J-S67016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

SCOTT ISAAC BOWRA

                            Appellant                   No. 330 WDA 2014


                Appeal from the PCRA Order February 20, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0010997-2007


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                            FILED FEBRUARY 24, 2015

         Appellant, Scott Isaac Bowra, appeals from the February 20, 2014

order, denying relief in response to his self-titled “Post-Sentence Motion,”

which we deem to be a denial of a motion filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1          After careful

review, we affirm, albeit on a different basis than that relied on by the trial

court.

         We summarize the procedural history of the case as determined from

the certified record as follows.        On May 13, 2008, a jury found Appellant

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  As discussed more fully within, Appellant purports to appeal from a
February 6, 2014 judgment of sentence.          As we conclude Appellant’s
characterization of the procedural posture of this case is faulty, we have
amended the caption to reflect the true position of this appeal.
J-S67016-14



guilty of possession of a controlled substance, possession of a controlled

substance with intent to deliver (PWID), and conspiracy.2              On August 28,

2008, Appellant was sentenced to an aggregate sentence of five to ten

years’ incarceration followed by two years’ probation. Specifically, Appellant

received three to six years for the PWID count, a consecutive two to four

years for the conspiracy count, and a consecutive two years’ probation on

the possession count. On direct appeal, this Court vacated the sentence and

remanded because the trial court had not conducted a full suppression

hearing    in   response    to   Appellant’s     omnibus   pre-trial   motion.   See

Commonwealth v. Bowra, 13 A.3d 987 (Pa. Super. 2010) (unpublished

memorandum).         On remand, the trial court, after a full hearing, denied

Appellant’s suppression motion and reinstated the original sentence on

January 3, 2011.        Appellant again appealed, and this Court affirmed the

judgment of sentence on May 4, 2012. See Commonwealth v. Bowra, 50

A.3d 233 (Pa. Super. 2012) (unpublished memorandum). Appellant did not

seek allowance of appeal from our Supreme Court.

        On December 20, 2012, Appellant filed a pro se PCRA petition.

Counsel was appointed and an amended PCRA petition was filed on January

31, 2013.       Therein, Appellant raised the legality of his sentence for the

failure of the trial court to merge the possession of a controlled substance


____________________________________________
2
    35 P.S. § 780-113(a)(16), (30), 18 Pa.C.S.A. § 903, respectively.



                                           -2-
J-S67016-14



and PWID counts. The PCRA court agreed and provided the following relief

on February 14, 2013.

           [Appellant’s] PCRA Petition is GRANTED to the extent
           that an amended sentencing order shall be entered,
           which shall sentence the Petitioner as follows: Count
           1: Possession of a Controlled Substance (Heroin)
           with Intent to Deliver Said Controlled Substance, 3
           to 6 years incarceration; Count 2: Possession of a
           Controlled Substance (Heroin), merged for purpose
           of sentencing with Count I; and, Count 3: Criminal
           Conspiracy, 2 to 4 years of incarceration to be
           followed by a consecutive period of 2 years
           probation.

PCRA Court Order, 2/14/13, at 1.          No appeal was taken from the PCRA

court’s February 14, 2013 order.

     On February 10, 2014, Appellant filed a counselled post-sentence

motion. Therein, Appellant references the trial court’s issuance, on February

6, 2014, of “a Form DC-300B Court Commitment State of County

Correctional   Institution”   that   he   purports   resentenced   Appellant   in

accordance with the February 14, 2013 PCRA order.             Appellant’s Post-

Sentence Motion, 2/10/14, at 3-4, ¶ 17.          In his post-sentence motion,

Appellant sought modification of his sentence in consideration of his

rehabilitative efforts since his initial 2008 sentencing. Id. at 4 ¶ 18. The

trial court denied Appellant’s post-trial motion, without a hearing or

accompanying reasons, on February 20, 2014.

     Appellant filed a notice of appeal on February 27, 2014, purportedly

from the “judgment of sentence—amended February 6, 2014.” Appellant’s


                                      -3-
J-S67016-14


Notice of Appeal, 2/27/14, at 1. Although not ordered to do so, Appellant

filed a concise statement of errors complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b) contemporaneously with

his notice of appeal. The trial court filed its Rule 1925(a) opinion on July 14,

2014,    addressing     the   merits    of     Appellant’s   discretionary   aspects   of

sentencing issue.

        On appeal, Appellant raises the following issue for our review.

              1.     Whether the [trial court] failed to consider—in
              light of [Appellant’s] conduct since imposition of the
              August, 6, 2008 sentence in this matter—all of the
              factors contained in 42 Pa.C.S. §§ 9721(b) and/or
              9781(d) prior to denying [Appellant’s] February 10,
              2014 Post-Sentence Motion?

Appellant’s Brief at 4.

        We first address the Commonwealth’s contention that the trial court’s

apparent treatment of Appellant’s post-sentence motion as timely filed is

erroneous.       Commonwealth Brief at 9.               The Commonwealth asserts

Appellant’s characterization of the trial court’s issuance of Pennsylvania

Department of Corrections form DC-300B as a sentencing order is not

correct.3 Id. at 9, n.7. We agree.

        The DC-300B form is not a court order imposing a sentence. It serves

as a commitment form addressed to the Department of Corrections.


____________________________________________
3
 We note the DC-300B form referenced by Appellant in his notice of appeal
and appellate brief is not contained in the certified record.


                                             -4-
J-S67016-14


            Form DC–300B is a commitment document
            generated by the Common Pleas Criminal Court Case
            Management System. See 37 Pa.Code § 96.4; 42
            Pa.C.S.A. § 9764. Section 9764 of the Judicial Code
            sets forth the procedure associated with transfer of
            an inmate into DOC custody and provides that, on
            commitment of an inmate, the transporting official
            must provide the DOC with a copy of the trial court’s
            sentencing order and a copy of the DC–300B
            commitment form. See 42 Pa.C.S.A. § 9764(a)(8).

Commonwealth v. Heredia, 97 A.3d 392, 394 n.3 (Pa. Super. 2014).

      The amended sentence in this case was imposed on February 14,

2013, by the PCRA court’s order granting relief and pronouncing the new

sentence.   “As a practical matter… a defendant begins to serve his or her

sentence    immediately   after   the   pronouncement   of   sentence.    The

pronouncement of sentence is not merely informational.        It is the actual

imposition of penalty.” Commonwealth v. Nahavandian, 954 A.2d 625,

630 (Pa. Super. 2008), quoting Commonwealth v. Green, 862 A.2d 613,

620 (Pa. Super. 2004). Accordingly, Appellant’s post-sentence motion was

untimely. See Pa.R.Crim.P. 720(A)(1) (requiring a post-sentence motion to

be filed within 10 days of the imposition of sentence). Further, absent the

filing of a timely post-sentence motion, any direct appeal from the judgment

of sentence must be filed within 30 days of the date of the imposition of the

sentence. Id. at 720(A)(3); Pa.R.A.P. 903(c)(3). Additionally, a sentencing

court loses jurisdiction to modify a sentencing order more than 30 days after

it is entered or after an appeal has been filed. 42 Pa.C.S.A. § 5505.




                                        -5-
J-S67016-14


       In light of the above, the Commonwealth recognizes that we must

determine whether Appellant’s self-titled post-sentence motion should have

been treated as an untimely post-sentence motion or as a PCRA petition.

Commonwealth’s Brief at 9. If treated as an untimely post-sentence motion,

Appellant’s appeal should be quashed as patently untimely, depriving this

court of jurisdiction.        “[T]he timeliness of an appeal implicates our

jurisdiction and may be raised sua sponte.” Commonwealth v. Trinidad,

96 A.3d 1031, 1035 (Pa. Super. 2014) (citations omitted). We note again

that a timely appeal must be filed within 30 days of the imposition of a

judgment of sentence. Pa.R.A.P. 903(c)(3). The period for filing an appeal

may not be enlarged by this Court. Id. at 105(b).

       However, this Court has previously treated filings, raising discretionary

aspects of sentencing claims, entered after the direct appeal period has

expired, as PCRA petitions. See Commonwealth v. Taylor, 65 A.3d 462,

465-468 (Pa. Super. 2013) (recognizing “that an untimely post-sentence

motion filed after finality of judgment is to be treated as a PCRA petition[]”),

citing Commonwealth v. Evans, 866 A.2d 442, 443 (Pa. Super. 2005), and

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000).4

____________________________________________
4
  The Taylor panel recognized a tension between its holding and the holding
in Commonwealth v. Wrecks, 934 A.2d 1287 (Pa. Super. 2007)
(concluding the trial court properly treated Wrecks’ filing, after his sentence
was final, as an untimely post-sentence motion). Taylor criticized Wrecks
for essentially ignoring Evans and Guthrie and relying on cases with
analyses that are no longer applicable. See Taylor, supra at 467, n.4.


                                           -6-
J-S67016-14


Accordingly, we conclude the trial court should have treated Appellant’s self-

titled post-sentence motion as a timely PCRA petition.5

       Instantly, as noted above, Appellant filed a counseled motion, and said

counsel continues to represent Appellant. Thus, there is no need to remand

for appointment of counsel. Cf. Evans, supra; Guthrie, supra (remanding

for appointment of counsel when trial court failed to treat untimely pro se

post-sentence motions as PCRA petitions).          We therefore proceed to

determine if the trial court’s order denying relief is nevertheless proper when

Appellant’s motion is viewed as a PCRA petition.      “[W]e, as an appellate

court, are empowered to affirm [the PCRA court’s] decision on any ground

without regard to the ground relied upon by [the PCRA court] itself.”

Commonwealth v. McKeever, 947 A.2d 782, 786 (Pa. Super. 2008)

(internal quotation marks and citation omitted).

       We reiterate the following principles guiding our consideration of an

appeal from the denial of PCRA relief.

              “On appeal from the denial of PCRA relief, our
              standard and scope of review is limited to
              determining whether the PCRA court’s findings are
              supported by the record and without legal error.”
              Commonwealth v. Edmiston, 65 A.3d 339, 345
              (Pa. 2013) (citation omitted)[, cert. denied,
              Edminston v. Pennsylvania, 1345 S. Ct. 639
____________________________________________
5
  There being no direct appeal, Appellant’s amended sentence became final
on March 16, 2013, 30 days after its imposition on February 14, 2013. See
Pa.R.A.P. 903(c)(3). Accordingly, Appellant had until March 16, 2014 to file
a timely PCRA petition, unless an exception to the one-year time
requirement applies. See 42 Pa.C.S.A. § 9545(b).


                                           -7-
J-S67016-14


           (2013)]. “[Our] scope of review is limited to the
           findings of the PCRA court and the evidence of
           record, viewed in the light most favorable to the
           prevailing party at the PCRA court level.”
           Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d
           121, 131 (2012) (citation omitted).        “The PCRA
           court’s credibility determinations, when supported by
           the    record,     are   binding   on   this   Court.”
           Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
           244, 259 (2011) (citation omitted). “However, this
           Court applies a de novo standard of review to the
           PCRA court’s legal conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc), appeal granted, --- A.3d ---, 2014 WL 6991663 (Pa. 2014).

Further, in order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived.          Id. §

9543(a)(3). “A claim is waived under the PCRA if, inter alia, it could have

been raised on direct appeal.”   Commonwealth v. Price, 876 A.2d 988,

993 (Pa. Super. 2005) (citation omitted), appeal denied, 897 A.2d 1184 (Pa.

2006), cert. denied, 549 U.S. 902 (2006).

     Instantly, Appellant’s sole issue is a challenge to the discretionary

aspect of his sentence. Appellant’s Brief at 12. This issue was not raised in

a timely post-sentence motion or a timely direct appeal. Consequently, the

issue is “previously waived” and relief under the PCRA is unavailable. See

42 Pa.C.S.A. § 9543(a)(3); Price, supra.     As no claim cognizable by the




                                    -8-
J-S67016-14


PCRA has been advanced by Appellant in his counselled February 10, 2014

motion, we conclude the denial of relief by the trial court was legally correct.

       In sum, we determine that Appellant’s characterization of the trial

court’s issuance of the Department of Corrections form DC-300B as an

imposition of sentence is mistaken. We conclude the trial court should have

treated Appellant’s counselled motion as a petition filed pursuant to the

PCRA. We nevertheless affirm the trial court’s decision to deny relief on the

alternative ground that Appellant failed to assert a claim cognizable under

the PCRA. Accordingly, we affirm the trial court’s February 20, 2014 order

denying relief, albeit on other grounds. 6

____________________________________________
6
  This panel originally filed this memorandum decision on December 9, 2014.
Appellant filed an application for reargument on December 19, 2014, and we
granted panel reconsideration on January 20, 2014. In his application for
reargument, Appellant first seeks to rely on the filing of a revised sentencing
order “Form CPCMS 2066,” which appears in the record. Application for
Reargument, 12/19/14, at 3. However, Appellant only referenced the DC-
300B form in his February 10, 2014 self-titled “Post-Sentencing Motion”
presented to the trial court. See Appellant’s Post-Sentence Motion, 2/10/14,
at 3-4, ¶ 17. Appellant may not raise this issue for the first time on appeal.
See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal”). Even if we
were to consider his argument relative to Form CPCMS 2066, it would not
alter our conclusion about the effective date of the February 14, 2013
amended sentence, as the same reasoning expressed herein would apply.

       Appellant also argues that if this Court deems his February 10, 2014
Post-Sentence Motion to be a PCRA petition, the proper disposition was not
to affirm, but to vacate and remand for a hearing or compliance by the trial
court with Pennsylvania Rule of Criminal Procedure 907. Again, however,
Appellant did not raise this issue on appeal. In Taylor, the trial court
treated the appellant’s habeas corpus petition as an untimely post-sentence
motion. Taylor, supra at 468. This Court held that the trial court should
(Footnote Continued Next Page)

                                           -9-
J-S67016-14


      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




                       _______________________
(Footnote Continued)
have treated the petition as a PCRA petition. Id. The Taylor Court further
held that any issue relative to the trial court’s non-compliance with Rule 907
was waived for failure to raise it on appeal. Id. Accordingly, Appellant’s
instant belated Rule 907 issue is similarly waived.

      Finally, Appellant raises a new legality of sentencing issue based on
the imposition of a mandatory minimum sentence of three years’
incarceration, under 18 Pa.C.S.A. § 7508(a)(2)(ii), on the PWID count in
contravention of Alleyne v. United States, 133 S. Ct. 2151 (2013)
(requiring any fact, other than a prior conviction, which triggers the
imposition of a mandatory minimum sentence to be first established by a
jury beyond a reasonable doubt).         As Appellant himself aptly notes,
“Alleyne has not been held to be retroactive to cases on collateral review
and, for reasons similar to those in Schriro v. Summerlin, 542 U.S. 348
(2004), would not likely be applied retroactively ….” Appellant’s Application
for Reconsideration, 12/19/14, at 14, see also Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (noting the holding
in Alleyne applies retroactively to cases on direct appeal at the time of its
decision). As noted herein, Appellant’s judgment of sentence became final
on March 16, 2013, shortly before the decision in Alleyne was handed down
on June 17, 2013. Therefore, after full reconsideration in response to
Appellant’s application, we conclude our original disposition is proper.


                                           - 10 -
