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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
LESTER LEE TUCKER,                          :
                                            :
                          Appellant         :     No. 1046 EDA 2014


                      Appeal from the Order March 6, 2014
                In the Court of Common Pleas of Monroe County
               Criminal Division No(s).: CP-45-CR-0000876-2012

BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 10, 2015

        Appellant, Lester Lee Tucker, appeals from the order entered in the

Court of Common Pleas of Monroe County denying his request for sentencing

credit.1 Appellant presently claims the trial court erred in denying credit for

time he spent in pre-sentence custody in the above-captioned matter while

also serving a sentence on federal charges. For the reasons that follow, we

conclude Appellant’s request for relief must be considered under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.          Therefore, we




*
    Former Justice specially assigned to the Superior Court.
1
  We have amended the caption to reflect that Appellant took this appeal
from the trial court’s March 6, 2014 order denying sentencing credit.
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vacate the trial court’s March 6, 2014 order and remand for proceedings

consistent with this memorandum.

     The procedural history relevant to this appeal is as follows. In August

of 2010, Appellant was charged with federal drug offenses, but was released

on his own recognizance. While those charges were pending, Appellant was

involved in a motor vehicle accident on March 20, 2012, which resulted in

the death of the operator of another vehicle. That same day, Pennsylvania

State Police troopers arrested and charged him with, inter alia, homicide by

vehicle and driving under the influence of alcohol (“Pennsylvania charges”).

Appellant did not post bail on the Pennsylvania charges. The following day,

March 21, 2012, federal authorities issued a detainer against him for the

federal charges.

     On July 12, 2012, Appellant pleaded guilty to the federal charges. On

January 16, 2013, the United States District Court for the Middle District of

Pennsylvania sentenced him to fifteen months’ imprisonment and three

years’ supervised release (“federal sentence”).   There is no indication that

Appellant was transferred to federal custody.

     Meanwhile, Appellant retained different counsel (“plea counsel”) for

the Pennsylvania charges.    On February 22, 2013, Appellant entered an

open guilty plea to charges of involuntary manslaughter and driving under




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the influence.2    On May 7, 2013, the trial court imposed an aggregate

sentence of thirty-three to sixty-six months’ imprisonment, with credit for

302 days.3

        Appellant, on May 20, 2013, filed a post-sentence motion seeking

modification of his sentence.4 The trial court, on June 6, 2013, resentenced

him to an aggregate thirty to sixty months’ imprisonment (“Pennsylvania

sentence”). The court did not state whether the Pennsylvania sentence was

concurrent or consecutive to the federal sentence. Appellant did not take a

direct appeal.

        The trial court received Appellant’s pro se motion seeking additional

credit on his Pennsylvania sentence on January 22, 2014—more than seven

months after resentencing. The trial court concluded plea counsel remained

counsel of record and forwarded the motion to plea counsel. Order, 1/28/14

(citing Pa.R.Crim.P. 576(A)(4)).   Plea counsel filed a counseled motion for


2
    18 Pa.C.S. § 2504; 75 Pa.C.S. § 3802(c).
3
 The 302 days credit, when calculated from Appellant’s arrest date of March
20, 2012, would account for the time Appellant was in custody until January
16, 2013, the date of the federal sentence.
4
  Appellant’s May 20, 2013 post-sentence motions were technically untimely.
See Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en
banc) (holding the ten-day period for filing post-sentence motion in
Pa.R.Crim.P. 720(A)(1) refers to date sentence was pronounced and not
date sentence was entered on docket). However, the trial court’s modified
sentence of June 6, 2012, was entered within thirty days of its initial
sentence. See 42 Pa.C.S. § 5505. This anomaly in the record does not
affect our disposition.



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time credit on February 19, 2014, asserting Appellant remained in

Pennsylvania’s custody since his March 20, 2012 arrest and did not serve

any part of his federal sentence under federal supervision. Appellant’s Mot.

for Time Credit, 2/19/14, at ¶ 10.      He claimed he was entitled to an

additional 111 days credit on the Pennsylvania sentence from January 16,

2013, to May 7, 2013—that is, from the date the federal sentence was

imposed to the original sentencing date on the Pennsylvania charges. 5 Id.

     The court, on March 6, 2014, entered the instant order denying

Appellant’s counseled motion,6   but amending its sentence to state it was

consecutive to the federal sentence. Fifteen days later, on March 31, 2014,

plea counsel petitioned the court to withdraw from representation, averring

Appellant continued to file pro se post-sentence motions for which plea

counsel had not been retained.




5
  Plea counsel also suggested he did not argue the question of credit at the
time of sentencing because documentation regarding the federal sentence
was not available. Appellant’s Mot. for Time Credit at ¶ 9.
6
  The trial court attached to its order a letter sent to it from Rebecca
Harmar, a probation officer, “in response to [Appellant’s motion for credit].”
Letter from Rebecca Harmar, 2/24/14. Ms. Harmar averred that the Monroe
County Probation Department did not concur with Appellant’s request for
credit. Id. She suggested that the court amend its sentencing order and
recommended that the Pennsylvania sentence be ordered to run
consecutively to the federal sentence because “the two cases [were] wholly
unrelated and occurred nearly two years apart from one another.” Id.
Neither the letter nor the record indicate that the letter was distributed to
the parties before the court ruled on Appellant’s motion.



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     On April 2, 2014, Appellant filed a timely pro se notice of appeal from

the March 6, 2014 order. On April 15, 2014, the trial court issued an order

requiring the filing of a Pa.R.A.P. 1925(b) statement. On April 28, 2014, the

court granted plea counsel’s motion to withdraw.    The following day, April

29th, Appellant’s pro se Rule 1925(b) statement was stamped for first class

postage to the court. See Copestakes v. Reichard-Copestakes, 925 A.2d

874, 875 n.2 (Pa. Super. 2007) (discussing prisoner mailbox rule).

Appellant subsequently obtained new appellate counsel through the Office of

the Public Defender. This appeal followed.

     Appellant, in the counseled brief submitted in this appeal, presents the

following question for review: “Whether [he] should be given time credit

against his state sentence for the time he spent serving his federal sentence

when he had [a]lways remained housed in a state correctional facility?”

Appellant’s Brief at 4.   Before considering this issue, however, we must

consider the procedures under which the trial court considered Appellant’s

pro se motion filed more than seven months after resentencing.

     It is well settled that

        the PCRA provides the sole means for obtaining collateral
        review, and that any petition filed after the judgment of
        sentence becomes final will be treated as a PCRA petition.
        . . . Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.
        Super. 2004) (holding collateral challenge to legality of
        sentence for failure to credit for time served must be
        brought under the PCRA); Commonwealth v. Guthrie,
        749 A.2d 502, 503 (Pa. Super. 2000) (holding motion to
        correct illegal sentence would be treated as PCRA petition



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         where the appellant did not file timely post-sentence
         motions or a direct appeal).

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (some

citations and punctuation omitted).

      Instantly, the underlying judgment of sentence became final on July 8,

2013, when Appellant did not take a direct appeal from the June 6th

resentencing order.7    See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).

Accordingly, Appellant’s pro se motion seeking credit, filed January 21,

2014, should have been regarded as a pro se PCRA petition. See Fowler,

930 A.2d at 591, 597.    Moreover, because Appellant filed his pro se motion

within one year of his conviction becoming final, it was timely under PCRA.

See 42 Pa.C.S. § 9545(b)(1), (3).

      Because Appellant’s pro se motion constituted a PCRA petition, the

procedures for post-conviction collateral proceedings in Chapter 9 of the

Pennsylvania Rules of Criminal Procedure applied, including the right to

counsel. See Pa.R.Crim.P. 904.

         While the right to legal representation in the PCRA context
         is not constitutionally derived, the importance of that right
         cannot be diminished merely due to its rule-based
         derivation. In the post-conviction setting, the defendant
         normally is seeking redress for trial counsel’s errors and
         omissions.     Given the current time constraints of 42
         Pa.C.S. § 9545, a defendant’s first PCRA petition, where
         the rule-based right to counsel unconditionally attaches,

7
  Because the thirtieth day following resentencing fell on Saturday, the
deadline for filing a timely direct appeal was the following Monday, i.e., July
8, 2013. See 1 Pa.C.S. § 1908.



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           may well be the defendant’s sole opportunity to seek
           redress for such errors and omissions. Without the input
           of an attorney, important rights and defenses may be
           forever lost.

Commonwealth v. Robinson, 970 A.2d 455, 458-59 (Pa. Super. 2009) (en

banc).

     We conclude the trial court erred by proceeding outside of the

framework of the PCRA and forwarding Appellant’s pro se motion to plea

counsel.     See Fowler, 930 A.2d at 591; accord Commonwealth v.

Wright, 846 A.2d 730, 733-34 (Pa. Super. 2004) (reiterating trial court

should not entertain post-sentence motions when they are clearly untimely

and right to file post sentence motions has not been restored nunc pro

tunc). Although the trial court technically provided counsel, Appellant was

entitled to PCRA counsel. See Pa.R.Crim.P. 904(C). Moreover, the court did

not comply with the procedures for deciding a PCRA petition, see

Pa.R.Crim.P. 907, but rather treated Appellant’s motion as if it were part of

the underlying criminal proceeding.

     Accordingly, we decline to reach the merits of the present appeal, but

vacate the trial court’s March 6, 2014 order and remand this matter. The

trial court shall regard Appellant’s pro se motion as a PCRA petition and

comply with the procedures set forth in Chapter 9 of the Rules of Criminal

Procedure.

     Order vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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