J-S04012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
JULIO PAGAN                             :
                                        :
                  Appellant             :   No. 1179 MDA 2017

                Appeal from the PCRA Order June 26, 2017
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0001182-2015


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 01, 2018

     Julio Pagan (“Appellant”) appeals from the June 26, 2017 denial of his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.

     The PCRA court set forth the following factual and procedural history:

           On July 27, 2015, [Appellant] was charged in this matter
     with eight (8) counts of Violation of the Controlled Substance,
     Drug, Device and Cosmetic Act for possession of various
     controlled substances, including the following: heroin, cocaine,
     crack cocaine, suboxone, marijuana; plus, twenty-nine glassine
     bags, six knotted sandwich bags, three suboxone films, a digital
     scale, and a smoking pipe.

            [Appellant] pled guilty to the crimes cited above pursuant
     to a plea agreement, which called for him to serve two (2) to
     five (5) years in a State Correctional Facility. On April 20, 2016,
     [the trial court] sentenced [Appellant] in accordance with
     [Appellant’s] plea agreement. In addition, [the trial court] also
     declared [Appellant] to be RRRI eligible and designated his RRRI
     minimum at eighteen (18) months.
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           On May 5, 2016, [Appellant] filed a petition for relief under
     the [PCRA]. The sole issue raised dealt with time credit in
     [Appellant’s] first PCRA petition. On June 29, 2016, [the PCRA
     court] [o]rdered [Appellant’s] court-appointed counsel to work
     with the Commonwealth regarding the calculation of time credit.
     Thereafter, on July 25, 2016, [Appellant] withdrew his Petition.

          [Appellant] then filed a second          PCRA    Petition   on
     December 5, 2016, alleging the following:

           1)    His guilty plea was unknowing and involuntary;

           2)   His counsel was ineffective for failure to ensure
           he had an opportunity to withdraw his guilty plea;

           3)    He was deprived of due process; and

           4)    His sentence did not include credit for the time
           he spent incarcerated prior to his sentencing, which
           he claims was part of [his] plea agreement.

            On March 17, 2017, upon consideration of [Appellant’s]
     second Petition, [the PCRA court] deemed [Appellant’s] time
     credit issue to have been waived, given that the issue of time
     credit was raised and addressed within [Appellant’s] initial PCRA
     Petition, and given that said PCRA Petition was withdrawn.
     However, as [Appellant’s] second PCRA Petition was timely and
     raised claims which were not addressed in his first Petition, the
     [PCRA court] held a hearing on June 22, 2017.

           After the hearing, [the PCRA Court] issued the following
     findings:

           1)   [Appellant] did spend time in prison prior to his
           sentencing, but that time was triggered by another
           docket unrelated to the one now before the Court.

           2)      The parties never reached a plea agreement
           calling for [Appellant] to receive pretrial concurrent
           time. The plea agreement was stated in open court
           to be “two to five years in a State Correctional
           facility.”   Therefore, at the time of sentencing,
           [Appellant] received a sentence of two to five years
           as appropriate.

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              3)    The written guilty plea form executed by
              [Appellant] also articulates . . . the plea agreement
              at “two to five years” and similarly makes no
              reference of pretrial concurrent time.

              4)    [Appellant] entered a plea of guilty in open
              court on February 17, 2016. At the time of his plea,
              [Appellant’s] plea agreement of “two to five years”
              was articulated verbally on the record.

              5)    [The PCRA court] found [Appellant’s] guilty
              plea counsel to be credible.

              6)    There were no credible allegations              of
              ineffectiveness presented by [Appellant].

        In addition to the above findings, [the PCRA court] addressed
        the waived time credit issue raised by [Appellant] and cited that
        the State Bureau of Corrections calculated [Appellant’s] sentence
        in accordance with the Court’s Sentencing Order directive, which
        specifically stated: [Appellant] shall be entitled to time credit for
        all the time he/she spent incarcerated solely as the result of this
        offense. However, he/she shall not be entitled to credit for any
        time spent in prison on any other matter.

PCRA Court Opinion, 8/17/17, 2–4 (footnotes omitted).               Following the

hearing, the PCRA court denied Appellant’s PCRA petition. Order, 6/26/17,

at 3.    Appellant filed his timely notice of appeal to this Court on July 20,

2017.1



____________________________________________


1  Although an error in the computation of sentence by the Bureau of
Corrections is properly redressed by an original action in the Commonwealth
Court, challenges to the legality of sentence and to the trial court’s failure to
award credit for time served as required by the law are cognizable under the
PCRA. See Commonwealth v. Wyatt, 115 A.3d 876, 879 (Pa. Super.
2015).



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       Appellant sets forth a single question for our review:

       1.     Did the Court of Common Pleas of Lebanon County err or
              abuse its [discretion] in denying [Appellant’s] Post
              Conviction Relief Act Petition?

Appellant’s Brief at 7.2

       Our standard of review of a denial of PCRA relief is well settled. “In

conducting review of a PCRA matter, we consider the record in the light most

favorable to the prevailing party at the PCRA level.”      Commonwealth v.

Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (citations and internal

punctuation omitted). Our review is limited to the findings of the PCRA court

and the evidence of record.          Commonwealth v. Rykard, 55 A.3d 1177,

1183 (Pa. Super. 2012). Further, “[w]e will not disturb a PCRA court’s ruling

____________________________________________


2   At the outset, we note with displeasure that Appellant’s counseled brief
fails to conform to a number of rules of appellate procedure. Specifically,
Appellant failed to append the trial court opinion to his brief as required by
Pa.R.A.P. 2111(b). He also failed to include an averment that the PCRA
court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, as required by Pa.R.A.P. 2111(d).            Further,
Appellant has failed to include a transcript of the June 22, 2017 PCRA
hearing in the record and has failed to account for its absence, as required
by Pa.R.A.P. 1923, Statement in Absence of Transcript.            Additionally,
Appellant failed to append any of the documents listed in the appendix to his
brief, namely an undated “Letter from Lebanon County Deputy Clerk of
Courts” and an undated “Letter from Pennsylvania Department of
Corrections.” Finally, we note that one page appears to be missing from the
Argument section of Appellant’s brief. Appellant’s Brief at 11–13. We
obtained a copy of the missing page. Despite the significant defects in
Appellant’s brief, we will address Appellant’s arguments.                 See
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005)
(addressing Appellant’s issues despite the shortcomings in the appellate
brief).



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if it is supported by evidence of record and is free of legal error.” Id. This

Court may affirm the PCRA court on any basis.            Id.   “We grant great

deference to the factual findings of the PCRA court and will not disturb those

findings unless they have no support in the record.”           Id.   “Where the

petitioner raises questions of law, our standard of review is de novo and our

scope of review is plenary.”    Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa. Super. 2014).

      Before we address the merits of Appellant’s claim, we must determine

the impact that his first, withdrawn PCRA petition has on the instant petition.

“Where an Appellant has voluntarily withdrawn a previous post-conviction

petition, and then files a subsequent post-conviction petition, the second will

be dismissed unless the withdrawal of the first petition was not intelligent.”

Commonwealth v. Shaffer, 569 A.2d 360, 362 (Pa. Super. 1990).                See

also 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an issue is

waived if the petitioner could have raised it but failed to do so before trial, at

trial, during unitary review, on appeal or in a prior state postconviction

proceeding.”).

      In his first PCRA petition, which was filed pro se, Appellant alleged that

he was in custody on June 12, 2015, through April 16, 2016, and should

have received credit for that time served. PCRA Petition, 5/5/16, at 3. He

further alleged that his trial counsel was ineffective for failing to argue that

he was entitled to 313 days credit for time served. Id. On June 29, 2016,


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the PCRA court ordered counsel for Appellant and counsel for the

Commonwealth to reach a stipulation regarding the status of the 313 days to

which Appellant claimed he was entitled credit, and granted leave for each

party to brief the issue after the stipulation was prepared. Order, 6/29/16,

at 1–2.   Despite the PCRA court’s order, there is nothing in the record or on

the docket evincing any stipulation regarding the credit Appellant was due

for the 313 days served.

      Thereafter, on July 25, 2016, Appellant filed a counseled petition to

withdraw his first PCRA petition.      Petition to Withdraw PCRA Petition,

7/25/16. Appellant’s petition to withdraw states that after thorough review

with counsel, Appellant “stated that he wanted to withdraw said petition.”

Id. at ¶ 3.     Further, Appellant represented that he “understands the

consequences of withdrawal and consents to a withdrawal of his appeal.”

Id. at ¶ 4.      Moreover, Appellant signed a verification in which he

acknowledged that the statements made in the petition to withdraw were

true and correct. Id., Exhibit A. The trial court granted Appellant’s petition

to withdraw his PCRA petition on July 27, 2016.

      Appellant filed a second, timely, pro se PCRA petition on December 5,

2016. In that petition, he argued that the Department of Corrections erred

when it refused to award him credit for time served.          PCRA petition,

12/2/16, at 3. He further alleged that “the Lebanon County prison, the clerk

of court, and the district attorney assured [him] that the time in question


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‘has been’ credited to the sentence imposed in this matter.”            Id. at 4.

Appellant also alleged that his counsel was ineffective for “failing to ensure

[Appellant] had an opportunity to withdraw [his] guilty plea after sentencing

judge sentenced [him] outside of the negotiated plea agreement. . . .” Id.3

Appellant ultimately sought to have his sentence corrected. Id. at 6. The

PCRA court appointed counsel for Appellant and held a hearing on June 22,

2017. Following the hearing, the PCRA court denied Appellant’s petition.

       In its opinion, the PCRA court found that, “upon consideration of

[Appellant’s] second Petition, we deemed [Appellant’s] time credit issue to

have been waived, given that the issue of time credit was raised and

addressed within the [Appellant’s] initial PCRA petition, and given that said

PCRA petition was withdrawn.”                  PCRA Court Opinion, 8/17/17, at 3.

We agree.

       Indeed, although on appeal, Appellant baldly asserts that he withdrew

his petition because he incorrectly believed that proper credit would be or

had been applied to his sentence, it is uncontroverted that Appellant

voluntarily withdrew his PCRA petition after thorough review with his counsel



____________________________________________


3 There is no discussion or analysis of any alleged ineffectiveness of counsel
in his brief to this Court. Thus, we find Appellant has abandoned the
ineffective assistance of counsel argument contained in his second PCRA
Petition. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super.
2008).



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and with knowledge of the attendant consequences.4 See infra. Thus, his

withdrawal was intelligent and Appellant has waived any argument relating

to the credit for time served. See Shaffer, 569 A.2d at 362.

       Even if we were to reach the merits of Appellant’s appeal, we would

affirm the PCRA court’s order. The April 20, 2016 sentencing order in this

case contains the following unambiguous language: “The Defendant shall be

entitled to credit for all the time he/she spent incarcerated solely as a result

of this offense. However, he/she shall not be entitled to credit for any time

spent in prison on any other matter.” Sentencing Order, 4/20/16, at 5. The

time Appellant served prior to his guilty plea in this case was “triggered by

another docket unrelated to the one now before the [c]ourt].” PCRA Court

Opinion, 8/17/17, at 3.           The PCRA court further noted that the plea

agreement entered into by the parties did not contain a provision calling for

Appellant to receive pretrial concurrent time.              Id.        Indeed, the plea

agreement occurred in open court and contained the following colloquy:

       THE COURT:                        Is there a plea agreement?

       [APPELLANT’S       COUNSEL]:       Two-to-five years       in    the   state
                                         correctional facility.


____________________________________________


4  In his brief, Appellant specifically alleges that he withdrew his first petition
“after being assured by his prior counsel that the 313 days were
appropriately applied” and that Appellant “was assured by prior counsel that
this credit would be applied to the sentence at issue in this matter.”
Appellant’s Brief at 13.



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       THE COURT:                        Mr. Pagan, do you understand and
                                         do    you   accept   your    plea
                                         agreement?

       APPELLANT:                        Yes, your honor.

Notes of Testimony (“N.T.”), Guilty Plea, 2/17/16, at 3. Similarly, the record

at Appellant’s sentencing is devoid of any discussion of credit for time served

in the plea agreement or otherwise. N.T., Sentencing, 4/20/16.

       On appeal, Appellant’s entire argument is based upon his averments

alone. Indeed, he “avers that his negotiated plea agreement included credit

for the 313 days at issue in this matter.” Appellant’s Brief at 13. He “avers”

he was told by his plea counsel and the clerk of courts that he would receive

313 days credit for time served. Id. He “avers” he was told by prior PCRA

counsel that he would receive the credit and that is why he withdrew his

prior PCRA petition. Id. Appellant provides no evidence in support of these

allegations.5

       Moreover, his claims are directly contradicted by the PCRA court in its

opinion. The court held a hearing on Appellant’s second PCRA petition and

issued findings which included the fact that the parties “never reached a plea

agreement for [Appellant] to receive pretrial concurrent time.               The
____________________________________________


5  In the Statement of the Case portion of his brief, Appellant cites to two
letters, one from the Deputy Clerk of Courts and one from the Pennsylvania
Department of Corrections, in which he allegedly was informed that he was
entitled to credit for the 313 days served. Although Appellant claims to have
appended the letters as Exhibits B and C to his brief, there are no such
appendices.



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agreement was stated to be ‘two to five years in a state correctional facility.’

Therefore, at the time of sentencing, [Appellant] received a sentence of two

to five years as appropriate.” PCRA Court Opinion, 8/17/17, at 4. The PCRA

court further found Appellant’s plea counsel to be credible.6       Finally, the

PCRA court noted:

             Here, [Appellant] was unable to establish any credible
       evidence to support his bald allegation of ineffective assistance
       of counsel during his guilty plea or sentencing, nor was there a
       showing that [Appellant’s] guilty plea in open court was
       involuntary. In addition, it is clear that [the sentencing court]
       sentenced [Appellant] in accordance with his plea agreement.

Id. at 6. We will not disturb the PCRA court’s credibility determinations as

they relate to Appellant and his trial/PCRA counsel.      Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011) (The PCRA Court’s credibility

determinations, when supported by the record, are binding. . . .”). To the

extent that the record is available to us, it wholly supports the PCRA court’s

determinations, and Appellant has failed to show any error on behalf of the

PCRA court in its denial of his PCRA petition.

       Order affirmed.



____________________________________________


6  Although this Court attempted to obtain a copy of the video or transcript
of Appellant’s June 22, 2017 PCRA hearing we were unable to do so. Thus,
we are limited in our ability to determine error on the part of the PCRA
court. It is undisputed that “the ultimate responsibility of ensuring that the
transmitted record is complete rests squarely upon the appellant and not
upon the trial court.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.
Super. 2006) (citing Pa.R.A.P. 1931).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/01/2018




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