J-S67041-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
ERIC ROSARIO,                             :
                                          :
                  Appellant               :   No. 825 EDA 2018

                      Appeal from the Order January 31, 2018,
                  in the Court of Common Pleas of Lehigh County,
               Criminal Division, at No(s): CP-39-CR-0000549-2015
                                            CP-39-CR-0002257-2010

BEFORE:        OTT, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 04, 2019

      Eric Rosario (Appellant) appeals pro se from the January 31, 2018

order denying his request for clarification of sentence. We vacate the trial

court’s order and remand with instructions.

      On November 7, 2012, at docket number CP-39-CR-0002257-2010

(docket number 2257-2010), Appellant pleaded guilty to one count of

possession with the intent to deliver a controlled substance and one count of

conspiracy. That same day, Appellant was sentenced to four to fifteen years’

incarceration.     Appellant filed a motion for reconsideration of sentence,

which the trial court denied. No direct appeal was filed.

      On November 17, 2015, at docket number CP-39-CR-0000549-2015

(docket number 549-2015), Appellant pleaded guilty to assault by a prisoner

and was immediately sentenced to two to four years’ incarceration to run


*Retired Senior Judge assigned to the Superior Court.
J-S67041-18

consecutively to any other sentence Appellant was currently serving. Thus,

Appellant’s   sentence   at     docket   number     549-2015   would   be   served

consecutively to his sentence at docket number 2257-2010. Appellant did

not file a post-sentence motion or direct appeal.

      The next filing by Appellant at the aforementioned docket numbers

was a letter1 on December 26, 2017.            Therein, Appellant averred that

instead of his sentences at docket numbers 2257-2010 and 549-2015

running consecutively, the Department of Corrections (“DOC”) erroneously

“combined” his sentences, resulting in a new sentence of 6 to 19 years’

incarceration.     Letter Requesting Clarification of Sentence, 12/26/2017.

Thus, he requested the trial court clarify his sentence.

      On January 31, 2018, the trial court denied Appellant’s motion,

concluding that Appellant “is serving consecutive sentences and aggregation

was   required.”       Order,     1/31/2018,   at    n.1,   citing   Gillespie   v.

Commonwealth, Dept. of Corr., 527 A.2d 1061 (Pa. Cmwlth. 1987).

Therefore, the trial court opined that Appellant’s “resulting sentence is 6

years to 19 years.” Id.         Appellant timely filed a notice of appeal.2 Both



1
 The trial court construed this letter as a motion for clarification of sentence
(“motion”).
2
  The record contains two notices of appeal, both appealing the trial court’s
January 31, 2018 order denying Appellant’s motion. See Notice of Appeal,
2/23/2018; Notice of Appeal, 3/2/2018.           These notices of appeal are
materially similar. Id. While the latter notice of appeal was filed more than
thirty days after the trial court’s order, Appellant’s February 23, 2018 notice
of appeal was timely filed. Upon the issuance of a rule to show cause by this

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Appellant and the trial court complied with Pa.R.A.P. 1925.          On appeal,

Appellant contends the trial court erred in denying his motion. Appellant’s

Brief at 3.

      Initially, we note that, while “all motions filed after a judgment of

sentence is final are to be construed as PCRA petitions,” Commonwealth v.

Taylor, 65 A.3d 462, 466 (Pa. Super. 2013), an allegation of error by the

DOC in failing to comply with a court’s sentencing order is not cognizable

under the PCRA.        Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa.

Super. 2014). See also 42 Pa.C.S. § 761(a)(1) (“The Commonwealth Court

shall have original jurisdiction of all civil actions or proceedings ... [a]gainst

the Commonwealth government, including any officer thereof, acting in his

official capacity ...”).

       As this Court has expounded,

      [i]f 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 [of Pennsylvania] 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


Court, inquiring why this appeal should not be quashed as untimely filed,
Appellant filed a response. Order, 5/16/2018; Appellant’s Response to Rule
to Show Cause, 5/29/2018. Appellant did not address why he had filed two
notices of appeal. Id. Instead, Appellant directed this Court to the docket,
which indicated that his February 23, 2018 notice of appeal was timely filed.
Id. On May 30, 2018, an order was issued discharging the rule to show
cause and referring this issue to this panel. Upon review, for the purposes
of our review, we conclude that the February 23, 2018 notice of appeal was
timely filed, providing this Court jurisdiction to entertain this appeal.



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     trial court, then a writ of habeas corpus ad subjiciendum lies to
     the trial court for clarification and/or correction of the sentence
     imposed.

Heredia, 97 A.3d at 395 (quoting Commonwealth v. Perry, 563 A.2d 511,

512-13 (Pa. Super. 1989). This Court further explained that

     the Commonwealth Court has held that, where an inmate’s
     petition did not challenge the trial court’s sentencing order, and
     instead challenged only the governmental actions of the clerk of
     court and corrections officials in the wake of that sentencing
     order (including clerk’s generation of commitment form
     inconsistent with sentencing order), the trial court lacked
     jurisdiction over the matter, and the petition was properly filed
     in the Commonwealth Court. See Spotz v. Commonwealth,
     972 A.2d 125, 134 (Pa. Cmwlth. 2009); see also
     Commonwealth ex rel. Powell v. Pennsylvania Dept. of
     Corrections, 14 A.3d 912, 915 (Pa. Cmwlth. 2011) (concluding
     that, where petitioner does not challenge underlying sentence
     and instead seeks to compel DOC to carry out sentence imposed,
     petition is properly filed in Commonwealth Court).

           Although the decisions of the Commonwealth Court are not
     binding on this Court, we may look to them for their persuasive
     value. See Commonwealth v. Rodriguez, 81 A.3d 103, 107
     n.7 (Pa.Super.2013) [].

Id. at 395 n.4.

     The crux of Appellant’s claim is that the DOC erred in computing his

sentence.   He claims that the DOC “combined” his sentences at the

aforementioned docket numbers, which resulted in a new sentence.

Appellant’s Letter Requesting Clarification of Sentence, 12/26/2017. Based

on the foregoing, Appellant should have filed his motion through an action in

the Commonwealth Court’s original jurisdiction, see Heredia, supra,




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which Appellant now acknowledges on appeal.3           See Appellant’s Brief at 1

(contending the trial court should have transferred his motion to the

Commonwealth Court instead of denying Appellant’s motion); id. at 2

(“[T]he appropriate relief would be to transfer this matter to the proper

tribunal of this Commonwealth[,] which would be the Commonwealth Court.

Not common pleas court.”) (unnecessary capitalization omitted).          Thus, the

proper action for the trial court would have been to transfer Appellant’s

motion to the Commonwealth Court. See 42 Pa.C.S. § 5103(a);4 McNair v.


3 In its brief to this Court, the Commonwealth argues Appellant has waived
any issue related to the trial court’s failure to transfer Appellant’s motion to
the Commonwealth Court because Appellant failed to raise this issue in his
concise statement. Commonwealth’s Brief at 6. See Commonwealth v.
Berry, 877 A.2d 479, 485 (Pa. Super. 2005) (“[I]ssues which are not raised
in a [concise statement] under Pa.R.A.P. 1925 are waived on appeal”).
However, our review of the record reveals Appellant raised two claims of trial
court error in his concise statement, including that the trial court “erred in
denying [Appellant’s] motion for clarification of sentence.”            Concise
Statement, 3/27/2018 (unnecessary capitalization omitted). For the reasons
set forth in this memorandum, we agree with Appellant that the trial court
erred in denying Appellant’s motion; the proper action was to transfer this
matter to the Commonwealth Court. Because we find Appellant’s concise
statement encompasses the issue before us, we decline to find waiver.

4
    Subsection 5103(a) of the Judicial Code provides:

        (a) General rule.--If an appeal or other matter is taken to or
        brought in a court or magisterial district of this Commonwealth
        which does not have jurisdiction of the appeal or other matter,
        the court or magisterial district judge shall not quash such
        appeal or dismiss the matter, but shall transfer the record
        thereof to the proper tribunal of this Commonwealth, where the
        appeal or other matter shall be treated as if originally filed in the
        transferee tribunal on the date when the appeal or other matter
        was first filed in a court or magisterial district of this
        Commonwealth.       A matter which is within the exclusive

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J-S67041-18

Owens, 576 A.2d 95 (Pa. Cmwlth. 1990) (holding that where a prisoner

seeks relief for a claim of incorrect calculation by the DOC, it is an action in

the Commonwealth Court’s original jurisdiction and thus, trial court should

not have dismissed petition, but rather transferred matter to Commonwealth

Court). Accordingly, we vacate the trial court’s order and remand the case

to the trial court to transfer Appellant’s motion for clarification to the

Commonwealth Court.

      Order vacated.      Case remanded with instructions.          Jurisdiction

relinquished.

      Judge Ott joins this memorandum.

      Judge Nichols concurs in the result.




      jurisdiction of a court or magisterial district judge of this
      Commonwealth but which is commenced in any other tribunal of
      this Commonwealth shall be transferred by the other tribunal to
      the proper court or magisterial district of this Commonwealth
      where it shall be treated as if originally filed in the transferee
      court or magisterial district of this Commonwealth on the date
      when first filed in the other tribunal.

42 Pa.C.S. § 5103.



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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 1/4/19




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