J-S44012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ALBERT THEODORE GREELEY, III

                            Appellant               No. 1544 WDA 2014


                     Appeal from the Order August 21, 2014
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000133-2009


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 09, 2015

       Appellant Albert Theodore Greeley, III appeals from the order denying

his motion seeking clarification of sentence. Because the trial court lacked

jurisdiction to address the motion, we vacate the order.

       On November 18, 2010, the Fayette County Court of Common Pleas

sentenced Appellant to 18-36 months’ imprisonment at docket number CP-

26-CR-0001145-2010, with credit for time served on June 30, 2009.1

Appellant’s Brief at Appendix C.2

____________________________________________


1
  On November 18, 2010, the courts also sentenced Appellant to 60 days’
imprisonment at docket number OTN No. K907878-6, to run concurrent with
the sentence imposed at docket number CP-26-0001145-2010. Appellant’s
Brief at Appendix C.
2
  The certified record does not contain the sentencing orders from other
cases. We have relied upon the sentencing orders attached to Appellant’s
(Footnote Continued Next Page)
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        On April 7, 2011, at docket number CP-26-0001395-2010, the

sentencing court imposed a sentence of 6 to 12 months’ imprisonment.

Appellant’s Brief at Appendix D. That court awarded credit for time served

from August 16, 2010 through November 18, 2010. Id.

        On October 6, 2011, a jury convicted Appellant of possession of a

controlled substance with the intent to deliver (“PWID”), 3,         4
                                                                         intentional

possession of a controlled substance,5 and driving without a license at

docket CP-26-CR-0000133-2009.6               On October 31, 2011, the trial court

sentenced Appellant to 7 to 20 years’ incarceration for PWID and imposed no

further penalty for the remaining convictions. The trial court ordered that

Appellant receive credit for the time he spent in custody on October 30,

2008 and credit for time served from May 16, 2010 to August 16, 2010. The

                       _______________________
(Footnote Continued)

Brief.  The sentences imposed, and the credit awarded in the prior
sentencing orders, are not in dispute.
3
    35 Pa.C.S. § 780-113(a)(30).
4
  The certified record does not contain documents pre-dating the sentencing
order. We have gleaned the information regarding the dates and disposition
of Appellant’s charges from the docket.
5
  The docket lists this crime as possession of a controlled substance, 35
Pa.C.S. § 780-113(a)(16). This Court and the trial court in prior appeals,
however, list the crime as possession of a small amount of marijuana, 35
PA.C.S. § 780-113(a)(31).           Without a complete certified record or
transcripts, it is unclear which is accurate.
6
    75 Pa.C.S. § 1501(a).




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trial court ordered that the sentence run concurrent to the sentences

imposed by the Fayette County Court of Common Pleas at docket numbers

CP-26-CR-0001395-2010        and   CP-26-CR-0001145-2010,     and   by   the

Allegheny County Court of Common Pleas at CP-02-CR-0004930-2009 and

CP-02-CR-0015573-2009.

      Appellant did not file a post-sentence motion or a direct appeal. On

December 22, 2011, Appellant filed a pro se petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. Appointed counsel

filed a petition for leave to appeal nunc pro tunc, which the trial court

granted. Appellant filed an appeal, and this court affirmed the judgment of

sentence on February 21, 2013.       Commonwealth v. Greeley, No. 410

WDA 2012 (Pa.Super. filed Feb. 21, 2013) (unpublished memorandum).

      On April 23, 2013, Appellant filed a pro se PCRA petition, which he

amended on May 29, 2013. Counsel filed an amended petition on October

16, 2013. The trial court conducted a hearing. On April 24, 2014, it denied

the petition. On May 21, 2014, Appellant filed a notice of appeal and this

Court affirmed on February 11, 2015.       Commonwealth v. Greeley, No.

835 WDA 2014 (Pa.Super. filed Feb 11, 2015) (unpublished memorandum).

On March 12, 2015, Appellant filed a petition for allowance of appeal to the

Supreme Court of Pennsylvania.

      On August 7, 2014, while his appeal of the order denying his first

PCRA petition was pending in this Court, Appellant filed a motion seeking

clarification of sentence.   On August 21, 2014, the trial court denied this

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motion, finding clarification was not needed and it could not award credit for

time spent while serving another sentence. Appellant filed a notice of appeal

on September 22, 2014.7

       Appellant raises the following issues on appeal:

          1. Contrary to 42 Pa.C.S. § 9760, the [c]ourt failed to
          properly clarify its sentencing order.

          2. The [c]ourt’s decision on the request for sentence
          clarification was not based upon the record.

Appellant’s Brief at 6.

       Appellant’s motion seeking clarification claimed the trial court failed to

give Appellant credit for time served from August 2010 to October 2011.

Appellant acknowledged the sentence was not “patently illegal,” but argued

the trial court should view the failure to provide credit as a patent error,

which it asked the trial court to use its inherent power to correct.      Motion

Seeking Clarification of Sentence (“Motion”), at 3.         It referenced, and

attached as an exhibit, the trial court’s sentencing order, which stated the

sentence “shall run concurrent to the Fayette County sentences at No. 1145

of 2010, Counts 1 and 4, and No. 1395 of 2010, Count 2, and concurrent

with the Allegheny County sentences at No. 4930 of 2009, Counts 1 and 2,

and 15573 of 2009.”         Motion, at ¶ 2, 5; Order, 10/31/2011.   The motion

seeking clarification also cites 42 Pa.C.S. § 9760, which provides:
____________________________________________


7
  Thirty days from August 21, 2014, was Saturday, September 20, 2014.
Appellant timely filed his notice of appeal on the next business day, Monday,
September 22, 2014.



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          (1) Credit against the maximum term and any minimum
          term shall be given to the defendant for all time spent in
          custody as a result of the criminal charge for which a
          prison sentence is imposed or as a result of the conduct on
          which such a charge is based. Credit shall include credit for
          time spent in custody prior to trial, during trial, pending
          sentence, and pending the resolution of an appeal.

                                           ...

          (4) If the defendant is arrested on one charge and later
          prosecuted on another charge growing out of an act or
          acts that occurred prior to his arrest, credit against the
          maximum term and any minimum term of any sentence
          resulting from such prosecution shall be given for all time
          spent in custody under the former charge that has not
          been credited against another sentence.

Motion at ¶ 6; 42 Pa.C.S. § 9760 (1), (4). Appellant appeared to argue that,

because the October 31, 2011 sentence, imposed at No. CP-26-CR-

0000133-2009, was to run concurrent to all other sentences, the October

31, 2011 sentencing order should have awarded credit for time served from

August 2010 through the date of the sentencing on October 31 2011.8

Motion at ¶ 4-7.
____________________________________________


8
  Appellant’s motion for clarification appears to argue there is an ambiguity
in the sentence imposed. His appellate brief, however, argues that “there is
a patent error of law” and Appellant was entitled, as a matter of law, to
credit for time spent in custody from November 18, 2010 to October 21,
2011. Appellant’s Brief at 9-12. His brief argues this, even though his
motion seeking clarification sought credit for time spent in custody from
August 2010 through October 2011 and even though the motion stated the
sentence was not “patently illegal.” See Motion.

This Court has clarified the different claims a prisoner may raise regarding
credit for time served and the mechanisms for raising such claims:

(Footnote Continued Next Page)


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        The trial court lacked jurisdiction to address Appellant’s motion for

clarification.   Pennsylvania Rule of Appellate Procedure 1701(a) provides:

“Except as otherwise prescribed by these rules, after an appeal is taken or

review of a quasijudicial order is sought, the trial court or other government

unit may no longer proceed further in the matter.”      The exceptions to Rule

1701(a) are inapplicable.9

                       _______________________
(Footnote Continued)

          If the alleged error is thought to be the result of an
          erroneous computation of sentence by the Bureau of
          Corrections, then the appropriate vehicle for redress would
          be an original action in the Commonwealth Court
          challenging the Bureau’s computation. If, on the other
          hand, the alleged error is thought to be attributable to
          ambiguity in the sentence imposed by the trial court, then
          a writ of habeas corpus ad subjiciendum lies to the trial
          court for clarification and/or correction of the sentence
          imposed.

          It [is] only when the petitioner challenges the legality of a
          trial court’s alleged failure to award credit for time served
          as required by law in imposing sentence, that a challenge
          to the sentence [is] deemed cognizable as a due process
          claim in PCRA proceedings.

Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa.Super.2014) (quoting
Commonwealth v. Perry, 563 A.2d 511 (Pa.Super.1989)).

      The claim raised before the trial court, i.e., that there was an
ambiguity in the sentencing order that requires clarification from the trial
court, should be raised in a writ of habeas corpus. The claim raised on
appeal, that the sentence is illegal because the court failed to award credit
for time served, should be raised in a PCRA petition and is subject to the
PCRA time-bar limitations.
9
    Rule 1701 provides:

(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

           (b) Authority of a trial court or agency after appeal.
          After an appeal is taken or review of a quasijudicial order
          is sought, the trial court or other government unit may:

          (1) Take such action as may be necessary to preserve the
          status quo, correct formal errors in papers relating to the
          matter, cause the record to be transcribed, approved, filed
          and transmitted, grant leave to appeal in forma pauperis,
          grant supersedeas, and take other action permitted or
          required by these rules or otherwise ancillary to the appeal
          or petition for review proceeding.

          (2) Enforce any order entered in the matter, unless the
          effect of the order has been superseded as prescribed in
          this chapter.

          (3) Grant reconsideration of the order which is the subject
          of the appeal or petition, if:

          (i) an application for reconsideration of the order is filed in
          the trial court or other government unit within the time
          provided or prescribed by law; and

          (ii) an order expressly granting reconsideration of such
          prior order is filed in the trial court or other government
          unit within the time prescribed by these rules for the filing
          of a notice of appeal or petition for review of a quasijudicial
          order with respect to such order, or within any shorter
          time provided or prescribed by law for the granting of
          reconsideration.

                                            ...

          (4) Authorize the taking of depositions or the preservation
          of testimony where required in the interest of justice.

          (5) Take any action directed or authorized on application
          by the appellate court.

          (6) Proceed further in any matter in which a non-
          appealable interlocutory order has been entered,
          notwithstanding the filing of a notice of appeal or a petition
          for review of the order.
(Footnote Continued Next Page)


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      Appellant’s appeal of the order denying his first PCRA petition was

pending on August 7, 2014, when he filed his motion for clarification, and on

August 21, 2014, when the trial court issued its order. Accordingly, the trial

court lacked jurisdiction to address the motion.

      Order vacated. Case remanded. Jurisdiction relinquished.




                       _______________________
(Footnote Continued)

          (c) Limited to matters in dispute. Where only a
          particular item, claim or assessment adjudged in the
          matter is involved in an appeal, or in a petition for review
          proceeding relating to a quasijudicial order, the appeal or
          petition for review proceeding shall operate to prevent the
          trial court or other government unit from proceeding
          further with only such item, claim or assessment, unless
          otherwise ordered by the trial court or other government
          unit or by the appellate court or a judge thereof as
          necessary to preserve the rights of the appellant.

          (d) Certain petitions for review. The filing of a petition
          for review (except a petition relating to a quasijudicial
          order) shall not affect the power or authority of the
          government unit to proceed further in the matter but the
          government unit shall be subject to any orders entered by
          the appellate court or a judge thereof pursuant to this
          chapter.

Pa.R.A.P. 1701(b)-(d).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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