J-S69040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EDWARD HAMMOND                             :
                                               :
                      Appellant                :   No. 890 WDA 2017

                   Appeal from the PCRA Order April 24, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003107-2014


BEFORE:      BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED DECEMBER 12, 2017

        Appellant Edward Hammond appeals from the order of the Court of

Common Pleas of Allegheny County denying his petition pursuant to the Post

Conviction Relief Act (“PCRA”)1 without a hearing. Counsel has filed a

petition to withdraw and a no-merit letter.         We grant counsel’s petition to

withdraw and affirm the PCRA court’s order.

        On February 28, 2012, in a previous criminal case (docket CP-02-

0007923-2009), Appellant was sentenced to 3½ to 7 years’ imprisonment

for charges of Receiving Stolen Property (RSP) and Recklessly Endangering

Another Person (REAP). The sentencing order at this docket indicates that




____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant was given 812 days credit for time served. Appellant was paroled

at an unspecified date.

       On November 7, 2013, Appellant, while on parole, was placed under

arrest and subsequently charged in the instant case (at docket CP-02-CR-

0003107-2014) for two violations of the Uniform Firearms Act.2          After a

stipulated bench trial was held on July 31, 2014, the trial court convicted

Appellant of both charges. Sentencing was deferred for the preparation of a

presentence report.         On October 23, 2014, the trial court sentenced

Appellant to an aggregate term of three to seven years’ imprisonment. The

sentencing order states that Appellant’s sentence “shall commence on

10/23/14.”     Order, 10/23/17.       On March 2, 2016, this Court affirmed the

judgment of sentence. On September 28, 2016, the Supreme Court denied

Appellant’s petition for allowance of appeal.

       As previously noted, Appellant committed the instant offenses while he

was on parole for charges at CC No. 7923-2009. Thus, the instant charges

served as the basis for the revocation of Appellant’s parole on the prior

docket.    Appellant was returned to custody on the matter on that docket

(7923-2009) when he was sentenced in this case on October 23, 2014.

Appellant was reparoled on December 9, 2016.



____________________________________________


2
 18 Pa.C.S.A. §§ 6106 (firearms not to be carried without a license) (F3),
6105 (persons not to possess firearms) (M1).



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      During the pendency of this case on direct appeal, Appellant filed a pro

se document on March 2, 2016, claiming he was denied proper credit for

time served. The lower court characterized the filing as a PCRA petition and

appointed Atty. Jill Sinatra to assist Appellant. On February 24, 2017, Atty.

Sinatra filed an amended PCRA petition of Appellant’s behalf. On March 28,

2017, the PCRA court filed notice of its intent to dismiss the petition without

a hearing pursuant to Pa.R.Crim.P. 907. On April 25, 2017, the PCRA court

dismissed the petition.

      On May 23, 2017, Appellant filed a pro se notice of appeal along with a

request for counsel.      On May 25, 2017, Atty. Sinatra filed a motion to

withdraw her appearance. The PCRA court granted Atty. Sinatra’s motion,

appointed Joseph P. Rewis, Esq., and directed Appellant to file a concise

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

On July 6, 2017, Atty. Rewis filed a Statement of Intent to file an

Anders/McClendon Brief in Lieu of a 1925(b) statement.

      Before we proceed to review the merits of Appellant’s PCRA petition,

we must evaluate counsel’s petition to withdraw his representation:

      Counsel petitioning to withdraw from PCRA representation must
      proceed ... under [Commonwealth v. Turner, 518 Pa. 491,
      544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d
      213 (Pa.Super. 1988)] and ... must review the case zealously.
      Turner/Finley counsel must then submit a “no-merit” letter to
      the trial court, or brief on appeal to this Court, detailing the
      nature and extent of counsel's diligent review of the case, listing
      the issues which petitioner wants to have reviewed, explaining
      why and how those issues lack merit, and requesting permission
      to withdraw.


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     Counsel must also send to the petitioner: (1) a copy of the “no
     merit” letter/brief; (2) a copy of counsel's petition to withdraw;
     and (3) a statement advising petitioner of the right to proceed
     pro se or by new counsel.

     Where counsel submits a petition and no-merit letter that ...
     satisfy the technical demands of Turner/Finley, the court —
     trial court or this Court — must then conduct its own review of
     the merits of the case. If the court agrees with counsel that the
     claims are without merit, the court will permit counsel to
     withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).

     We note that defense counsel has filed his petition to withdraw on the

basis of frivolity pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 161, 978 A.2d 349, 351 (2009). Although Anders briefs are filed by

counsel who wish to withdraw on direct review, we will accept counsel’s

Anders brief in lieu of a Turner-Finley letter, as an Anders brief provides

greater protection to criminal defendants.        See Commonwealth v.

Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004).

     After reviewing the record and counsel’s petition to withdraw, we find

that PCRA appellate counsel has complied with the technical requirements of

Turner and Finley, supra. In his appellate brief, PCRA appellate counsel

detailed the nature and extent of his review, listed the issue that Appellant

raised in his petition, and explained why he believed the claim was frivolous.

Counsel indicated that after his own independent review of the record, he

could not identify any meritorious issues that he could raise on Appellant’s


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behalf.   Moreover, counsel attached his letter to Appellant specifically

indicating that he believed that the appeal was wholly frivolous for the

reasons set forth in his brief and notifying him of his right to raise additional

points for consideration by proceeding pro se or with the assistance of

privately retained counsel. See Commonwealth v. Muzzy, 141 A.3d 509,

511 (Pa.Super. 2016) (citing Commonwealth v. Friend, 896 A.2d 607

(Pa.Super. 2006)).   We may proceed to review Appellant’s PCRA petition.

      As an initial matter, we review whether Appellant’s petition was timely

filed. “The PCRA's timeliness requirements are jurisdictional in nature and a

court may not address the merits of the issues raised if the PCRA petition

was not timely filed.” Commonwealth v. Chester, 163 A.3d 470, 472

(Pa.Super. 2017). As a general rule, any PCRA petition “shall be filed within

one year of the date the judgment becomes final[.]” 42 Pa.C.S.A. §

9545(b)(1). A judgment of sentence becomes final “at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.” Id. § 9545(b)(3).          Moreover, “[a] PCRA

petition may only be filed after an appellant has waived or exhausted his

direct appeal rights.” Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa.

Super. 2000).

      In this case, Appellant filed his initial pro se PCRA petition on March 2,

2016, during the pendency of his direct appeal.         This pro se filing was

prematurely filed as Appellant had not exhausted his direct appeal rights.

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However, the PCRA court did not proceed on the merits of the petition, but

appointed counsel to assist Appellant in the filing of an amended petition.

Thereafter, the Supreme Court denied Appellant’s petition for allowance of

appeal on September 28, 2016. Appellant’s judgment of sentence became

final on December 27, 2016, after the expiration of the ninety-day period in

which he was allowed to seek review in the U.S. Supreme Court. See U.S.

Sup.Ct. R. 13(1) (stating “a petition for a writ of certiorari to review a

judgment in any case ... is timely when it is filed with the Clerk of this Court

within 90 days after entry of the judgment”). Appellant’s amended petition,

filed with the assistance of counsel on February 24, 2017, was timely filed

within one year of the date his judgment of sentence became final.

      When reviewing the denial of a PCRA petition, we are guided by the

following standard:

      The standard of review for an order denying post-conviction
      relief is limited to whether the record supports the PCRA court's
      determination, and whether that decision is free of legal error.
      The PCRA court's findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations

omitted). Section 9542 of the PCRA provides the following:

             This subchapter provides for an action by which persons
      convicted of crimes they did not commit and persons serving
      illegal sentences may obtain collateral relief. The action
      established in this subchapter shall be the sole means of
      obtaining collateral relief and encompasses all other common law
      and statutory remedies for the same purpose that exist when
      this subchapter takes effect, including habeas corpus and coram
      nobis. This subchapter is not intended to limit the availability of


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      remedies in the trial court or on direct appeal from the judgment
      of sentence, to provide a means for raising issues waived in prior
      proceedings or to provide relief from collateral consequences of a
      criminal conviction. Except as specifically provided otherwise, all
      provisions of this subchapter shall apply to capital and noncapital
      cases.

Pa.C.S.A. § 9542. As a result, our courts further clarified that if the PCRA

offers a remedy for an appellant's claim, it is the sole avenue of relief and

the PCRA time limitations apply. Commonwealth v. Wyatt, 115 A.3d 876,

879 (Pa.Super. 2015).

      The sole issue that Appellant raised in his PCRA petition was his claim

that he was denied appropriate credit for time served.         This Court has

discussed several different mechanisms that a defendant can employ to raise

a claim regarding credit for time served:

      If the alleged error is thought to be the result of an erroneous
      computation of sentence by the Bureau of Corrections, then the
      appropriate vehicle for redress would be an original action in the
      Commonwealth Court challenging the Bureau'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. Wyatt, 115 A.3d 876, 879 (Pa.Super. 2015) (quoting

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

Commonwealth v. Perry, 563 A.2d 511 (Pa.Super. 1989))).




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      In this case, Appellant argues that he is entitled to credit for time

served from the date of his arrest for the instant charges on November 7,

2013 to his sentencing on October 23, 2014 (350 days).                 In addition,

Appellant argues that, as the trial court’s sentencing order indicated that the

sentence in this case “shall commence on 10/23/14,” Department of

Corrections   (DOC)   documentation     incorrectly   states    that    Appellant’s

sentence in this case did not start until December 10, 2016.            Sentencing

order, 10/23/14, at 1.

      To the extent that Appellant is claiming that the trial court imposed an

illegal sentence in failing to grant him credit for time served, this claim is

cognizable under the PCRA.        See Wyatt, supra.            Nevertheless, this

argument is meritless.     As the instant charges served as violations of

Appellant’s parole, he was required to serve the entire remainder of his back

time on his original sentence before he could commence his new sentence in

this case.

      Section 6138 of the Parole Act states in pertinent part:

      § 6138. Violation of terms of parole
                                   ***
      (5) If a new sentence is imposed on the parolee, the service of
      the balance of the term originally imposed by a Pennsylvania
      court shall precede the commencement of the new term imposed
      in the following cases:

      (i) If a person is paroled from a State correctional institution and
      the new sentence imposed on the person is to be served in the
      State correctional institution.




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61 Pa.C.S.A. § 6138(a)(5)(i). This Court has clarified that “where a state

parolee gets a new state sentence, he must serve his backtime first before

commencement of the new state sentence.           Imposition of a new state

sentence concurrent with parolee's backtime on the original state sentence is

an illegal sentence under this statute.”    Commonwealth v. Kelley, 136

A.3d 1007, 1013–14 (Pa.Super. 2016) (citation omitted).

      In this case, on February 28, 2012, Appellant was originally sentenced

at docket number 7923 of 2009 to 3½ to 7 years’ imprisonment and was

given 812 days credit. As a result, the effective start date of this sentence

was December 9, 2009. As a result, Appellant was first eligible for parole on

June 9, 2013 and his maximum sentence would have been served on

December 9, 2016. Although the date of his actual parole is not of record,

we presume Appellant was on parole when he was arrested on November 7,

2013 for the instant charges listed at docket number 3107 of 2014.

      Although Appellant was incarcerated from his November 7, 2013 arrest

until sentencing on October 23, 2014, he was not entitled to commence his

sentence in this case until he satisfied his backtime left on his original state

sentence. DOC documents in the certified record indicate that Appellant was

reparoled at docket 7923 of 2009 on December 9, 2016.                Therefore,

Appellant’s sentence in this case did not commence until December 10,

2016, after he had served the balance of the original term of incarceration.

See 61 Pa.C.S.A. § 6138(a)(5); Kelley, supra.




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      Moreover, Appellant suggests that this Court should compel the DOC

to calculate his time served as to effectively run his sentence in this case

concurrently to his original state sentence. Specifically, Appellant points to

the sentencing order in this case which indicates that the sentence “shall

commence on 10/23/14,” which was the date Appellant’s sentence was

imposed.   Order, 10/23/14, at 1.      As noted above, the proper vehicle for

Appellant to challenge an erroneous computation of sentence by the Bureau

of   Corrections   would   have   been   to    file   an   original   action   in   the

Commonwealth Court. Kelley, supra.

      However,     we   note   that   “mandamus       is   unavailable   to    compel

performance of an illegal sentencing order. Commonwealth v. Kelley, 136

A.3d 1007, 1014 (Pa.Super. 2016) (quoting Lawrence v. Pennsylvania

Dept. of Corrections, 941 A.2d 70 (Pa. Cmwlth. 2007) (upholding DOC’s

refusal to run a parolee’s new sentence concurrently with his original state

sentence as doing so violates section 6138(a)(5) of the Parole Act)).

      For the foregoing reasons, we affirm the PCRA court’s order denying

Appellant’s petition and grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




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Date: 12/12/2017




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