J-S30034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEJON ALEXANDRE,                           :
                                               :
                       Appellant               :      No. 2966 EDA 2018

                 Appeal from the Order Entered August 24, 2018
               in the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005391-2014

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 14, 2019

       Lejon Alexandre (“Alexandre”) appeals, pro se, from the Order denying

his first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1

See 42 Pa.C.S.A. §§ 9541-9546. We vacate and remand.

       On June 23, 2015, Alexandre entered a negotiated guilty plea to robbery

and criminal conspiracy. The trial court sentenced Alexandre, pursuant to the

plea agreement, to an aggregate term of 11½ to 23 months in prison, followed

by 5 years of probation.




____________________________________________


1 Alexandre titled his pro se filing a Petition for Writ of Habeas Corpus.
However, as we will discuss, infra, Alexandre’s Petition is actually a PCRA
Petition.
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        In January 2016, while under supervision, Alexandre was arrested and

charged with various unrelated offenses in Philadelphia County. As a result of

the new charges, the trial court conducted a Gagnon II2 hearing on

November 14, 2017, after which the trial court found Alexandre to be in

violation of his parole and probation.         The trial court revoked Alexandre’s

parole, and ordered him to serve the full back time of 94 days for his criminal

conspiracy conviction, and full back time of 45 days for his robbery conviction,

with immediate parole for both counts. Additionally, the trial court revoked

Alexandre’s probation, and re-sentenced him to concurrent terms of 3 to 8

years in prison. Relevant to this appeal, the Sentencing Order stated that

Alexandre’s revocation sentence was effective November 14, 2017, the date

of sentencing. The trial court ordered Alexandre’s revocation sentence to be

served concurrently with the sentence imposed in the Philadelphia case.

Alexandre did not file a direct appeal.

        In approximately July 2018, Alexandre sent the instant pro se Petition

for Writ of Habeas Corpus to the Honorable Richard M. Cappelli, Jr. (“Judge

Cappelli”).3 In the Petition, Alexandre argued that because his revocation was


____________________________________________


2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3 Alexandre mailed his Petition directly to Judge Cappelli’s chambers. The
Petition was never filed with the clerk of courts, and was never entered on the
trial court docket.




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to be served concurrently with his Philadelphia sentence, his revocation

sentence should have commenced on the same date as his Philadelphia

sentence. Additionally, Alexandre requested that the PCRA court award him

credit for time served on both cases.            The PCRA court denied Alexandre’s

Petition on August 24, 2018.4 Alexandre filed a pro se Notice of Appeal on

October 1, 2018.5         By Order entered October 11, 2018, the PCRA court

directed the Delaware County Public Defender’s Officer to enter an appearance

on Alexandre’s behalf. However, the PCRA court subsequently determined

that Alexandre was not entitled to counsel, vacated its October 11, 2018

Order, and directed Alexandre to proceed pro se.



____________________________________________


4Although the filing stamp on the Order indicates a filing date of August 24,
2018, the docket reflects a filing date of August 28, 2018.

5 The PCRA court concluded that Alexandre’s appeal was untimely filed. See
PCRA Court Opinion, 12/26/18, at 3-4. Alexandre submits that he did not
receive the Order denying his Petition until September 19, 2018, due to a
“pandemic” that caused the Pennsylvania Department of Corrections (“DOC”)
to institute a lockdown of all state prisons, including mailrooms. See
Lockdown lifted at SCI-Somerset, other state prisons, DAILY AMERICAN
(September 10, 2018) https://www.dailyamerican.com/news/local/somerset/
inbrief/lockdownn-lifted-at-sci-somerset-other-state-prisons/article_db3582d
1-ae77-552c-b239-90855303c65c.html. Alexandre’s pro se Notice of Appeal
is dated Monday, September 24, 2018, the date on which a timely notice was
due. See 1 Pa.C.S.A. § 1908. Alexandre’s Notice of Appeal was entered on
the trial court docket just one week later, on October 1, 2018, and Alexandre
has not provided a prison cash slip or other evidence concerning the date he
attempted to deposit his pro se filing with prison authorities, see Pa.R.A.P.
121(a). However, in light of the unique circumstances presented by the
statewide prison lockdown, which affected mailrooms and inmate mail service,
we decline to quash Alexandre’s appeal on this basis.


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      Initially, we must consider whether Alexandre’s Petition is properly

before us, and the manner in which it must be addressed. This Court has

addressed the various mechanisms through which an appellant may challenge

a sentence as follows:

      If the alleged error is thought to be the result of an erroneous
      computation of sentence by the [DOC], then the appropriate
      vehicle for redress would be an original action in the
      Commonwealth Court challenging the [DOC’s] computation. If,
      on the other hand, the alleged error is thought to be attributable
      to ambiguity in the sentence imposed by the trial court, then a
      writ of habeas corpus ad subjiciendum lies to the trial court for
      clarification and/or correction of the sentence imposed. It is 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 is deemed
      cognizable as a due process claim in PCRA proceedings.

Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014) (paragraph

break and brackets omitted) (citing Commonwealth v. Perry, 563 A.2d 511,

512-13 (Pa. Super. 1989)).

      It appears that the PCRA court initially treated Alexandre’s Petition as a

petition for habeas corpus. See Order, 8/24/18 (referring to Alexandre’s pro

se filing as a petition for habeas corpus); see also Order, 11/7/18 (concluding

that Alexandre was “not entitled to counsel on his [Petition for] Writ of Habeas

Corpus for credit time[,]” and directing him to proceed pro se). However, in

its Opinion, the PCRA court characterizes Alexandre’s claim as a challenge to

the DOC’s computation of time, and states that Alexandre should seek redress

through an original action filed in Commonwealth Court.         See PCRA Court

Opinion, 12/26/18, at 4-6; see also id. at 5 (wherein the PCRA court



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concludes that Alexandre was not challenging the legality of his sentence, as

his Petition refers to the revocation sentence as lawful).6 We disagree, and

conclude that Alexandre’s pro se Petition for Writ of Habeas Corpus must be

considered a Petition filed pursuant to the PCRA.

       The crux of Alexandre’s claim is that he is entitled to credit for time

served, which is a challenge to the legality of his sentence. See Heredia,

supra. In his Petition, Alexandre requests relief in the form of credit for time

served. See Petition, ¶ 4. Alexandre also refers to his entitlement for time

credit in his appellate brief.       See Brief for Appellant at 5 (unnumbered)

(stating that “the judge did call for (139) days of [time credit,] which was

never received.”); see also id. (citing Pa.R.Crim.P. 1406, the predecessor of

Rule 705, which provided, in part, that credit must be given for days spent in

custody prior to the imposition of sentence on the offense).            Further,

Alexandre does not include any allegations that the DOC committed an error

in either his Petition or his brief. Cf. Heredia, supra (stating that a challenge

to the DOC’s computation of sentence must be raised in an original action in

the Commonwealth Court). Instead, he asserts that he did not receive the

appropriate credit for time served, and asks us to remand this case to the trial

court for a revised sentence. See Brief for Appellant at 5, 6 (unnumbered).

Thus, Alexandre’s Petition challenges the legality of his sentence, and must
____________________________________________


6 While Alexandre’s Petition describes his sentence as “lawful,” he does so by
citing Pa.R.Crim.P. 705, which requires a trial court to indicate the date the
sentence will commence, as well as whether multiple sentences will be served
consecutively or concurrently.

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be considered a Petition filed pursuant to the PCRA. See Heredia, supra

(stating that a challenge to the legality of sentence based on a failure to award

credit    for   time   served    is   cognizable       under    the    PCRA);   see   also

Commonwealth v. Beck, 848 A.2d 987, 988-89 (Pa. Super. 2004) (treating

a “Petition for Writ of Habeas Corpus to Correct Time Credit” as a petition filed

pursuant to the PCRA).7

         Because this is Alexandre’s first PCRA Petition, he is entitled to the

representation of counsel. See Commonwealth v. Figueroa, 29 A.3d 1177,

1180 n.6 (Pa. Super. 2011) (stating that “first time PCRA petitioners have a

rule-based right to counsel.”); see also Pa.R.Crim.P. 904(C). Accordingly,

we are constrained to vacate the Order denying Alexandre’s Petition, and

remand for a determination of whether Alexandre may proceed in forma

pauperis, and if so, for the appointment of counsel, as well as any other

proceedings      as    are   appropriate       under   the     PCRA.     See    generally

Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011)

(discussing this Court’s right to address an appellant’s lack of counsel sua

sponte in a PCRA matter).

         Order vacated.       Remanded for proceedings consistent with this

Memorandum. Jurisdiction relinquished.

____________________________________________


7 To the extent that Alexandre raises claims concerning an ambiguity in the
Sentencing Order, and the delay in conducting his Gagnon II hearing, such
claims are waived, as he failed to raise them in his Petition. See Pa.R.A.P.
302(a) (providing that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/19




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