J-S25025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIC JAMES LOPEZ

                            Appellant                 No. 1224 WDA 2015


                    Appeal from the PCRA Order July 7, 2015
                 In the Court of Common Pleas of Potter County
              Criminal Division at No(s): CP-53-CR-0000011-2013

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                              FILED MARCH 21, 2016

        Appellant, Eric James Lopez, appeals from the July 7, 2015 order

denying his first petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        The PCRA court set forth the procedural history of this case in its

Pennsylvania Rule of Criminal Procedure 907 notice of intention to dismiss

the PCRA petition as follows.

                    On March 6, 2014[,] [Appellant] pled guilty to
              one count of simple assault and one count of
              recklessly endangering another person [(REAP)][1]
              and was subsequently sentenced to an aggregate
              sentence of 38 to 76 months with credit for 461 days
              served. Upon the [trial] [c]ourt learning that the
              sentence exceeded the permissible maximum the
              March 6, 2014 plea was revoked and the Sentencing
____________________________________________


1
    18 Pa.C.S.A. §§ 2701(a) and 2705, respectively.
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            Order rescinded. On March 11, 2014, [Appellant]
            again pled guilty to one count of simple assault and
            one count of [REAP] and was subsequently
            sentenced to an aggregate sentence of 24 to 48
            months with no credit for time served. Several times
            during the March 11, 2014 plea preceding [sic] the
            [trial] [c]ourt made certain that [Appellant]
            understood that he would receive no credit for time
            served. Each time the [trial] [c]ourt made such an
            inquiry [Appellant] indicated he understood.

                  Subsequently, [Appellant] filed a Notice of
            Appeal on April 7, 2014, raising the issue of whether
            [the trial] [c]ourt abused its discretion by not giving
            [Appellant] credit for time served. On December 22,
            2014 the Superior Court issued a decision affirming
            [Appellant’s] sentence without credit for time served.
            [Commonwealth v. Lopez, 116 A.3d 696 (Pa.
            Super.      2014)     (unpublished      memorandum).
            Appellant did not file a petition for allowance of
            appeal with our Supreme Court.] On December 23,
            2014 [Appellant] filed a timely first PCRA Petition
            raising the issues of his failure to receive credit for
            time served and that he did not agree with the
            amount of restitution.

PCRA Court Rule 907 Notice of Intention to Dismiss, 6/16/15, at 1-2.

     On February 25, 2015, the PCRA court appointed counsel.          On June

16, 2015, the PCRA court issued the Rule 907 notice of its intention to

dismiss.   Appellant did not respond, and on July 7, 2015, the PCRA court

dismissed the petition without a hearing.     Thereafter, on July 23, 2015,




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Appellant filed a motion for reconsideration, which the trial court denied on

July 30, 2015. Appellant filed a timely notice of appeal on August 4, 2015.2

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

              Should the [C]ourt reverse and remand the Potter
              County Trial Court of Common Pleas and find the
              trial court erred as a matter of law in:

                     a. Failing to permit a hearing on [Appellant’s]
                        first PCRA petition[]?

Appellant’s Brief at 7.

       Appellant’s argument is limited to his contention that the PCRA court

erred in dismissing his first, timely PCRA petition without a hearing. Id. at

8.   Specifically, Appellant argues that the PCRA court denied his “due

process rights to be heard … since appointed counsel was never permitted to

present the properly preserved issues to the tribunal[.]” Id. at 12.

              We begin by noting our well-settled standard of
              review. In reviewing the denial of PCRA relief, we
              examine whether the PCRA court’s determination is
              supported by the record and free of legal error. The
              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 trial
              level. It is binding upon an appellate court so long
              as they are supported by the record. However, this
              Court reviews the PCRA court’s legal conclusions de
              novo.
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2
   The PCRA court did not direct Appellant to file a Pennsylvania Rule of
Appellate Procedure 1925(b) concise statement. Nonetheless, Appellant
filed a Rule 1925(b) statement on September 3, 2015. That same day, the
PCRA court issued an opinion noting that the June 16, 2015 Rule 907 notice
contained its reasons for dismissing Appellant’s PCRA petition.



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            We also note that a PCRA petitioner is not
            automatically entitled to an evidentiary hearing. We
            review the PCRA court’s decision dismissing a
            petition without a hearing for an abuse of discretion.

                  [T]he right to an evidentiary hearing on a post-
                  conviction petition is not absolute. 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.              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 material fact in controversy and in
                  denying      relief   without    conducting     an
                  evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and internal quotation marks omitted).     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 in section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2).

These errors include the legality of the sentence. Id. § 9543(a)(2)(vii). The

issues raised in a PCRA petition must be neither previously litigated nor

waived. Id. § 9543(a)(3).

      Here, Appellant’s PCRA petition contained two grounds for relief.

Appellant’s PCRA Petition, 12/23/14, at 2-3. Specifically, Appellant asserted

that the trial court failed to award credit for time served and that the trial

court imposed an incorrect amount of restitution. Id. at 3.

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      Turning to Appellant’s first claim regarding the trial court’s alleged

failure to award credit for time served, we initially note that such a claim is a

challenge to the legality of Appellant’s sentence and is cognizable under the

PCRA. Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014),

appeal denied, 104 A.3d 524 (Pa. 2014). Appellant previously litigated the

issue of time served on direct appeal. See Lopez, supra at 6 (concluding

that Appellant understood that he was not receiving credit for time served as

part of his plea and that his sentence was lawful). Therefore, Appellant is

not eligible for PCRA relief on the issue of credit for time served because it

was previously litigated.     See 42 Pa.C.S.A. § 9543(a)(3). Accordingly, we

conclude the PCRA court did not err or abuse its discretion in dismissing this

issue without conducting an evidentiary hearing. See Miller, supra.

      Appellant’s second basis for relief in his PCRA petition was the bald

assertion   that   “[he]   still   dident    [sic]   agree   with   the   restitution[.]”

Appellant’s Motion for Post Conviction Collateral Relief, 12/23/14, at 3.              A

claim that the amount of restitution is excessive involves a discretionary

aspect of sentencing. See In re M.W., 725 A.2d 729, 731 n.4 (Pa. 1999)

(explaining that a challenge to the trial court’s authority to impose

restitution implicates the legality of the sentence, but an argument that the

restitution order is excessive is a discretionary aspect). Bald challenges to




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the discretionary aspects of a sentence are not cognizable under the PCRA.3

Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013).

Therefore, Appellant is not eligible for PCRA relief on his restitution issue,

and the PCRA court did not err or abuse its discretion in dismissing his

petition without an evidentiary hearing.4 See Miller, supra.

       Based on the foregoing, we conclude that the PCRA court did not err or

abuse its discretion in dismissing Appellant’s PCRA petition without an

evidentiary hearing as the record reflects Appellant has not raised a genuine

issue of material fact. See id. Accordingly, the PCRA court’s July 7, 2015

order is affirmed.

       Order affirmed.




____________________________________________


3
   Appellant has not framed his discretionary aspects claim as an
ineffectiveness of counsel argument, so it is not cognizable under the PCRA.
See Taylor, supra at 467 n.4 (recognizing that a discretionary aspects
claim presented as the underlying reason for counsel’s ineffectiveness is
cognizable under the PCRA).
4
  We note that our decision does not foreclose Appellant’s ability to file a
motion to modify the amount of restitution under Section 1106 of the Crimes
Code, 18 Pa.C.S.A. §§ 101-9402, because Section 1106 “permit[s] a
defendant to seek a modification or amendment of the restitution order at
any time directly from the trial court.” Commonwealth v. Stradley, 50
A.3d 769, 772 (Pa. Super. 2012); see also Commonwealth v. Gentry,
101 A.3d 813, 816 (Pa. Super. 2014) (stating Section 1106 “creates an
independent cause of action for a defendant to seek modification of an
existing restitution order”), citing Stradley, supra and 18 Pa.C.S.A.
§ 1106(c)(3).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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