J-S40042-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                  Appellee                   :
                                             :
                      v.                     :
                                             :
CHAD E. SCHULTZ,                             :
                                             :
                  Appellant                  :   No. 398 WDA 2015

               Appeal from the Order Entered February 11, 2015,
               in the Court of Common Pleas of Jefferson County,
               Criminal Division, at No.: CP-33-CR-0000213-2012

BEFORE:       FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED SEPTEMBER 18, 2015

        Chad E. Schultz (Appellant) appeals from the order entered February

11, 2015, which granted in part and denied in part his petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon

review, we dismiss the appeal.

        On January 17, 2013, following a jury trial, Appellant was convicted of

possession of a controlled substance, possession of a controlled substance

with intent to deliver (PWID), and criminal conspiracy to deliver a controlled

substance.1 On February 4, 2013, he was sentenced to a mandatory term of

3 to 8 years of incarceration for the PWID conviction pursuant to 18 Pa.C.S.

§ 7508(a)(7)(i) and a consecutive 33 months to 8 years of incarceration for




1
    These convictions arose out of Appellant’s participation in a sale of heroin.


*Retired Senior Judge assigned to the Superior Court.
J-S40042-15


the conspiracy conviction, with credit for time served.2     On November 7,

2013,     this   Court   affirmed   Appellant’s   judgment     of   sentence.

Commonwealth v. Schultz, 91 A.3d 1277 (Pa. Super. 2013).             Appellant

did not file a petition for allowance of appeal with our Supreme Court.

        On February 18, 2014, Appellant pro se timely filed a PCRA petition.

The PCRA court appointed counsel, and an amended petition was filed.

Therein, Appellant alleged that trial counsel was ineffective for failing to

argue that the evidence was insufficient to prove the weight of the heroin

required to trigger application of the mandatory minimum sentence in this

case.3 Amended PCRA Petition, 11/5/2014, at 2-3. Appellant further alleged

that he was serving an illegal sentence because the trial court did not credit

him with 301 days’ credit for time served. Id. at 3.



2
 The possession of a controlled substance conviction merged with the PWID
conviction for sentencing purposes.
3
  In his PCRA petition, Appellant also alleged that his trial counsel was
ineffective for failing to argue that the mandatory minimum sentence did not
apply because the jury did not determine beyond a reasonable doubt the
weight of the heroin required to trigger its imposition pursuant to Alleyne v.
United States, 133 S.Ct. 2151 (2013).               Amended PCRA Petition,
11/5/2014, at 2. Appellant further argued that, in the event that Alleyne
did not apply, his trial counsel was ineffective for failing to argue that the
mandatory minimum sentence did not apply because the sentencing court
did not determine by a preponderance of the evidence the weight of the
heroin required to trigger its imposition pursuant to subsection 7508(b). Id.
In the context of his ineffectiveness claim discussed above, Appellant alleged
that the evidence was insufficient to support a determination of the weight
of the heroin under either standard. Id. at 2-3.



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      On February 11, 2015, following a hearing,4 the PCRA court issued an

order granting Appellant’s petition “with respect to his assertion that the

Commonwealth had not proven that the weight of the heroin triggered the

mandatory minimum sentence.”5 Order, 2/11/2015. The PCRA court denied

Appellant’s petition in all other respects. Further, the PCRA court stated in

its order that, if Appellant “does not appeal, the [c]ourt will issue an order

scheduling a new sentencing hearing. If he does appeal, re-sentencing will

be scheduled after judgment has become final.” Id. On February 27, 2015,

Appellant timely filed his notice of appeal.

      Appellant presents one issue for our consideration: whether the PCRA

court erred in denying his claim “that the trial court’s initial sentence was

illegal as it failed to award [Appellant 301 days of] credit for time he spent in

pre-trial incarceration at the Allegheny County Jail?” Appellant’s Brief at 5.

      Upon review of the unusual circumstances of this case, we decline to

address the merits of Appellant’s issue. By virtue of its February 11, 2015

order, the PCRA court effectively vacated Appellant’s judgment of sentence,

as it granted Appellant PCRA relief and stated it would resentence
4
  Notwithstanding the fact that Appellant filed a request for transcripts in
conjunction with his notice of appeal, the transcripts of the PCRA hearing are
not in the certified record.
5
  In granting relief on this claim, the PCRA court concluded that Appellant’s
trial counsel was ineffective for failing to argue that the Commonwealth had
failed to prove, “even by a preponderance of the evidence,” the weight of
the heroin required to trigger the mandatory minimum sentence. Opinion on
Defendant’s PCRA Petition, 2/11/2015, at 4.


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Appellant.6 Thus, Appellant’s original judgment of sentence is a legal nullity.

See Commonwealth v. Caple, -- A.3d --, 2015 WL 4497915, at *9 (Pa.

Super. 2015) (“When a sentence is vacated it is rendered a legal nullity.”).

Accordingly, any issue regarding the trial court’s calculation of credit for time

served as it relates to Appellant’s original judgment of sentence is moot.

      Moreover, any consideration of Appellant’s credit time issue as it

relates to Appellant’s new judgment of sentence is premature, as the PCRA

court’s February 11, 2015 order makes clear that Appellant has yet to be

resentenced. At the time Appellant is resentenced, a new determination will

be made as to the amount of credit to which Appellant is entitled for time

served. See generally 42 Pa.C.S. § 9760 (outlining the circumstances in

which credit for time served is to be given); see also Caple, 2015 WL

4497915, at *9 (“[W]hen a sentence is vacated and the case is remanded to

the sentencing court for resentencing, the sentencing judge should start

6
  Even if the PCRA court had not vacated Appellant’s judgment of sentence,
this Court would have done so, as his sentence was illegal.              See
Commonwealth v. Vargas, 108 A.3d 858, 876 n.13 (Pa. Super. 2014)
(noting that “legality of sentence questions are not waivable and may be
raised sua sponte by this Court” (internal quotation marks omitted)).
Pursuant to Alleyne, “[t]his Court has ruled that section 7508, in its
entirety, is unconstitutional.” Commonwealth v. Caple, -- A.3d --, 2015
WL 4497915, at *9 (Pa. Super. 2015).          Thus, any sentence imposed
pursuant to that statute is illegal. See Commonwealth v. Fennell, 105
A.3d 13, 15 (Pa. Super. 2014) (explaining that “[i]f no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction”). We further observe that, because Appellant’s direct
appeal was pending before this Court at the time Alleyne was decided,
there is no question that Alleyne applies to Appellant’s sentence.


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afresh.”) (quoting Commonwealth v. Jones, 640 A.2d 914, 919-20 (Pa.

Super. 1994)).    Thus, any issues relating to the calculation of Appellant’s

credit for time served must be addressed at the time the sentencing court

imposes Appellant’s new sentence. Should Appellant seek to challenge the

propriety of his new judgment of sentence, including the calculation of credit

for time served, he may raise such a challenge in a new direct appeal

therefrom.

      Because the only issue Appellant raises is moot, we dismiss the

appeal.

      Appeal dismissed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/18/2015




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