J. S48017/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                  v.                    :
                                        :
SHAWN ALAN BRACKEN                      :
         Appellant                      :
                                        :     No. 1373 WDA 2015

                   Appeal from the Order August 18, 2015
           In the Court of Common Pleas of Westmoreland County
              Criminal Division No(s): CP-65-CR-0000730-2012


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

JUDGMENT ORDER BY DUBOW, J.:                 FILED SEPTEMBER 15, 2016

      Appellant, Shawn Alan Bracken, appeals from the August 18, 2015

Order denying his second Petition for Credit for House Arrest Nunc Pro Tunc

as untimely.     Upon review, we reverse and remand the case with

instructions for the trial court to consider the petition under the Post

Conviction Relief Act (PCRA).

      A detailed factual and procedural history is unnecessary to our

disposition.   Therefore, we summarize the relevant procedural history as

follows: On August 8, 2014, Appellant pled guilty to charges arising from

Appellant’s sexual abuse of his minor daughter. Appellant waived his right

to have his Sexually Violent Predator hearing conducted prior to sentencing,

and Appellant was sentenced that same day.           Pursuant to his plea

agreement with the Commonwealth, the trial court sentenced Appellant to
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three to six years of incarceration and an additional five years of probation.

Appellant was not given credit for time served on house arrest, and began

serving his term of imprisonment on August 11, 2014.

      On June 25, 2015, Appellant filed a Petition for Credit for House Arrest

Nunc Pro Tunc, which the trial court denied on August 18, 2015. The trial

court denied the petition on the grounds that the petition was untimely and

that there were no “specific allegations of a break down in the court

operation or allegations of fraud which would have permitted [Appellant] to

proceed Nunc Pro Tunc.” Trial Court Opinion, filed 2/25/16, at 3.

      Appellant timely appealed, raising the following issue:

      Whether the Court of Common Pleas abused its discretion in
      denying Appellant’s motion for credit for house arrest, nunc pro
      tunc, despite the severe restrictions placed on his movement
      tantamount to custody.

Appellant’s Brief at 2.

      Appellant’s Petition for Credit for House Arrest Nunc Pro Tunc, filed

more than ten months after he was sentenced by the trial court, was clearly

untimely.   See Pa.R.Crim.P. 720.      However, courts should construe an

untimely post-sentence motion as a petition for relief under the PCRA if the

motion raises a claim that is cognizable under the PCRA. Commonwealth

v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001) (“[A]ny collateral petition

raising issues with respect to remedies offered under the PCRA will be

considered a PCRA petition.”).




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      A claim that the trial court failed to award credit for time served prior

to sentencing is a proper challenge to the legality of the sentence.

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). As

such, it is cognizable under the PCRA. Commonwealth v. Diamond, 546

A.2d 628, 631 n.3 (Pa. Super. 1988).       The trial court therefore erred in

denying the petition as untimely without considering the merits of

Appellant’s claim. See Commonwealth v. Davis, 852 A.2d 392, 399-400

(Pa. Super. 2004) (concluding that trial court erred in denying petition for

time credit as untimely post-sentence motion, where it should have been

considered in the nature of a timely-filed PCRA petition).

      In light of the foregoing, we reverse the trial court’s denial of

Appellant’s petition as untimely, and remand for the trial court to treat and

review the motion as a PCRA petition.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2016




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