J-S26004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    JUAN NAVARRO,

                             Appellant                 No. 1025 EDA 2017


              Appeal from the PCRA Order Entered March 24, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0510181-2006


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

MEMORANDUM BY BENDER, P.J.E.:                            FILED JUNE 29, 2018

        Appellant, Juan Navarro, appeals from the post-conviction court’s March

24, 2017 order denying his first petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           Additionally, Appellant’s counsel,

Stephen T. O’Hanlon, Esq., has filed with this Court a petition to withdraw and

a ‘no-merit’ letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). After careful review, we agree with counsel that the issue Appellant

seeks to raise herein is meritless. Therefore, we affirm the order dismissing

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




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      The facts of Appellant’s underlying convictions are not pertinent to our

disposition of his appeal. The PCRA court summarized the procedural history

of Appellant’s case, as follows:

            On April 25, 2011, following a jury trial before the Honorable
      Renee Cardwell Hughes, [Appellant] … was convicted of one count
      of third-degree murder (18 Pa.C.S. § 2502(c)). The [c]ourt
      immediately imposed a sentence of twenty to forty years[’]
      incarceration. Due to the retirement of Judge Hughes, this case
      was reassigned to the undersigned judge for post-trial
      proceedings on July 6, 2011. The [c]ourt denied post-sentence
      motions on August 3, 2011. On November 2, 2012, the Superior
      Court affirmed [Appellant’s] judgment of sentence. [Appellant]
      was represented at trial, sentencing, and on appeal by David
      Rudenstein, Esquire.

             On October 4, 2013, [Appellant] filed a pro se petition under
      the [PCRA]…. [Attorney] O’Hanlon … was appointed to represent
      [Appellant] on August 15, 2014. On August 9, 2015, [Attorney]
      O’Hanlon filed an Amended PCRA Petition (“Amended Petition”).
      On October 29, 2016, [Attorney] O’Hanlon filed a Supplemental
      Amended PCRA Petition (“Supplemental Amended Petition”). On
      January 20, 2017, after reviewing [Appellant’s] Amended Petition,
      Supplemental Amended Petition, and the Commonwealth’s Motion
      to Dismiss, this [c]ourt ruled that the claims set forth in
      [Appellant’s] petitions were without merit. That day, pursuant to
      Pa.R.Crim.P. 907, the [c]ourt issued notice of its intent to dismiss
      the petitions without a hearing (“907 Notice”). On March 24,
      2017, the [c]ourt entered an order dismissing [Appellant’s] PCRA
      petitions.

PCRA Court Opinion (PCO), 6/22/17, at 1-2 (footnote omitted).

      Appellant filed a timely notice of appeal, and the PCRA court ordered

him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. In response, Attorney O’Hanlon filed a Rule 1925(c)(4) statement

indicating his intent to file a petition to withdraw with this Court, but stating

that the issue Appellant sought to raise on appeal was the following:


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       1. The PCRA court erred in dismissing Appellant’s PCRA Petition
          without a hearing because Appellant has not received sufficient
          time credit rendering his present sentence illegal because it is
          above the statutory maximum and the PCRA court had
          jurisdiction to correct the issue pursuant to Commonwealth
          v. Mann, 957 A.2d 746 (Pa. Super. 2008).

Rule 1925(c)(4) Statement, 4/15/17, at 1-2 (footnote omitted). The PCRA

court issued an opinion addressing the above-stated issue on June 22, 2017.

       On September 26, 2017, Attorney O’Hanlon filed with this Court a

petition to withdraw and a Turner/Finley no-merit letter. In Turner, our

Supreme Court “set forth the appropriate procedures for the withdrawal of

court-appointed counsel in collateral attacks on criminal convictions[.]”

Turner, 544 A.2d at 927. The traditional requirements for proper withdrawal

of PCRA counsel, originally set forth in Finley, were updated by this Court in

Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006), abrogated by

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),1 which provides:

       (1) As part of an application to withdraw as counsel, PCRA counsel
       must attach to the application a “no-merit” letter[;]

       2) PCRA counsel must, in the “no-merit” letter, list each claim the
       petitioner wishes to have reviewed, and detail the nature and
       extent of counsel’s review of the merits of each of those claims[;]

       3) PCRA counsel must set forth in the “no-merit” letter an
       explanation of why the petitioner’s issues are meritless[;]


____________________________________________


1 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the [Appellant] has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney O’Hanlon filed his
petition to withdraw and no-merit letter with this Court and, thus, our
Supreme Court’s holding in Pitts is inapplicable.

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      4) PCRA counsel must contemporaneously forward to the
      petitioner a copy of the application to withdraw, which must
      include (i) a copy of both the “no-merit” letter, and (ii) a
      statement advising the PCRA petitioner that … the petitioner has
      the right to proceed pro se, or with the assistance of privately
      retained counsel;

      5) the court must conduct its own independent review of the
      record in the light of the PCRA petition and the issues set forth
      therein, as well as of the contents of the petition of PCRA counsel
      to withdraw; and

      6) the court must agree with counsel that the petition is meritless.

Friend, 896 A.2d at 615 (footnote omitted).

      Here, Attorney O’Hanlon has filed a petition to withdraw and a no-merit

letter.   In that letter, Attorney O’Hanlon sets forth the single issue that

Appellant wishes to have reviewed, and he indicates the nature and extent of

his review of that claim. He also explains why Appellant’s issue is meritless.

Attached to his petition to withdraw, Attorney O’Hanlon includes a letter

addressed to Appellant, informing Appellant that counsel is withdrawing,

stating that counsel has enclosed the no-merit letter, and advising Appellant

of his right to retain private counsel or proceed pro se. Accordingly, Attorney

O’Hanlon has satisfied the first four requirements for withdrawal under

Turner/Finley.

      Next, we will conduct our own independent assessment of the record to

determine if the issue presented in Appellant’s petition is meritless. We begin

by noting that this Court’s standard of review regarding an order denying a

petition under the PCRA is whether the determination of the PCRA court is




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supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      As stated supra, Appellant seeks to argue that he has not received

adequate credit for time served, which he believes renders his sentence illegal

and subject to correction by the PCRA court under the rationale of Mann. In

rejecting this claim, the PCRA court explained:

            In the issue that [Appellant] wishes to preserve for appeal,
      he states that he did not receive “sufficient” credit for time served.
      Because that claim is not cognizable under the PCRA, this [c]ourt
      was without jurisdiction to address the issue.

            It is true that if a defendant is entitled to credit for time
      served, but the sentencing court fails to order such credit, the
      sentence is illegal, and may be remedied through the PCRA.
      Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super.
      2007). However, where the sentencing court orders credit for
      time served, but [the] defendant takes issue with the calculation
      of the appropriate time credit by the Department of Corrections,
      the appropriate forum for the claim is an original action in
      Commonwealth Court. There is no jurisdiction under the PCRA to
      challenge the calculations of the Department of Corrections. See
      Commonwealth v. Heredia, 97 A.3d 392, 394-[]95 (Pa. Super.
      2014),     app[eal]   denied,    97   A.3d    392    (Pa.    2014);
      Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. Super.
      1989).

            Here, Judge Hughes’ sentencing order explicitly provided
      that: “[] [Appellant] is to receive credit for time served.”
      Sentencing Order, dated April 25, 2011. Judge Hughes left the
      computation of the time credit to the Department of Corrections.
      Since [Appellant] contends that the computation of the proper
      credit was not correct, his only remedy is in the Commonwealth
      Court. Heredia, 97 A.3d at 394-[]95; Perry, 563 A.2d at 512-
      []13.

            The case cited by [Appellant], … Mann, … is not to the
      contrary. In Mann, the defendant committed new crimes while
      on state parole, and by law, was entitled to have credit for time
      served applied to his sentence on those new crimes.           The

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      sentencing judge, who wanted the time credit to be applied to
      [the] defendant’s back[-]time for his parole violation, explicitly
      stated in the sentencing order that [the] defendant was to receive
      no time credit for any time served and that the time should instead
      be applied to the state parole violations. Mann, 957 A.2d at 748.
      The Superior Court held that the trial judge’s order providing for
      no time credit rendered the sentence illegal, and therefore, the
      sentencing court had jurisdiction to correct that error. Id. at 748-
      []49. Unlike in Mann, in the case at bar, the sentencing court
      awarded time credit, and any time credit error could only be
      attributable to the Department of Corrections’ calculation of that
      credit.

            Accordingly, [Appellant’s] claim was not cognizable under
      the PCRA, and the [c]ourt lacked jurisdiction to address it on the
      merits. No relief is due.

PCO at 2-4.

      After reviewing the cases relied upon by the PCRA court, we ascertain

no error in the court’s decision to deny Appellant’s petition because his claim

is not cognizable under the PCRA. In any event, we note that according to

Attorney O’Hanlon, Appellant has “received additional time credit during the

PCRA process and, despite requests from … counsel, [Appellant] has not been

able to show why he is entitled to further time credit.”       Rule 1925(c)(4)

Statement at 2 n.1; see also Commonwealth’s Brief at 5 n.2 (pointing out

that Appellant received credit for time served).

      Given this record, we agree with Attorney O’Hanlon that the PCRA court

did not err in denying Appellant’s petition. Therefore, we affirm the PCRA

court’s order and grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/18




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