Com. v. Merced, A.

J-S65025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALBERTO MERCED
Appellant No. 296 EDA 2014
Appeal from the PCRA Order December 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015128-2008
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 23, 2014
Appellant, Alberto Merced, appeals from the order entered on
December 30, 2013, dismissing his petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The PCRA court set forth the applicable facts and procedural history of
this case as follows:
On June 22, 2010, [Appellant], who is no longer
incarcerated, entered a negotiated guilty plea to the first-
degree felonies of aggravated assault and criminal
conspiracy[. The trial court] imposed the negotiated
sentence of three to eight years’ imprisonment followed by
four years’ probation “to be served at the same time as any
other sentence” he was then serving, “with credit for any
time served.” [The trial court] was clear in explaining to
[Appellant] that the sentence was to commence “starting
from today,” the day he was sentenced. In his [counseled]
[a]mended [PCRA] petition, [Appellant] claims his sentence
illegally violates his right to due process because the
Department of Corrections (“DOC”) did not calculate his
time credit correctly in light of [the trial court’s] order that
*Retired Senior Judge assigned to the Superior Court.
J-S65025-14
the sentence be served concurrently. He also claims that
the court commitment paperwork sent to the DOC failed to
reflect the order for a concurrent sentence. [Appellant]
believes he is entitled to relief in the form of a credit from
June 2, 2009, the start of a previous sentence, through the
date of his guilty plea and sentencing on this case on June
22, 2010.
* * *
On June 22, 2011, [Appellant] filed a PCRA petition pro
se. Elayne C. Bryn, Esquire, was appointed as his counsel.
On December 4, 2012, Ms. Bryn filed an amended PCRA
petition on his behalf, raising essentially the same issues.
[The PCRA court] dismissed the petition on December 30,
2013, as having no merit. [Appellant] timely filed a notice
of appeal on January 28, 2014. On February 18, 2014,
[Appellant] timely filed, pursuant to the [PCRA court’s]
order, a concise statement of the errors complained of on
appeal, pursuant to Pa.R.A.P. 1925(b)(1), articulating the
same issues raised in the PCRA petitions. [The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on
February 28, 2014.]
PCRA Court Opinion, 2/28/2014, at 1-2, 4 (record citations omitted).
On appeal, Appellant presents the following issue for our review:
I. Whether the PCRA court erred in denying [A]ppellant
[PCRA] relief because the Pennsylvania [DOC] did not
give him credit for time that he spent incarcerated
prior to his guilty plea.
Appellant’s Brief at 3.
In his sole issue presented, Appellant claims “he should be given credit
[for] time he spent incarcerated from June 2, 2009 through June 22,
2010[,]” the “time that he spent incarcerated prior to his guilty plea” in this
case. Id. at 7. More specifically, he claims that on the day he “was
sentenced in this matter, he was serving a sentence for [another criminal
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case before a different judge] that was imposed on June 2, 2009.” Id. at 5.
Appellant claims that the official court document, Court Commitment Form
DC-330B, sent to the DOC setting forth the sentence imposed by the trial
court did not accurately reflect that Appellant “should serve this sentence
concurrently with the sentence that he was then serving[.]” Id. Appellant
also suggests that Form DC-330B listed the wrong attorney of record. Id. at
10. Appellant avers that “[u]nder state law, the Court of Common Pleas has
the power to issue and amend Form DC-330B; the [DOC] does not.” Id. at
7. Thus, Appellant argues “the trial court’s failure to award credit for time
spent in custody prior to sentencing involves the legality of sentence.” Id.
In essence, Appellant is arguing that he is entitled to credit for the time he
spent incarcerated from the date of the imposition of sentence in the
unrelated case, on June 2, 2009, until he pled guilty in this matter, on June
22, 2010.
Initially, we note that Appellant’s claim is properly before us. “If the
alleged error [in computing credit for time served] 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.”
Commonwealth v. Perry, 563 A.2d 511, 512-513 (Pa. Super. 1989)
(internal citation omitted). “It [i]s 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 [i]s
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deemed cognizable as a due process claim in PCRA proceedings.” Id.
(citation omitted; emphasis in original). Here, Appellant claims that the trial
court failed to award credit for time served by failing to specify whether his
current sentence was to be served concurrently with other sentences he was
already serving.
“Our standard of review regarding a PCRA court's order is whether the
determination of the PCRA court is supported by the evidence of record and
is free of legal error.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.
Super. 2011) (citation omitted). “The PCRA court's findings will not be
disturbed unless there is no support for the findings in the certified record.”
Id.
Applicable herein, Pa.R.Crim.P. 705 states as follows:
(A) When imposing a sentence to imprisonment, the
judge shall state the date the sentence is to
commence.
(B) When more than one sentence is imposed at the same
time on a defendant, or when a sentence is imposed
on a defendant who is sentenced for another offense,
the judge shall state whether the sentences shall run
concurrently or consecutively. If the sentence is to run
concurrently, the sentence shall commence from the
date of imposition unless otherwise ordered by the
judge.
Pa.R.Crim.P. 705.
With regard to credit for time-served, a trial court is statutorily
mandated to give credit as follows:
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(1) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody as a result of the criminal charge for which a prison
sentence is imposed or as a result of the conduct on which
such a charge is based. Credit shall include credit for time
spent in custody prior to trial, during trial, pending
sentence, and pending the resolution of an appeal.
* * *
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or acts
that occurred prior to his arrest, credit against the
maximum term and any minimum term of any sentence
resulting from such prosecution shall be given for all time
spent in custody under the former charge that has not been
credited against another sentence.
42 Pa.C.S.A. § 9760.
“In Pennsylvania, the text of the sentencing order, and not the
statements a trial court makes about a defendant's sentence, is
determinative of the court's sentencing intentions and the sentence
imposed.” Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013).
Moreover, “[f]orm DC–300B is a commitment document generated by the
Common Pleas Criminal Court Case Management System.”
Commonwealth v. Heredia, 97 A.3d 392, 394 n.3 (Pa. Super. 2014),
citing 37 Pa.Code § 96.4; 42 Pa.C.S.A. § 9764. “Section 9764 of the Judicial
Code sets forth the procedure associated with transfer of an inmate into
DOC custody and provides that, on commitment of an inmate, the
transporting official must provide the DOC with a copy of the trial court's
sentencing order and a copy of the DC–300B commitment form.” Heredia,
97 A.3d at 394 n.3, citing 42 Pa.C.S.A. § 9764(a)(8).
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Herein, the PCRA court determined:
At the time [Appellant] was sentenced in this case, he
was already serving concurrent sentences of two to four
years’ imprisonment, followed by five years’ probation,
imposed by another judge of [the Philadelphia County Court
of Common Pleas] on June 2, 2009. At the sentencing
hearing in this case, [the trial court] stated repeatedly that
[Appellant’s] sentence would commence on the day of
sentencing and would commence on the day of the
sentencing and would run concurrently with any other
sentences he was then serving with any available time
credit to be applied. The [trial court] said it understood that
[Appellant] wanted to enter a “negotiated plea where the
Commonwealth has agreed to drop all other charges and
recommend a sentence of three to eight years followed by
four years reporting probation with this sentence to run
at the same time as any other sentence that you’re
currently serving.” Referring to the sentence about to be
imposed, the [trial court] explained that “starting from
today, it would be served at the same time as your
other sentence.” [Appellant] said, “It’s my understanding
that since it’s being run together that the three to eight will
overlap two to four.” The [trial court] clarified to
[Appellant], “They would overlap but not completely.” The
[trial court] further explained, “What my sentence would
say, if I accepted the negotiations, is that you would get
three to eight years followed by four years reporting
probation to be served at the same time as any other
sentence you’re currently serving.” The [trial court]
again explained that “starting from today at least three to
eight years would be served at the same time as your other
sentence. ... How they calculate what went to your other
case and what goes to this case is something that they do
elsewhere. … Do you understand that?” [Appellant]
answered, “Yes, I understand it.” The [trial court] again
stressed,
“I want to make sure that he knows what’s going to
happen and that you’re not expecting that you
have a whole several years of back time that
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are going to be credited. But starting from
today, it will be three to eight years and there may
be some credit that they credit towards this case.
Do you understand that?”
[Appellant] replied, “Yes.”
PCRA Court Opinion, 2/28/2014, at 3-4 (record citation omitted; emphasis in
original). Moreover, the PCRA court noted, “Court Commitment Form, DC-
300B, clearly states on page 2, “Sentence to run concurrent with any other.”
Id. at 4.
Here, upon review, the certified record reflects that the trial court’s
sentencing order expressly stated that Appellant’s sentence was “to run
concurrent with any other” and unambiguously granted him “credit for any
time served.” Trial Court Sentencing Order, 6/22/2010, at 1 (emphasis
added). Likewise, the accompanying DC-300B form attached to the
sentencing order, as contained in the certified record, contains identical
language. See Form DC-330B, 6/22/2010, at 2. Thus, the sentencing order
and accompanying form clearly expressed that Appellant’s challenged
sentence was to run concurrent to any other sentences he was currently
serving. There is no dispute that Appellant was serving another sentence at
the time the trial court entered the sentencing order in this case. The
sentence in contention here commenced on the date the sentencing order
was issued, June 22, 2010. Pa.R.Crim.P. 705(b). Moreover, the PCRA court
noted that “the period from June 2, 2009, to June 22, 2010, was already
credited to his earlier cases[.]” PCRA Court Opinion, 2/28/2014, at 6, citing
DOC Form DC16E – Sentence Status Summary, 7/14/2010. Appellant is not
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entitled to time “credited against another sentence.” 42 Pa.C.S.A. §
9760(4). Accordingly, for all of the foregoing reasons, Appellant’s disputed
sentence was legal.1 Hence, we discern no error of law or abuse of
discretion in denying Appellant PCRA relief. Thus, Appellant’s sole claim
lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
____________________________________________
1
We summarily reject Appellant’s claim that listing the mistaken trial
counsel on Form DC-330B somehow affected the legality of his sentence.
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