J-S25027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ANDRE B. HERRING                           :
                                               :
                      Appellant                :   No. 2041 EDA 2016

             Appeal from the Judgment of Sentence July 23, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012419-2009,
              CP-51-CR-0012797-2009, CP-51-CR-0015763-2009


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOT, P.J.E.

MEMORANDUM BY RANSOM, J.:                                    FILED JULY 19, 2017

        Appellant, Andre B. Herring, appeals from the judgment of sentence of

ten to twenty years of imprisonment followed by ten years of probation,

imposed on July 23, 2012, following his open plea to two counts of

burglary,1 one count of attempted burglary,        2
                                                       and one count of conspiracy.3

We affirm.

        The relevant facts and procedural history are as follows:

        Defendant, Andre Herring, has appealed nunc pro tunc from the
        July 23, 2012, order of this [c]ourt imposing judgment of
        sentence. On July 23, 2012, defendant appeared before this
        [c]ourt and entered non-negotiated guilty pleas to various
        charges pursuant, inter alia, to the above bill and term numbers.
____________________________________________


1
    18 Pa.C.S. § 3502
2
    18 Pa.C.S. § 901
3
    18 Pa.C.S. § 903
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       As of CP-51-CR-0012419-2009, defendant pleaded guilty to the
       charge of burglary and received a sentence of ten to twenty-
       years’ incarceration. As of CP-51-CR-0012797-2009, defendant
       pleaded guilty to burglary and received a sentence of ten to
       twenty years’ incarceration, which sentence was ordered to be
       served concurrently with the sentence imposed as of CP-51-CR-
       0012419-2009.        Finally, as of CP-51-CR-00157763-2009,
       defendant pleaded guilty to the charge of attempted burglary
       and received a sentence of two to four years’ incarceration,
       which sentence was ordered to be served concurrently with the
       sentences imposed on the other two charges. When imposing
       [the] sentence, this [c]ourt ordered that defendant should
       receive credit for time served. Defendant filed neither a post-
       sentence motion nor a notice of appeal following the imposition
       of sentence.

       On March 11, 2013, defendant filed a pro se petition under the
       Post-Conviction Relief Act, 42 Pa.C.S. § 9741 et seq. Counsel
       was appointed to represent defendant and on March 27, 2015,
       counsel filed an amended petition requesting that defendant be
       granted the right to file a direct appeal from the judgment of
       sentence nunc pro tunc. On May 26, 2016, this [c]ourt issued
       an order granting defendant the right to file a notice of appeal
       nunc pro tunc from the judgments of sentence and denying him
       the right to file post-sentence motions. Defendant filed notice of
       appeal on June 22, 2016, followed by a court-ordered 1925(b)
       statement.

Trial Court Opinion, 7/21/16, at 1-2.4

       The trial court issued a responsive opinion.      On appeal, Appellant

raises the following issues for review:

       I.     Should [A]ppellant’s sentence be vacated and the case be
              remanded to the Court of Common Pleas with direction
              that Appellant be afforded an opportunity to file a nunc pro
              tunc petition to withdraw his guilty plea?

____________________________________________


4
 The trial court opinion omits any reference to the conspiracy charge,
docketed at CP-51-CR-0012419-2009.



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J-S25027-17


      II.    Should [A]ppellant’s case be remanded to the Court of
             Common Pleas with direction that Appellant be afforded an
             opportunity to file a nunc pro tunc post-sentence motion
             challenging the legality of his sentence?

Appellant’s Brief at 3.

      Appellant’s first claim challenges the validity of his guilty plea.

Appellant does not dispute that he failed to file timely a post-sentence

motion to withdraw his plea.     However, Appellant asserts that the lower

court failed to advise him that a motion was required in order to preserve his

challenge.   According to Appellant, this failure renders his plea unknowing

and involuntary. Appellant seeks remand so that he may be permitted to file

a petition to withdraw his plea nunc pro tunc.

      Written post-sentence motions shall be filed no later than ten days

after the imposition of sentence. Commonwealth v. Green, 862 A.2d 613

(Pa. Super. 2004); Pa.R.Crim.P. 720(A)(1). Failure to file a post-sentence

motion will result in waiver.   See, e.g., Commonwealth v. Kinney, ---

A.3d ---, *5 (Pa. Super. 2017) (concluding that issues arising from a plea

were waived because the defendant failed to preserve them in a post-

sentence motion).     A PCRA court may reinstate a petitioner’s right to file

post-sentence motions nunc pro tunc, provided the petitioner may plead and

prove “that he was deprived of the right to file and litigate said motions as a

result of the ineffective assistance of counsel.” Commonwealth v. Liston,

977 A.2d 1089, 1094 n.9 (Pa. 2009).




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      In his PCRA petition, Appellant sought only to reinstate his direct

appeal rights nunc pro tunc; he made no request to reinstate his right to file

post-trial motions and thus challenge the validity of his guilty plea.

Appellant’s claim is therefore waived.            See Liston, 977 A.2d at 1094;

Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004) (“Claims not

raised in the PCRA court are waived and cannot be raised for the first time

on appeal in this Court. Pa.R.A.P. 302(a).”).

      Appellant’s next claim is that this case should be remanded to afford

Appellant the opportunity to file a nunc pro tunc motion challenging the

legality of his sentence. Appellant’s Brief at 11. According to Appellant, the

sentencing court failed to properly calculate his time credit. Id.

      Challenges    to     the   legality   of    a   sentence   cannot   be   waived.

Commonwealth v. Dickson, 918 A.2d 95, 98 (Pa. 2007) (“[I]f the

sentence clearly implicates the legality of sentence, whether it was properly

preserved below is of no moment, as a challenge to the legality of sentence

cannot be waived.”).       A challenge to the failure to award credit for time

served prior to sentencing does involve the legality of the sentence and as

such cannot be waived. See Commonwealth v. Beck, 848 A.2d 987, 989

(Pa. Super. 2004) (“An appellant’s challenge to the trial court’s failure to

award credit for time spent in custody prior to sentencing involves the

legality of sentence.”).




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      However, here it appears that Appellant’s contention is with the

computation of his time credit. This Court is not the appropriate venue for

challenging the computation of time.

      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. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014), citing,

Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. Super. 1989).

      The record reflects that Appellant was given credit for time served

from 7/28/09 to 12/9/10 and from 7/1/11 to 7/23/12.         Open Guilty Plea,

7/23/12 at 1; Notes of Testimony, Sentencing 7/23/12 at 21-22. It appears

that the trial court gave Appellant all of the time credit he requested. Id.

Thus, Appellant’s characterization that he challenges the legality of his

sentence is inaccurate, and this Court is not the proper venue to address

Appellant’s miscalculation claims.

      Judgment of sentence affirmed.




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J-S25027-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




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