J-S39008-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ANTHONY FELICIANO,

                         Appellant                   No. 359 EDA 2014


                  Appeal from the Order January 14, 2014
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0002321-2008



BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 07, 2015

      Anthony Feliciano appeals from the January 14, 2014 order denying

his motion for clarification of intended sentences. We affirm.

      Appellant was charged in connection with a DEA investigation and

surveillance that culminated in his arrest on April 9, 2008, while in

possession of four kilograms of cocaine and $3,600 in currency. On June 10,

2009, Appellant pled guilty pursuant to a negotiated plea to possession with

intent to deliver cocaine at criminal action number 39-2321 of 2008.    The

terms of the plea were stated on the record.           In exchange for the

aforementioned plea, the Commonwealth agreed to “waive the mandatory

minimum” and that the standard range bottom would be “the cap of the

minimum sentence.” N.T., 6/10/09, at 2. It was represented that, based on
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Appellant’s   prior record score of five, the minimum sentence would be

ninety-six months.   Id. at 3.      During the colloquy, the court verified with

Appellant that he was on probation or parole when this offense was

committed.    Id. at 9.    The court specifically inquired whether Appellant

understood that “the State Parole Board acts independently of anything I

might do, but certainly any time that you might owe them will be in addition

to my sentence.”     Id.    Appellant acknowledged on the record that he

understood. Id. at 10. Appellant also denied that anyone had made him

any promises regarding his sentence other than what was discussed in open

court. Id. at 11.

      At sentencing on July 16, 2009, Appellant’s counsel acknowledged that

the offense was committed while Appellant was on state parole. Noting that

Appellant would be incarcerated for a significant period and “that there will

be no double dipping of credit time” since his parole sentence would be

consecutive to the sentence imposed on this conviction, counsel set forth

additional factors in mitigation.    N.T., 7/15/09, at 5.   Appellant addressed

the sentencing court and acknowledged that “by imposing here the sentence

of ninety-six months, along with parole,” he would be incarcerated for about

ten years. Id. at 8. He sought leniency and asked that the “front number”

be as low as possible. Id. at 9. The court sentenced Appellant on July 15,

2009, to eight to twenty years imprisonment and a $50,000 fine. Appellant




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filed a timely motion for reconsideration of sentence on July 24, 2009, which

was denied that same day. He did not file a direct appeal.

      On June 25, 2010, Appellant filed a timely pro se petition for PCRA

relief, counsel was appointed, and counsel filed an amended petition and

second amended petition on Appellant’s behalf.       In the latter, Appellant

alleged that his guilty plea was unlawfully induced by a promise of

concurrency between the parole violation sentence and the sentence being

imposed herein. Amended PCRA Petition at ¶9. He did not seek to withdraw

his plea on this basis but instead requested that his sentence be modified

pursuant to Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976), to enable

him to receive the benefit of his plea bargain.

      The PCRA court held an evidentiary hearing.     Appellant testified that

his understanding of the plea bargain was that the district attorney would

write a letter recommending that parole back time and the new sentence

would run concurrently.     N.T., 11/19/10, at 19.    He admitted that this

agreement was not discussed on the record and maintained that he only

learned that it was illegal to run the sentences concurrently several weeks

later. Id. at 20. On cross-examination, Appellant conceded that the court

set forth the terms of the plea when he entered it. While Appellant could not

recall that the court advised him that his parole back time would be in

addition to the sentence imposed, he acknowledged that fact at the hearing.

Id. at 26. He was confronted with the notes of testimony from sentencing

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where he and his counsel asked for a mitigated range sentence due to the

fact that any sentence in this matter would be served in addition to his state

parole time. Id. at 28-31. Trial counsel testified that the plea agreement

did not involve the sentence running concurrently with the sentence on the

parole violation, that the Commonwealth did not represent that it would

recommend concurrency, and that he specifically discussed with Appellant

the presumptive ranges for parole violations.         Id. at 41-43.      At the

conclusion of the hearing, the PCRA court denied relief and this Court

affirmed on appeal. Commonwealth v. Feliciano, 31 A.3d 758 (Pa.Super.

2011) (unpublished memorandum).

      On January 13, 2014, Appellant filed a pro se motion for clarification of

intended sentences in which he averred that he was sentenced pursuant to a

negotiated plea bargain and that it was his understanding that the sentence

imposed would run concurrently to prior sentences.         He alleged that the

Department of Corrections was incorrectly treating this sentence as

consecutive to prior sentences, and he asked the court to issue an order

clarifying that his July 15, 2009 sentence was to run concurrently. The trial

court denied the motion.

      Appellant filed the within appeal from the denial of the motion.       His

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal

identified a different alleged error: that the court, by failing to designate the




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sentence as concurrent, had violated Pa.R.Crim.P. 704’s speedy sentence

rule and that discharge was appropriate.

       Appellant identifies four issues for our review:

       1. Did the Pennsylvania Legislature and-or court of common
          pleas “suspend” the writ of habeas corpus in violation
          Pennsylvania Constitution Article I, 4 and U.S. Constitution
          Article I, § 9(2)?

       2. Did the Pennsylvania Legislature and compliant trial court
          create/follow sentencing statutes/procedures in violation
          separation of powers doctrine of Pennsylvania and U.S.
          Constitution?

       3. Did the Pennsylvania Legislature and trial court ignore the
          mandates and supremacy of the U.S. Constitution
          amendments 5, 6, 14?

       4. Must the illegal sentences imposed in the case be corrected?

Appellant’s brief at 5.1

       In denying Appellant’s motion for clarification, the trial court simply

rejected Appellant’s factual premise that the sentence imposed was to run

concurrently and found that the issue had been previously litigated.

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1
  Appellant styles his brief as “Pro Se Indigent Appellant Habeas Corpus
Based Brief.” The reference to habeas corpus may stem from the fact that
Appellant notes in his brief that he filed a petition for writ of habeas corpus
on July 10, 2014, which he characterizes as “supplementing his ‘Motion for
Clarification of Intended Sentences.’” Appellant’s brief at 7. The record
reveals, however, that Appellant filed separate notices of appeal from the
January 14, 2014 order denying his motion for clarification and the
subsequent order of August 19, 2014, denying his petition for writ of habeas
corpus. The appeals have been docketed at 359 EDA 2014 and 2725 EDA
2014, respectively. Appellant’s brief improperly conflates the two appeals.



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Appellant’s Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal ignores the prior factual determination that his sentence was imposed

consecutively.     Although his alleged error is framed as a challenge to the

legality of his consecutive sentence, it is nothing more than a rehash of his

first PCRA petition arguing that his plea was involuntary.2 We agree with the

trial court that Appellant’s claim herein was previously litigated, rejected,

and affords no basis for relief. 42 Pa.C.S. § 9544(a) (for purposes of the

PCRA, an issue is previously litigated if it has been raised and decided in a

prior PCRA proceeding); 42 Pa.C.S. § 9543(a)(3) (PCRA petitioner ineligible

for relief if his claim has been previously litigated).

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015



____________________________________________


2
 If Appellant’s motion for clarification had encompassed the same argument
he articulated in his Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, the trial court would likely have treated it as a
PCRA petition and properly dismissed it as untimely.



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