the guilty plea
transcript and concluded, “it is clear that the Commonwealth has not refused
to honor the terms of the negotiated guilty plea, and that [Franklin]
understood his sentence.” Trial Court Opinion, 7/21/15, at 2. Our
independent review of the transcript and the certificate of imposition of
judgment of sentence confirms there was no agreement that Franklin’s
sentence would run concurrently with any sentence to be imposed on the
pending Philadelphia charges.3
Because this issue was properly before the court, the court had
jurisdiction to consider Franklin’s request to obtain the transcript of his
December 5, 2007 guilty plea proceeding. Upon review, the trial court
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3
We note that Franklin does not raise the concurrent sentence issue in the
statement of question involved or in the argument section of his brief. The
only reference appears in the summary of argument where Franklin states
that his negotiated plea agreement included a sentence “to run concurrent
upon conviction of pending charge[s] in Philadelphia County.” Appellant’s
Brief, at 6. Because the issue was not otherwise raised in Franklin’s brief, it
is waived. Commonwealth v. Smith, 567 A.2d 1070, 1072 n.1 (Pa. Super.
1989) (issues raised in summary of argument but not addressed in
argument in chief waived).
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determined that Franklin was not entitled to the transcript because one had
been provided to Franklin’s first PCRA counsel who reviewed it before filing
his Turner/Finley letter. See Turner/Finley Letter, 1/21/09, at 1. We
discern no abuse of discretion in this decision, and accordingly affirm the
trial court.
Franklin next asserts that the trial court erred by failing to grant credit
for time that he was in custody. We disagree because the trial court did not
have jurisdiction to consider the claim. “A challenge to DOC’s computation
or construction of a sentence is not a cognizable claim under the PCRA.
Rather, if the alleged error is the result of DOC’s erroneous computation,
then the appropriate mechanism for redress is an original action in [the
Commonwealth] Court challenging DOC's computation.” Allen v. Com.,
Dept. of Corrections, 103 A.3d 365, 373 (Pa. Cmwlth. 2014).
Order affirmed.
Judge Donohue joins the Memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2015
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