Com. v. Tucker, L.

J. S06035/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LESTER LEE TUCKER, :
:
Appellant : No. 1046 EDA 2014
Appeal from the Order March 6, 2014
In the Court of Common Pleas of Monroe County
Criminal Division No(s).: CP-45-CR-0000876-2012
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 10, 2015
Appellant, Lester Lee Tucker, appeals from the order entered in the
Court of Common Pleas of Monroe County denying his request for sentencing
credit.1 Appellant presently claims the trial court erred in denying credit for
time he spent in pre-sentence custody in the above-captioned matter while
also serving a sentence on federal charges. For the reasons that follow, we
conclude Appellant’s request for relief must be considered under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Therefore, we
*
Former Justice specially assigned to the Superior Court.
1
We have amended the caption to reflect that Appellant took this appeal
from the trial court’s March 6, 2014 order denying sentencing credit.
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vacate the trial court’s March 6, 2014 order and remand for proceedings
consistent with this memorandum.
The procedural history relevant to this appeal is as follows. In August
of 2010, Appellant was charged with federal drug offenses, but was released
on his own recognizance. While those charges were pending, Appellant was
involved in a motor vehicle accident on March 20, 2012, which resulted in
the death of the operator of another vehicle. That same day, Pennsylvania
State Police troopers arrested and charged him with, inter alia, homicide by
vehicle and driving under the influence of alcohol (“Pennsylvania charges”).
Appellant did not post bail on the Pennsylvania charges. The following day,
March 21, 2012, federal authorities issued a detainer against him for the
federal charges.
On July 12, 2012, Appellant pleaded guilty to the federal charges. On
January 16, 2013, the United States District Court for the Middle District of
Pennsylvania sentenced him to fifteen months’ imprisonment and three
years’ supervised release (“federal sentence”). There is no indication that
Appellant was transferred to federal custody.
Meanwhile, Appellant retained different counsel (“plea counsel”) for
the Pennsylvania charges. On February 22, 2013, Appellant entered an
open guilty plea to charges of involuntary manslaughter and driving under
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the influence.2 On May 7, 2013, the trial court imposed an aggregate
sentence of thirty-three to sixty-six months’ imprisonment, with credit for
302 days.3
Appellant, on May 20, 2013, filed a post-sentence motion seeking
modification of his sentence.4 The trial court, on June 6, 2013, resentenced
him to an aggregate thirty to sixty months’ imprisonment (“Pennsylvania
sentence”). The court did not state whether the Pennsylvania sentence was
concurrent or consecutive to the federal sentence. Appellant did not take a
direct appeal.
The trial court received Appellant’s pro se motion seeking additional
credit on his Pennsylvania sentence on January 22, 2014—more than seven
months after resentencing. The trial court concluded plea counsel remained
counsel of record and forwarded the motion to plea counsel. Order, 1/28/14
(citing Pa.R.Crim.P. 576(A)(4)). Plea counsel filed a counseled motion for
2
18 Pa.C.S. § 2504; 75 Pa.C.S. § 3802(c).
3
The 302 days credit, when calculated from Appellant’s arrest date of March
20, 2012, would account for the time Appellant was in custody until January
16, 2013, the date of the federal sentence.
4
Appellant’s May 20, 2013 post-sentence motions were technically untimely.
See Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en
banc) (holding the ten-day period for filing post-sentence motion in
Pa.R.Crim.P. 720(A)(1) refers to date sentence was pronounced and not
date sentence was entered on docket). However, the trial court’s modified
sentence of June 6, 2012, was entered within thirty days of its initial
sentence. See 42 Pa.C.S. § 5505. This anomaly in the record does not
affect our disposition.
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time credit on February 19, 2014, asserting Appellant remained in
Pennsylvania’s custody since his March 20, 2012 arrest and did not serve
any part of his federal sentence under federal supervision. Appellant’s Mot.
for Time Credit, 2/19/14, at ¶ 10. He claimed he was entitled to an
additional 111 days credit on the Pennsylvania sentence from January 16,
2013, to May 7, 2013—that is, from the date the federal sentence was
imposed to the original sentencing date on the Pennsylvania charges. 5 Id.
The court, on March 6, 2014, entered the instant order denying
Appellant’s counseled motion,6 but amending its sentence to state it was
consecutive to the federal sentence. Fifteen days later, on March 31, 2014,
plea counsel petitioned the court to withdraw from representation, averring
Appellant continued to file pro se post-sentence motions for which plea
counsel had not been retained.
5
Plea counsel also suggested he did not argue the question of credit at the
time of sentencing because documentation regarding the federal sentence
was not available. Appellant’s Mot. for Time Credit at ¶ 9.
6
The trial court attached to its order a letter sent to it from Rebecca
Harmar, a probation officer, “in response to [Appellant’s motion for credit].”
Letter from Rebecca Harmar, 2/24/14. Ms. Harmar averred that the Monroe
County Probation Department did not concur with Appellant’s request for
credit. Id. She suggested that the court amend its sentencing order and
recommended that the Pennsylvania sentence be ordered to run
consecutively to the federal sentence because “the two cases [were] wholly
unrelated and occurred nearly two years apart from one another.” Id.
Neither the letter nor the record indicate that the letter was distributed to
the parties before the court ruled on Appellant’s motion.
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On April 2, 2014, Appellant filed a timely pro se notice of appeal from
the March 6, 2014 order. On April 15, 2014, the trial court issued an order
requiring the filing of a Pa.R.A.P. 1925(b) statement. On April 28, 2014, the
court granted plea counsel’s motion to withdraw. The following day, April
29th, Appellant’s pro se Rule 1925(b) statement was stamped for first class
postage to the court. See Copestakes v. Reichard-Copestakes, 925 A.2d
874, 875 n.2 (Pa. Super. 2007) (discussing prisoner mailbox rule).
Appellant subsequently obtained new appellate counsel through the Office of
the Public Defender. This appeal followed.
Appellant, in the counseled brief submitted in this appeal, presents the
following question for review: “Whether [he] should be given time credit
against his state sentence for the time he spent serving his federal sentence
when he had [a]lways remained housed in a state correctional facility?”
Appellant’s Brief at 4. Before considering this issue, however, we must
consider the procedures under which the trial court considered Appellant’s
pro se motion filed more than seven months after resentencing.
It is well settled that
the PCRA provides the sole means for obtaining collateral
review, and that any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.
. . . Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.
Super. 2004) (holding collateral challenge to legality of
sentence for failure to credit for time served must be
brought under the PCRA); Commonwealth v. Guthrie,
749 A.2d 502, 503 (Pa. Super. 2000) (holding motion to
correct illegal sentence would be treated as PCRA petition
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where the appellant did not file timely post-sentence
motions or a direct appeal).
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (some
citations and punctuation omitted).
Instantly, the underlying judgment of sentence became final on July 8,
2013, when Appellant did not take a direct appeal from the June 6th
resentencing order.7 See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).
Accordingly, Appellant’s pro se motion seeking credit, filed January 21,
2014, should have been regarded as a pro se PCRA petition. See Fowler,
930 A.2d at 591, 597. Moreover, because Appellant filed his pro se motion
within one year of his conviction becoming final, it was timely under PCRA.
See 42 Pa.C.S. § 9545(b)(1), (3).
Because Appellant’s pro se motion constituted a PCRA petition, the
procedures for post-conviction collateral proceedings in Chapter 9 of the
Pennsylvania Rules of Criminal Procedure applied, including the right to
counsel. See Pa.R.Crim.P. 904.
While the right to legal representation in the PCRA context
is not constitutionally derived, the importance of that right
cannot be diminished merely due to its rule-based
derivation. In the post-conviction setting, the defendant
normally is seeking redress for trial counsel’s errors and
omissions. Given the current time constraints of 42
Pa.C.S. § 9545, a defendant’s first PCRA petition, where
the rule-based right to counsel unconditionally attaches,
7
Because the thirtieth day following resentencing fell on Saturday, the
deadline for filing a timely direct appeal was the following Monday, i.e., July
8, 2013. See 1 Pa.C.S. § 1908.
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may well be the defendant’s sole opportunity to seek
redress for such errors and omissions. Without the input
of an attorney, important rights and defenses may be
forever lost.
Commonwealth v. Robinson, 970 A.2d 455, 458-59 (Pa. Super. 2009) (en
banc).
We conclude the trial court erred by proceeding outside of the
framework of the PCRA and forwarding Appellant’s pro se motion to plea
counsel. See Fowler, 930 A.2d at 591; accord Commonwealth v.
Wright, 846 A.2d 730, 733-34 (Pa. Super. 2004) (reiterating trial court
should not entertain post-sentence motions when they are clearly untimely
and right to file post sentence motions has not been restored nunc pro
tunc). Although the trial court technically provided counsel, Appellant was
entitled to PCRA counsel. See Pa.R.Crim.P. 904(C). Moreover, the court did
not comply with the procedures for deciding a PCRA petition, see
Pa.R.Crim.P. 907, but rather treated Appellant’s motion as if it were part of
the underlying criminal proceeding.
Accordingly, we decline to reach the merits of the present appeal, but
vacate the trial court’s March 6, 2014 order and remand this matter. The
trial court shall regard Appellant’s pro se motion as a PCRA petition and
comply with the procedures set forth in Chapter 9 of the Rules of Criminal
Procedure.
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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