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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
ROBINSON HALL,                             :          No. 620 WDA 2014
                                           :
                          Appellant        :


                 Appeal from the PCRA Order, March 19, 2014,
               in the Court of Common Pleas of Crawford County
               Criminal Division at No. CP-20-CR-0000226-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED FEBRUARY 19, 2015

        Robinson Hall appeals from the order of March 19, 2014, denying his

PCRA1 petition. As appellant does not set forth any basis for PCRA relief, we

affirm.

        On June 11, 2012, appellant pled guilty to a single count of retail theft,

graded as a felony of the third degree. In exchange for his guilty plea, the

Commonwealth nol prossed the remaining charges, including criminal

conspiracy and possessing an instrument of a crime.               There was no

agreement as to sentencing. (Notes of testimony, 6/11/12 at 11.)

        On June 26, 2012, appellant appeared for sentencing before the

Honorable Mark D. Stevens. The trial court imposed an aggravated range



1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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sentence of 19 to 38 months’ incarceration, to run concurrently with any

other sentences appellant was currently serving. At the time of sentencing,

appellant    was   on   state   parole.     Appellant   filed   untimely   pro   se

post-sentence motions which were denied. No direct appeal was filed.

        On June 7, 2013, appellant filed a timely pro se PCRA petition,

alleging that the trial court’s sentencing order of June 26, 2012, was not

being honored by the Pennsylvania State Board of Probation and Parole in

that his sentences were not being run concurrently. Counsel was appointed

and filed an amended petition on appellant’s behalf on August 21, 2013.

        The PCRA court heard argument on the petition on September 24,

2013.     On November 26, 2013, the PCRA court gave notice, pursuant to

Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss the petition

without an evidentiary hearing within 20 days.            Appellant was granted

several extensions of time within which to file a response to Rule 907 notice,

and filed a response on March 4, 2014. By order dated March 19, 2014, but

docketed on March 20, 2014, appellant’s petition was dismissed. A timely

notice of appeal was filed on April 14, 2014. On April 17, 2014, appellant

was ordered to file a concise statement of errors complained of on appeal

within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant

timely complied on April 24, 2014; and on May 12, 2014, the PCRA court

filed a Rule 1925(a) opinion.

        Appellant has raised the following issues for this court’s review:



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            1.     Whether the Trial Court erred in dismissing
                   [appellant]’s [] Amended Petition for [PCRA]
                   Relief [] without the benefit of an evidentiary
                   hearing    to    allow    testimony     regarding
                   allegations of constitutional violations?

            2.     Whether the Trial Court erred by not exercising
                   its authority, pursuant to 42 Pa.C.S.A. § 761,
                   to Order the Department of Corrections to
                   comply with its sentencing Order of June 26,
                   2012?

            3.     Whether the Trial Court erred by not
                   transferring the case to the Commonwealth
                   Court pursuant to 42 Pa.C.S.A. § 5103?

Appellant’s brief at 3.

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super.2001).     It is within the PCRA court’s
            discretion to decline to hold a hearing if the
            petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. Id.
            It is the responsibility of the reviewing court on
            appeal to examine each issue raised in the PCRA
            petition in light of the record certified before it in
            order to determine if the PCRA court erred in its
            determination that there were no genuine issues of


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             material fact in controversy and in denying relief
             without   conducting    an   evidentiary  hearing.
             Commonwealth v. Hardcastle, 549 Pa. 450, 454,
             701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,

1239-1240 (Pa.Super. 2004).       “After a defendant has entered a plea of

guilty the only cognizable issues in a [PCRA] proceeding are the validity of

the plea of guilty and the legality of the sentence.”      Commonwealth v.

Martinez, 539 A.2d 399, 401 (Pa.Super. 1988) (citation omitted).

      In his first issue on appeal, appellant complains that by dismissing his

claims without an evidentiary hearing, his constitutional rights to access to

the courts and habeas corpus were violated. (Appellant’s brief at 11-12.)

The PCRA court found that appellant’s claim was not cognizable under the

PCRA. Appellant concedes that he is not asserting actual innocence or trial

counsel ineffectiveness.    (Id. at 11.)    Rather, appellant argues that his

sentence is illegal because the Department of Corrections (“DOC”) and

Parole Board are refusing to run his sentence concurrently, as directed by

the trial court.

      First, we observe that appellant is not being denied his constitutional

right of access to the courts, or his right to file a petition for writ of habeas

corpus. Rather, issues that are cognizable under the PCRA must be raised

in a timely PCRA petition and cannot be raised in a habeas corpus petition.

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa.Super. 2013). The

PCRA is the exclusive vehicle by which to obtain post-conviction, state


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collateral relief, and subsumes all other common law remedies, including

habeas corpus and coram nobis.             Com. ex rel. Strope v. District

Attorney of Bradford County, 789 A.2d 218, 220 (Pa.Super. 2001),

appeal denied, 805 A.2d 518 (Pa. 2002), citing Commonwealth v.

Bronshtein, 752 A.2d 868, 869-870 n.3 (Pa. 2000); 42 Pa.C.S.A. § 9542.

Appellant’s illegality of sentencing claim is cognizable under the PCRA.

      Second, appellant’s claim is patently meritless.     In fact, the Parole

Board was statutorily required to run his parole revocation sentence

consecutively to his sentence on the new charges. 61 Pa.C.S.A. § 6138.

            [The Parole Act] mandates that sentences for crimes
            committed on parole must be served consecutively
            with time remaining on original sentences and thus
            prohibits courts of this Commonwealth and the Board
            from imposing concurrent sentencing.      Also, the
            Board may not impose a parole violation sentence to
            run concurrently with a new sentence for an offense
            committed while on parole.

Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634,

638 (Pa.Cmwlth. 1999) (citations omitted).     See also Commonwealth v.

Ortiz, 745 A.2d 662 (Pa.Super. 2000), appeal denied, 795 A.2d 973 (Pa.

2000), disapproved of on other grounds by Commonwealth v.

Castillo, 888 A.2d 775 (Pa. 2005) (by statute, parole violators are required

to serve in consecutive fashion the sentence for the new crime as well as the

unexpired balance of the parole sentence). Therefore, to the extent the trial

court’s sentencing order to the effect that appellant’s sentence is “to run

concurrent with any other sentences which you are currently serving,” could


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be construed to include appellant’s parole revocation sentence, it is contrary

to established law.   The trial court did not have the authority to impose

appellant’s VOP sentence concurrently with the sentence on the new

charges.

      Moreover, appellant was well aware of this fact at the time of his guilty

plea and sentencing.      Appellant was put on notice that, despite the

sentencing order, he might have to serve his back time on the parole

violation consecutively to his sentence on the new charges. Therefore, he

cannot claim his plea was invalid on this basis.       During the guilty plea

colloquy, appellant was informed that there was no agreement as to

sentencing, and that the maximum sentence for retail theft was seven years’

imprisonment and a $15,000 fine, plus whatever he might receive on the

parole violation:

            THE COURT: Now, that’s in addition to whatever you
            might receive on the probation/parole violation. But
            on this case in this docket in this courtroom, the
            most you could receive is those numbers. Yeah, go
            ahead.

            [APPELLANT]: I’m not on probation, sir.      I haven’t
            been on probation for over 20 years.

            THE COURT: Probation or parole.

            [APPELLANT]: Yeah, I’m on parole.         Probation is
            county. Parole is state.

            THE COURT: And I understand that.

            [APPELLANT]: Right.



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           THE COURT: But I guess my point is that you
           understand that this is in addition to whatever you
           might receive for any violation?

           [APPELLANT]: Okay.

Notes of testimony, 6/11/12 at 12.

     In fact, at sentencing, appellant expressed his belief that no matter

what the sentencing court ordered, the Parole Board would run his back time

consecutively:

           THE COURT: Okay. The sentence -- I think the
           sentence is an aggravated sentence, but I’m going to
           run it concurrent so by the time you shape all that all
           up, it probably won’t make much difference. That’s
           my opinion on how it should be handled. State
           parole has their own authority, as you know, and
           they will do what they see fit but I think you’re at
           least pointing in the right direction here with the
           drug and alcohol piece.

           [APPELLANT]: Can I say something, Your Honor?

           THE COURT: Of course you can.

           [APPELLANT]: You stated that you ran it concurrent
           with the sentence that I’m serving now, my old
           sentence; is that what you said?

           THE COURT: Yes.

           [APPELLANT]: But it ain’t [sic] going to work like
           that. Do you know why it’s not going to work like
           that? They’re not going to honor that, they’re not
           going to honor your decision, sir. The reason why
           I’m saying they’re not going to honor your decision,
           due to the fact the parole board -- this is how they
           do things, this is how they work. You can parole
           people. They are going to run it bull-legged. I don’t
           care if you do run it concurrent.



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           THE COURT: I understand the way they try to do it.
           I know that that’s my intention. If they have the
           authority -- and we have this discussion all of the
           time with them.

           [APPELLANT]: Okay.

           THE COURT: If they have the authority, it is up to
           them. They can ultimately trump it. That’s what I
           just said to you.

           [APPELLANT]: Right.

           THE COURT: But I’m telling you I see this as a
           continuation and that’s why I did it. I want them to
           know my opinion on how it should run.

           [APPELLANT]: Okay.

           THE COURT:        If they decide to do something
           differently, then that’s to some extent within their
           power, but I want them to know my opinion. Okay?

           [APPELLANT]: Okay.

           THE COURT: Sometimes it’s funny, Mr. Hall, that I
           feel like I’ve worked pretty hard to get here and I
           don’t get to make the final decisions all of the time
           and you understand that.

           [APPELLANT]:       I just want to bring it to your
           attention so it’s on the record.

           THE COURT: I get it. I know the way it works.

           [APPELLANT]: Okay.

Notes of testimony, 6/26/12 at 23-25.

     Appellant was a sophisticated defendant with a prior record score of

five and a criminal record dating back to at least 1980, when he was

sentenced to state time.   (Id. at 7-8.)   It is evident from the interaction


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between appellant and the trial court that appellant knew exactly how the

system worked. Appellant had no reasonable expectation that his sentences

would   be   made    concurrent,   regardless    of   the   court’s   order.   As

Judge Stevens remarked during oral argument on appellant’s PCRA petition:

             I’ll put concurrent in there to see if it gives you, and
             I maybe even used those words, a fighting shot to
             argue that it is concurrent. If you can convince
             them, that’s fine with me. I don’t care. But that’s
             not my decision. That’s their decision. And he knew
             that. He understood that. And we talked about it.
             And it’s on -- it’s in the plea colloquy that we talked
             about it.

Notes of testimony, 9/24/13 at 23-24.

             So you can’t suggest that [appellant] was shocked
             when he got there and didn’t get a concurrent
             sentence. And certainly, nothing was said on the
             record or off the record that would suggest that to
             him that, you know, what he understood was wrong
             and you’re going to get a concurrent sentence. It
             just wasn’t the case.

Id. at 24.

             He knew that day what we were doing. I explained
             to him and I gave him a fighting chance to try to fix
             it and instead he is now throwing it back at us and
             saying, hey, you know, you said in here concurrent.
             We never thought it would be concurrent. He knew
             that.    We knew that.      His lawyer knew that.
             Everybody knew that. It was put there as a courtesy
             to him to try to help him. And now, because it didn’t
             get -- because he got exactly what he thought he
             was going to go get but which he hopped [sic] he
             wouldn’t, now he is suggesting somehow that I
             meant something by the transcript which clearly I
             didn’t mean and he is adding significance to our
             language that just is not there and frankly not
             accurate.


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Id. at 25-26.    The underlying claim, that appellant should have received

concurrent sentences, is meritless. Appellant is required to serve any back

time on the parole violation consecutively, and this was explained to him at

his plea and sentencing. The plea was open as to sentencing. Appellant was

not suffering from any misapprehension as to the nature of his sentence.

      Next, appellant argues that the trial court should have issued an order

directing the DOC to comply with its June 26, 2012 sentencing order.

(Appellant’s brief at 13.) The cases cited by appellant relate to calculation of

time credit, which is not at issue in this case. Cf. McCray v. Pennsylvania

Dept. of Corrections, 872 A.2d 1127, 1133 (Pa. 2005) (DOC did not have

a duty to credit defendant for time served because the trial court did not

order credit for time served and the DOC has no authority to alter

sentencing conditions). Furthermore, the PCRA is not the proper vehicle to

seek review of the Board’s administrative decisions, or to challenge the

DOC’s calculation of sentences.    See Commonwealth v. LeGrande, 567

A.2d 693 (Pa.Super. 1989) (holding that the PCRA is not the proper vehicle

to   challenge    the    Board’s    determination    of    parole   eligibility);

Commonwealth v. Perry, 563 A.2d 511 (Pa.Super. 1989) (holding that the

PCRA is not the proper vehicle to challenge the Bureau of Corrections’

calculation of sentences).

      Finally, appellant contends that the PCRA court should have treated his

petition as an action in mandamus and transferred the matter to the


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Commonwealth Court. (Appellant’s brief at 15-16.) According to appellant,

the Commonwealth Court could then decide whether the DOC and the Parole

Board were failing to comply with the sentencing order. (Id. at 16.) See

Bright v. Pennsylvania Bd. of Probation and Parole, 831 A.2d 775,

777-778 (Pa.Cmwlth. 2003) (“A writ of mandamus will lie to compel the

Department     of   Corrections   to   properly   compute   a   prisoner’s   prison

sentence.”) (citations omitted). The appropriate vehicle for redress of any

specific calculation of time served would be an original action in the

Commonwealth Court challenging the DOC’s computation, after exhausting

any administrative remedies available through the DOC’s internal grievance

process.   See Perry, 563 A.2d at 512-513; Black v. Pennsylvania

Department of Corrections, 889 A.2d 672, 674 (Pa.Cmwlth. 2005).

      This case has nothing to do with calculation of credit time. Appellant

received all available credit time against his sentences. (Notes of testimony,

6/26/12 at 6.) This is not in the nature of a mandamus action and transfer

to the Commonwealth Court would be inappropriate. In fact, as discussed

above, the Parole Board was required to run appellant’s sentences

consecutively, irrespective of the trial court’s order. The Parole Board was

without discretion to allow appellant to serve out his back time concurrently

with his sentence on the new charges.             Appellant’s claim was patently

frivolous and the PCRA court did not abuse its discretion in dismissing it

without an evidentiary hearing.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2015




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