J-S58027-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

PETER J. SCHULTZ, JR.

                         Appellant                    No. 313 MDA 2016


               Appeal from the PCRA Order January 19, 2016
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0000114-2012
                          CP-54-CR-0000117-2012
                          CP-54-CR-0000654-2011
                          CP-54-CR-0000655-2011


BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 10, 2017

      Peter J. Schultz, Jr. appeals from the January 19, 2016 order denying

his petition for post-conviction relief filed August 27, 2015. We affirm.

      We set forth the facts in a previous appeal.

             The Commonwealth charged Appellant with multiple counts
      of possession of a controlled substance, possession with intent to
      deliver, delivery of a controlled substance, and possession of
      drug paraphernalia at the above-captioned criminal docket
      numbers. Appellant entered a negotiated guilty plea, and on
      May 17, 2012, the trial court imposed a sentence of 24 months
      of State Intermediate Punishment (“SIP”), with 59 days of credit
      for time served dating to March 20, 2012. On March 5, 2014,
      shortly before the 24-month SIP sentence was set to expire, the
      trial court found Appellant in violation of the program and
      therefore ordered him to serve an additional three months.




* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Schultz, 580 MDA 2014 (Pa.Super. 2015) (unpublished

memorandum) (hereinafter “Schultz I”).

       Appellant filed a timely appeal from the March 5, 2014 order1

extending his SIP sentence (Schultz I), alleging that he was deprived of his

right to counsel at the hearing.          The trial court, in its Pa.R.A.P. 1925(a)

opinion, agreed and requested that we vacate and remand for a counseled

hearing.

       Notwithstanding the pending appeal and request for remand, the trial

court, prior to our Schultz I decision, revoked Appellant’s SIP sentence on

June 12, 2014. Appellant was then re-sentenced on September 4, 2014 to

fifty-two months to 104 months of incarceration.2 Appellant filed a notice of

appeal from that sentence.          See Commonwealth v. Schultz, 116 A.3d

1116 (Pa.Super. 2015) (hereinafter “Schultz II”).

       On January 27, 2015, we issued Schultz I. In addition to his right to

counsel claim, Appellant maintained that he had completed his SIP sentence

and requested discharge. We disagreed, finding that Appellant had failed to

successfully complete his SIP sentence by the end of the twenty-four month

term. We vacated the March 5, 2014 order, however, holding that the trial
____________________________________________


1
 We note that the order is dated March 5, 2014, but was not docketed until
March 7, 2014. We use the earlier date in this memorandum.
2
  The trial court’s opinion in this matter states that Appellant was
represented at this hearing.



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court did not actually revoke the SIP sentence but had instead extended the

sentence.     We concluded that the trial court lacked both jurisdiction and

statutory authorization to extend the SIP sentence beyond the statutory

twenty-four month period, and remanded for further proceedings.               The

memorandum noted in a footnote that the appeal of the September 4, 2014

sentence was then pending before a different panel.

       On May 4, 2015, we issued Schultz II, which addressed the

September 4, 2014 judgment of sentence. Appellant raised five challenges

pertaining to the trial court’s revocation and re-sentencing, four of which we

deemed harmless.3 Appellant’s fifth issue was that the trial court erred in

imposing a new judgment of sentence, again raising the allegation that his

SIP sentence had expired in late March of 2014. We proceeded to address

that claim, and concluded that the sentence was valid since Appellant had

failed to successfully complete his SIP sentence by the end of the twenty-

four month term.        Schultz II.        Appellant did not seek review with our

Supreme Court.

       On August 27, 2015, Appellant filed a pro se PCRA petition,

challenging     the   September       4,   2014   judgment   of   sentence.   The

Commonwealth filed a response to the motion on October 5, 2015, averring
____________________________________________


3
  The four issues concerned the propriety of introducing hearsay evidence
demonstrating that Appellant was expelled from the SIP program.




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that the Schultz I remand order meant Appellant’s sentence was not yet

final. Id. Accordingly, the Commonwealth requested that the court dismiss

the petition as premature and issue a briefing schedule on the jurisdictional

issue.    Id. at 2.   The trial court treated the petition under the PCRA and

issued a Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing.

Following dismissal, Appellant timely filed a notice of appeal. The trial court

and Appellant complied with Pa.R.A.P. 1925, and the matter is now ready for

review. Appellant raises the following issue:

         Whether the [s]entencing [c]ourt had jurisdiction to issue an
         order dated March [5], 2014, in which the court extended
         Appellant’s participation in the State Intermediate Punishment
         Program[?]

Appellant’s brief at 4.

         Preliminarily, we note that the trial court properly treated the petition

as a request for relief under the PCRA. Appellant’s revocation sentence was

imposed on September 4, 2014, and he timely appealed that sentence to

this Court.    On May 4, 2015, Schultz II affirmed Appellant’s judgment of

sentence. Accordingly, his sentence became final on June 3, 2015, when his

time period for seeking further review expired.            See 42 Pa. C.S. §

9545(b)(3) (judgment of sentence final upon expiration of time for seeking

review with our Supreme Court); Pa.R.A.P. 1113(a) (petition for allowance

of appeal must be filed within thirty days after entry of Superior Court




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order).     Thus, the court properly treated the request for relief as a PCRA

petition.

      We now address the denial of PCRA relief.         We review the order to

determine whether the findings of the PCRA court are supported by the

record and free of legal error. Commonwealth v. Treiber, 121 A.3d 435,

444 (Pa. 2015) (citation omitted). The court’s credibility findings are to be

accorded great deference and are binding where supported by the record.

Id. (citation omitted).      However, we afford no deference to its legal

conclusions, which we review de novo with a plenary scope of review.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc)

(citing Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012)).

      Herein, Appellant continues to assert that his SIP sentence expired

before the June 12, 2014 revocation proceeding. According to Appellant, his

SIP sentence was completed as of March 20, 2014.                  “Therefore, the

subsequent sentence of 52 to 104 months was a nullity since the March 5th

extension of SIP was devoid of jurisdiction.”       Appellant’s brief at 6.   The

Commonwealth, on the other hand, concedes that the court was without

jurisdiction to enter the March 5, 2014 order, but asks us to affirm because

the trial court “regained jurisdiction to revoke and resentence upon the

[Department        of    Corrections]    formally     expelling      Appellant[.]”

Commonwealth’s brief at 16.




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      It is clear that Appellant is litigating issues that have already been

decided.   Schultz I vacated the March 5, 2014 order, and we did not

remand for any type of fact-finding.    Appellant claims that the September

re-sentencing was a nullity because his sentence had expired in March of

2014, but this position was clearly rejected by Schultz II.      Id. at 1123.

The trial court could not rule to the contrary, nor can we.               See

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995).

      To be eligible for PCRA relief, the petitioner is required to establish

that the allegation of error has not been previously litigated. 42 Pa.C.S. §

9543(a)(3).    An issue is considered previously litigated if “the highest

appellate court in which the petitioner could have had review as a matter of

right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). The

statute does not explicitly define the term “issue.” See Commonwealth v.

Collins, 957 A.2d 237, 246 (Pa. 2008). However, the previous litigation bar

clearly applies where a litigant is advancing the exact same allegation of

error. “A claim previously litigated in a direct appeal is not cognizable under

the PCRA.”    Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.Super.

2000); Commonwealth v. Berry, 760 A.2d 1164 (Pa.Super. 2000)

(voluntariness of plea previously litigated; that bar cannot be avoided

through “different packaging”). Instantly, Appellant argued to the Schultz

II Court that his SIP sentence expired on March 20, 2014. The same exact

claim is made here. Thus, the previous litigation bar applies.

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      Since we may affirm on any basis supported by the record,

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa.Super. 2016), we deem

the issue previously litigated and affirm the denial of PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2017




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