J-S69004-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                v.

HOWARD FREEMAN, JR. A/K/A HOWARD
FREEMAN

                     Appellant                No. 1509 WDA 2016


             Appeal from the Order of September 6, 2016
          In the Court of Common Pleas of Allegheny County
                      Criminal Division at No(s):
                       CP-02-CR-0002297-2009
                       CP-02-CR-0004927-2011
                       CP-02-CR-0008542-2010
                       CP-02-CR-0012006-2010
                       CP-02-CR-0013403-2008


COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                v.

HOWARD FREEMAN, JR. A/K/A HOWARD
FREEMAN

                     Appellant                No. 1583 WDA 2016


               Appeal from the Order of August 14, 2012
          In the Court of Common Pleas of Allegheny County
                       Criminal Division at No(s):
                       CP-02-CR-0002297-2009
                       CP-02-CR-0004927-2011
                       CP-02-CR-0008542-2010
                       CP-02-CR-0012006-2010
                       CP-02-CR-0013403-2008
J-S69004-17




BEFORE: BOWES, RANSOM, JJ. and STEVENS,P.J.E.*

MEMORANDUM BY BOWES, J.:                              FILED FEBRUARY 15, 2018

       Howard Freeman appeals from two orders declining to award him

additional time credit towards his sentence of incarceration.             Appellant

agrees that he is not lawfully entitled to that time credit. His theory of relief

is premised upon an allegation that the Commonwealth agreed to that time

credit as a component of his plea.             We quash the appeal at 1583 WDA

2016, as the notice of appeal was filed over four years after Appellant

received notice of the order at issue, and therefore represents an attempt to

manufacture jurisdiction. We affirm the order at 1509 WDA 2016.

       This appeal concerns a negotiated guilty plea to five cases.             Briefly

stated, three of these cases involved charges of possession of marijuana.

The remaining two cases involved firearms. At criminal case 2008-13403,

Appellant was charged with two counts of unlawfully possessing a firearm

due to his possession of two separate firearms. At the other case, docketed

at 2010-8542, Appellant possessed marijuana and a firearm.

       Due    to   the   foregoing     incidents,   Appellant   was   charged     with

approximately two dozen crimes spanning the five dockets. Ultimately, the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.




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J-S69004-17



parties reached a plea agreement, executed on November 17, 2011. The

Commonwealth agreed to an aggregate sentence of two and one-half years

to five years incarceration, with a period of probation to be set by the trial

court.

         The trial court accepted the plea, and sentenced Appellant that same

day to three concurrent terms of two and one-half to five years incarceration

at the three firearm charges.      At three of the five counts of possession of

marijuana, Appellant received a sentence of three years probation, each

concurrent to each other, but consecutive to incarceration.          No further

penalty was imposed at all remaining charges.

         Finally, the trial court awarded Appellant pre-trial time credit in the

amount of 323 days at 2010-8542, which involved one firearms charge; this

time credit was not applied towards the sentences of incarceration imposed

at 2008-13403 for the remaining two firearms charges. Thus, as a result,

the application of time credit did not decrease the actual amount of time

Appellant would serve as a result of his plea, since all three sentences of

incarceration were concurrent to each other. That fact forms the basis for

the current appeal, as Appellant claims that he will serve 323 days in excess

of the agreed-upon sentence.

         Appellant did not file post-sentence motions, a direct appeal, or a

petition for collateral relief. Instead, on August 7, 2012, Appellant, through

plea counsel, filed a document styled as a Motion for Time Credit, in which

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Appellant represented that his records “are reflecting no credit for time

served on [2008-13403], which does not reflect the plea agreement.”

Motion for Time Credit, 8/7/12, at 1.       On August 14, 2012, the trial court

denied the motion. Appellant did not timely appeal this order.

      In fact, Appellant did not take any further action at these cases until

August 11, 2016, when he filed a new motion, again through plea counsel.

As with the 2012 request for relief, Appellant alleged that he was entitled to

the   application   of   time   credit   towards   all    periods   of   incarceration.

“Defendant is due credit for this period of time at the combined case

numbers. . . . [t]he errors must be corrected in the interests of justice so

that the Defendant's sentence [is] constitutionally valid and accurate.”

Motion to Correct Sentence, 8/11/16, at 2.               The motion stated that the

asserted mistakes must “be corrected to reflect the agreement of cou[n]sel,

the Commonwealth, this Court, and the Co-Defendant's counsel.” Id. The

trial court denied that motion on September 6, 2016.

      Appellant responded by filing a motion requesting reconsideration and

appointment of new counsel for purposes of appeal, docketed October 3,

2016. The next day, the trial court appointed current counsel. Appellant,

through new counsel, filed on October 6, 2016, a timely notice of appeal

citing the September 6, 2016 order.          Appellant timely complied with the

order to file a Pa.R.A.P. 1925(b) concise statement, but his concise

statement separately included the following heading:

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J-S69004-17



                               NOTICE OF APPEAL

      NOTICE is hereby given that HOWARD FREEMAN, JR. a/k/a
      HOWARD FREEMAN, Defendant above named, hereby appeals to
      the Superior Court of Pennsylvania from the Order dated August
      13 (filed August 14), 2012[.]

Concise Statement/Notice of Appeal, 10/17/16, at 1.              Thus, this one

document simultaneously set forth his issues complained of on appeal

concerning the September 6, 2016 order, in addition to purporting to appeal

from the 2012 order. Appellant moved for consolidation of the two appeals,

which we granted. Appellant presents the following issues for our review.

      1. Whether the appeal . . . of the August 13/14, 2012 Order is
      timely due to failure of the Allegheny County Department of
      Court Records (Criminal Division) to comply with Pa.R.Cr.P. 114?

      2. Whether the appeal . . . of the August 13/14, 2012 Order is
      timely due to failure of the Court of Common Pleas to comply
      with Pa.R.Cr.P. 907(4)'s requirement to notify Defendant of his
      right to appeal and/or the time period within which to file an
      appeal?

      3. Whether the Court of Common Pleas erred and/or abused its
      discretion in denying Defendant's August 7, 2012 Motion for
      Time Credit and August 11, 2016 Motion for Credit for Time
      Served which sought enforcement of the plea agreement which
      provided for application of credit for time served toward all
      sentences of incarceration such that Defendant's aggregate/
      composite sentence of incarceration would be no greater than
      2.5 year to 5 years?

Appellant’s brief at 4.

      This   statement    of   questions   is   confusing   in   that   Appellant

simultaneously maintains that he is entitled to relief as a matter of

contractual law regarding his plea bargain, while also suggesting that the

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J-S69004-17



motions could have been treated as requests for relief under the PCRA.1 We

first address the proper characterization of both motions since they

contained virtually identical requests for relief.

       Preliminarily, we note that Appellant concedes that the trial court did

not err as a matter of statutory law in refusing to apply the time credit at all

three sentences of incarceration. “[Appellant] is not claiming he is entitled

to credit at [2008-13403] under [the governing statute]. Indeed, he is not

entitled to credit under that statute as he was not detained prior to

sentencing on that case.” Appellant’s brief at 17, n.5. Instead, the theory

of relief for both orders is framed as enforcing a plea bargain. Appellant’s

brief at 19 (describing the instant sentence as “not in accordance with the

terms of the plea agreement”).

       Hence, the remaining question is whether his requests for relief fell

under the PCRA and are therefore subject to its statutory provisions.        In

Commonwealth v. Partee, 86 A.3d 245 (Pa.Super. 2014), we reviewed an

order denying a petition seeking enforcement of a particular term-of-years

regarding sexual registration obligations. If treated as a PCRA petition, the


____________________________________________


1 Pennsylvania Rule of Criminal Procedure 907(4), cited by Appellant in his
second issue, applies to PCRA petitions and mandates that an order
dismissing a PCRA petition without a hearing inform the litigant of his right
to appeal. The orders denying the two motions at issue herein did not
inform Appellant of any appellate rights.



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J-S69004-17



motion was untimely, as it was filed more than one year after judgment of

sentence became final. We held that the motion fell outside of the PCRA.

       We note that the within petition is not an attack on Appellant's
       sentence, nor is he alleging that he is innocent of the offenses of
       which he was convicted. Appellant is not asserting that his
       conviction or sentence resulted from a violation of the
       Constitution, ineffective assistance of counsel, an unlawfully-
       induced plea, obstruction by government officials of his right to
       appeal, newly-discovered evidence, an illegal sentence, or a lack
       of jurisdiction. In short, we agree with Appellant that his claim
       does not fall within the scope of the PCRA and should not be
       reviewed under the standard applicable to the dismissal of PCRA
       petitions. Furthermore, it is not subject to the PCRA's time
       constraints, and hence, we have jurisdiction to entertain it.

Id. at 247 (citations omitted).

       Similarly, both motions at issue herein represented that Appellant

bargained for a particular sentence.2 Accordingly, we find that both motions

are not subject to the PCRA.

       We now address the timeliness of these appeals. As we explained in

Commonwealth v. Gaines, 127 A.3d 15 (Pa.Super. 2015) (en banc):

       In order to invoke our appellate jurisdiction, Pennsylvania Rule
       of Appellate Procedure 903 requires that all “notice[s] of appeal
       ... shall be filed within 30 days after the entry of the order from
       which the appeal is taken.” Pa.R.A.P. 903(a). Because this filing
       period is jurisdictional in nature, it must be strictly construed
       and “may not be extended as a matter of indulgence or
____________________________________________


2 We agree with the Commonwealth that the motions were woefully pled, in
that the stray references to making Appellant’s sentence “constitutionally
valid and accurate” hardly served to alert the trial court to the nature of his
claim.




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J-S69004-17



      grace.” Commonwealth        v.   Pena, 31     A.3d    704,    706
      (Pa.Super.2011) (citation omitted).

Id. at 17. For the following reasons, we conclude that the appeal at 1583

WDA 2016 must be quashed, while the appeal at 1509 WDA 2016 is timely.

      Since both appeals request relief under the exact same theory and

would involve the exact same analysis, we shall not belabor our analysis of

the quashed appeal. Simply stated, Appellant attempted to appeal an order

over four years after its entry upon the docket. He concedes that the notice

of appeal was not filed within thirty days of the order being docketed, but he

nevertheless maintains that for purposes of Pa.R.A.P. 903 and its language

“entry of the order from which the appeal is taken,” his appeal was timely

under these facts.   Appellant directs our attention to Pa.R.A.P. 108(a)(1),

which states, in relevant part, that “the day of entry shall be the day the

clerk of the court or the office of the government unit mails or delivers

copies of the order to the parties[.]”       See Pa.R.A.P. 108(d)(1) (“In

determining the date of entry of criminal orders, subdivision (a)(1) shall

apply[.]”). Pivoting to the Rules of Criminal Procedure, Appellant notes that

Rule 114 provides as follows:

      Rule 114. Orders and Court Notices: Filing; Service; and Docket
      Entries

            ....

      (C) Docket Entries

      (1) Docket entries promptly shall be made.

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J-S69004-17




       (2) The docket entries shall contain:

              (a) the date of receipt in the clerk's office of the
              order or court notice;

              (b) the date appearing on the order or court notice;
              and

              (c) the date of service of the order or court notice.

Pa.R.Crim.P. 114. The docket reflects that Rule 114(C)(2) was not followed,

as it fails to indicate the dates as required.    As a consequence of these

administrative failures, Appellant avers that the order was never entered for

purposes of Pa.R.A.P. 108, and, in turn, the thirty-day time limit contained

within Pa.R.A.P. 903 is inapplicable.

       We do not agree that the docketing failure requires a finding that the

order was not entered for purposes of triggering the requirement that an

appeal must be filed within thirty days. Significantly, the trial court opinion

states that the orders were served on counsel, a point Appellant does not

dispute.3 Appellant nevertheless avers that “this does not cure the clerk’s

inaction and violation.” Appellant’s brief at 14. For the following reasons,

we disagree.



____________________________________________


3 We note that the clerk of courts’ failure to indicate the date of service to
counsel does not, of course, mean that service was not actually made by
that office. The absence of evidence is not evidence of absence.



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J-S69004-17



       It is true that docketing failures can excuse an untimely appeal, often

due to a breakdown in the administrative process.              For example, in

Commonwealth v. Jerman, 762 A.2d 366 (Pa.Super. 2000), we rejected

the Commonwealth’s motion to quash an appeal as untimely.                 There,

Jerman’s PCRA petition was denied by order dated April 15, 1999. Jerman

appealed by notice of appeal docketed June 16, 1999.           Id. at 367.   We

deemed the appeal timely, because “[o]ur review of the docket entries

discloses no indication that the clerk furnished a copy of the order to

[Jerman].”     Id. at 368.     In contrast, Appellant herein had actual notice of

the order despite the procedural irregularities in formally entering the order

on the docket. Thus, Appellant knew that an order denying his request for

relief was issued, despite the clerk’s failure to comply with Pa.R.Crim.P. 114.

We do not countenance the theory that a party having actual notice of an

order can refuse to perfect an appeal, then later manufacture jurisdiction by

raising a procedural flaw regarding the manner in which a docket entry was

annotated.4 We therefore quash the appeal at 1583 WDA 2016.

____________________________________________


4 In the related context of motions seeking reinstatement of appellate rights
nunc pro tunc due to attorney abandonment, as filed through an untimely
PCRA, we have required that the petitioner demonstrate due diligence, i.e.,
the petitioner took steps to protect his own interests. Commonwealth v.
Bennett, 930 A.2d 1264 (Pa. 2007). Following this logic, it would be
incongruous to hold that Appellant was not required to protect his appellate
rights by appealing from an order known to him.



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J-S69004-17



       We now address the appeal docketed at 1509 WDA 2016.              The trial

court determined that relief was not warranted for these reasons:

       As set forth above, the sentencing orders in the five cases are
       clearly correct in that they impose concurrent sentences of 2 ½
       to 5 years and concurrent periods of 3 years probation. If
       Defendant alleges there was some later erroneous computation
       of his sentence by the Bureau of Corrections related to his time
       served, then the appropriate procedure would be an original
       action in the Commonwealth Court[.]

Trial Court Opinion, 7/19/17, at 4-5.

       The Commonwealth also adopts this position, stating that the proper

venue was Commonwealth Court.              We disagree, as the trial court and the

Commonwealth misconstrued Appellant’s claim.               He is not seeking a

particular computation of his time credit as previously awarded by the trial

court; instead, he is claiming that the Commonwealth’s plea offer of two and

one-half to five years incarceration meant that Appellant would spend no

more than five years in prison including his pre-trial confinement time.5 To

achieve this result, he requested that the trial court enter an order granting

him time credit on the plea bargain theory discussed supra.             Thus, we

examine the merits of his claim, to which we apply the following standard of

review:

____________________________________________


5 In effect, Appellant’s claim is that his “true” sentence was 224 days at the
minimum (two and one-half years minus the 323 days he was incarcerated
while awaiting trial). Obviously, if that was the actual intent of the parties,
the agreement to sentence could have been structured in this manner.



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J-S69004-17



      “In determining whether a particular plea agreement has been
      breached, we look to ‘what the parties to this plea agreement
      reasonably understood to be the terms of the agreement.’”
      Commonwealth v. Fruehan, 384 Pa.Super. 156, 557 A.2d
      1093, 1095 (1989) (internal citations omitted). Such a
      determination is made “based on the totality of the surrounding
      circumstances,” and “[a]ny ambiguities in the terms of the plea
      agreement will be construed against the [Commonwealth].”
      Commonwealth v. Kroh, 440 Pa.Super. 1, 654 A.2d 1168,
      1172 (1995) (internal citations omitted).

Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa.Super. 2013) (en

banc).   In conducting this analysis, our starting point is the terms as set

forth on the record. Id. (“The terms of [the] plea were carefully laid out on

the record[.]”).

      While there was no evidentiary hearing in this case due to the

misapprehension of Appellant’s claim, we find that a remand is unnecessary

as the record settles the matter. The prosecutor stated the plea agreement

as follows: “The offer is a sentence of two-and-a-half-to-five years to resolve

cases for this Court, 3403, 229 and 8542, as well as his two cases in front of

Judge Lazzara, case ending in 200 and 4927.” N.T. Plea, 11/17/11, at 8.

      Appellant argues that “[the] contemplated global disposition clearly

represents an understanding between the parties that the 2.5 to 5 years was

a composite sentence to resolve all cases.” Appellant’s brief at 16-17. We

fully agree with that recitation of the terms, and Appellant received exactly

that: a sentence of two and one-half to five years incarceration. Nowhere

did the prosecutor make an agreement as to time credit, and the application



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J-S69004-17



of time credit is specifically controlled by statute.6     To the extent that

Appellant mistakenly believed that he would receive time credit at all three

sentences of incarceration, that particular claim must be brought under the

PCRA as it would concern plea counsel’s advice to Appellant.             See

Commonwealth v. Hickman, 799 A.2d 136 (Pa.Super. 2002) (plea was

involuntary due to counsel’s misadvice regarding sentencing, where counsel

informed defendant that he was eligible for boot camp program when, in

fact, defendant was statutorily ineligible).

        The current claim is limited to an assertion that the Commonwealth’s

plea bargain included a promise to impose an illegal sentence, an assertion

that is contradicted by the record. We therefore affirm.

        Appeal at 1583 WDA 2016 quashed.           Order affirmed at 1509 WDA

2016.




____________________________________________


6  As we have previously noted, Appellant concedes that he was not lawfully
entitled to receive the credit at all three periods of incarceration. Thus,
implicit in Appellant’s argument is that the Commonwealth agreed to impose
an illegal sentence, and that the trial court could be required to impose an
illegal sentence. We express no opinion regarding whether the plea bargain
enforcement theory can require a trial court to impose an illegal sentence.




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J-S69004-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2018




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