J-S53044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE SHABARA                               :
                                               :
                       Appellant               :   No. 1185 EDA 2019

               Appeal from the Order Entered March 25, 2019
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0004065-2016


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 22, 2020

       Appellant Jose Shabara appeals pro se from the order denying his

motion for reconsideration of his request for time credit. For the reasons that

follow, we quash.

       On October 26, 2016, Appellant was charged with theft and related

offenses in the instant case after he stole cash from a Piercing Pagoda inside

the Coventry Mall. At the time of his arrest, Appellant was on parole on a

2007 case in Philadelphia County.1 See Docket No. 7662-2007.

       On May 24, 2017, Appellant, who was represented by counsel, entered

a negotiated guilty plea to criminal trespass and criminal attempt—theft by
____________________________________________


1 The record contains a sentence status summary from the Pennsylvania
Department of Corrections (DOC), which indicates that Appellant was on
parole for the case at Docket No. 7662-2007 at the time of his sentencing.
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unlawful taking.2 Appellant executed a written guilty plea colloquy in which

he acknowledged that no promises were made to him beyond the terms of his

negotiated plea. See Written Guilty Plea Colloquy, Docket No. 4065-2016, at

6. Specifically, Appellant agreed to a negotiated sentence of two to five years’

incarceration plus one year of probation for criminal trespass and a

consecutive term of three years’ probation for theft.      Id. at 3.   The plea

agreement did not reference Appellant’s probation violation and did not

indicate that his new sentence would run concurrent to any backtime. At the

plea hearing, counsel explained to the trial court that Appellant had a violation

in New Jersey3 that would add “probably another year, year and a half” to his

sentence, but noted that “[t]he Commonwealth took that into consideration.”

See N.T. Sentencing Hr’g, 5/24/17, at 10. Ultimately, the trial court imposed

the agreed-upon sentence and ordered credit for time served.4 Appellant did

not file timely post-sentence motions or take a direct appeal.

        On November 17, 2017, the trial court docketed Appellant’s first pro se

filing. Appellant asked the trial court to modify his negotiated sentence in the

instant case to run concurrent with his backtime at Docket No. 7662-2007.

____________________________________________


2   18 Pa.C.S. §§ 3503(a)(1)(i), 901(a), and 3925(a), respectively.

3 Counsel correctly indicated that Appellant was on parole and subject to
backtime. However, counsel incorrectly stated that Appellant was on parole
from a New Jersey case, rather than the parole sentence at Docket No. 7662-
2007.

4 The record indicates that Appellant did not satisfy bail and remained in
custody pending the disposition of his new charges.

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See Mot. for Modification of Sentence, 11/17/17. That same day, the trial

court denied Appellant’s request and indicated that Appellant was “serving a

state sentence over which [the trial court] no longer [had] jurisdiction.” See

Order Denying Mot. for Modification, 11/17/17, at 1.

          On February 5, 2019, the trial court docketed Appellant’s second pro se

filing.    Appellant claimed that the Pennsylvania Department of Corrections

(DOC) failed to give him “the time credit that [the trial court] ordered to run

concurrent with [Appellant’s] state parole time.” Case Correspondence re:

Time Credit, 2/5/19. He requested that the trial court order the DOC to apply

his time credit to his state parole backtime. See id. On February 7, 2019,

the trial court denied Appellant’s request, stating that it did not have

jurisdiction over the DOC or the Pennsylvania Board of Probation and Parole.

See Order Re: Credit for Time, 2/7/19.

          On March 8, 2019, the trial court docketed Appellant’s third pro se filing.

Appellant asked the trial court to reconsider his previous request for an order

relating to his time credit. See Req. for Recons., 3/8/19. Appellant argued

that the DOC had improperly stopped the time of his judicially imposed

sentence, and that his credit for time served “should be running” with his

backtime. Id.

          The trial court denied Appellant’s motion on March 25, 2019. See Order

Denying Req. for Recons., 3/25/19.

          On April 15, 2019, the trial court docketed Appellant’s pro se notice of

appeal. On April 18, 2019, the trial court ordered Appellant to file a Pa.R.A.P.

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1925(b) statement, and Appellant timely complied. 5 On May 16, 2019, the

trial court issued an order in lieu of a Rule 1925(a) opinion. The trial court

stated that “[b]ecause the March 25, 2019 order denying reconsideration is

not reviewable, the Superior Court lacks jurisdiction to consider it. As such,

[Appellant’s] appeal from the denial of reconsideration must be quashed.”

See Trial Ct. Order in Lieu of 1925(a) Op., 5/16/19, at 1.

       On appeal, Appellant raises two issues.6 First, Appellant argues that the

trial court should have treated his first pro se filing as a motion to modify his

sentence nunc pro tunc. Appellant’s Brief at 12. Appellant claims that he

“expressed facts that would lead [the trial court] to infer [that] he felt he did

not get the benefit of his negotiated plea bargain.” Id. Specifically, he asserts

that his plea agreement provided “that his new sentence would run

concurrent[] with his backtime.” Id. at 7. Appellant states because the plea

agreement was illegal under 61 Pa.C.S. § 6138, it “constituted a showing of

extrinsic fraud” which extended the trial court’s jurisdiction to modify its

sentencing order after the thirty-day period set forth in 42 Pa.C.S. § 5505.

Id. at 13.



____________________________________________


5Appellant’s Rule 1925(b) statement was docketed by the trial court on April
15, 2019.

6For purposes of clarity, we summarize Appellant’s claims. The full summary
of Appellant’s arguments can be found in his brief. See Appellant’s Brief at
4-5.


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      Second, Appellant notes that “the trial court addressed the merits of the

order denying [his] request for modification of sentence nunc pro tunc” in its

Rule 1925(a) opinion. Id. at 16. Therefore, he argues that we should decline

to quash the appeal and address the merits of his claims. Id. at 15.

      Before reaching the merits, we must determine whether we have

jurisdiction over this appeal. See Commonwealth v. Horn, 172 A.3d 1133,

1135 (Pa. Super. 2017) (stating that appellate courts may consider the issue

of jurisdiction sua sponte). “Jurisdiction is vested in the Superior Court upon

the filing of a timely notice of appeal.” Commonwealth v. Green, 862 A.2d

613, 615 (Pa. Super. 2004) (en banc) (citation omitted). In criminal cases,

an appeal generally lies from “the entry of the final judgment of sentence.”

Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa. Super. 2005).

      “In a criminal case in which no post-sentence motion has been filed, the

notice of appeal shall be filed within [thirty] days of the imposition of the

judgment of sentence in open court.” Pa.R.A.P. 903(c)(3). If no appeal is

taken, the trial court has “the power to alter or modify a criminal sentence

within thirty days after entry.” Commonwealth v. Walters, 814 A.2d 253,

255 (Pa. Super. 2002) (citing, inter alia, 42 Pa.C.S. § 5505). “Generally, once

the thirty-day period is over, the trial court loses the power to alter its orders.”

Id. (citation omitted). However, our Supreme Court has recognized a limited

exception to Section 5505: the trial court’s “inherent jurisdiction to correct

obvious and patent errors in its orders,” outside of the thirty-day time period




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imposed by section 5505. Commonwealth v. Holmes, 933 A.2d 57, 66-67

(Pa. 2007) (plurality).

      “Pennsylvania courts have consistently held, so long as a pleading falls

within the ambit of the PCRA, the court should treat any pleading filed after

the judgment of sentence is final as a PCRA petition.” Commonwealth v.

Torres, ___ A.3d ___, 2019 WL 6270758 at *1 (Pa. Super. filed Nov. 25,

2019) (citations omitted). “It is well-settled that the PCRA is intended to be

the sole means of achieving post-conviction relief. Unless the PCRA could not

provide for a potential remedy, the PCRA statute subsumes the writ of habeas

corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)

(citations omitted). However, “[t]he content of the motion—just exactly what

is pled and requested therein—is relevant to deciding whether to treat the

motion as a collateral petition.” Commonwealth v. Wrecks, 931 A.2d 717,

720 (Pa. Super. 2007) (Wrecks I); see also Torres, ___ A.3d at ___, 2019

WL 6270758 at *2 (treating the defendant’s motion to modify his sentence,

filed years after sentencing, as an untimely post-sentence motion instead of

a PCRA petition). In Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa.

Super. 2014), we reiterated that challenges to the DOC’s sentencing

calculation are not cognizable under the PCRA. Specifically, we explained:

      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


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       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.

Heredia, 97 A.3d at 395 (citation omitted).

       Here, the trial court sentenced Appellant on May 24, 2017. Appellant

did not file a timely post-sentence motion or a direct appeal. In his pro se

filings, which were docketed after the thirty-day appeal deadline, Appellant

asked the trial court to (1) modify his sentence to run concurrent with his

backtime, and (2) apply the time credit awarded in the instant case to his

backtime. Neither of these claims are cognizable under the PCRA. 7,8 See
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7  Further, both of Appellant’s claims sought an illegal sentence.       See
Commonwealth v. Kelly, 136 A.3d 1007, 1013-14 (Pa. Super. 2016)
(stating that “where a state parolee gets a new state sentence, he must serve
his backtime first before commencement of the new state sentence.
Imposition of a new state sentence concurrent with parolee’s backtime on the
original state sentence is an illegal sentence” under 61 Pa.C.S. §
6138(a)(5)(i)); see also Commonwealth v. Mann, 957 A.2d 746, 751 (Pa.
Super. 2008) (stating that where a “defendant is incarcerated prior to
disposition, and has both a detainer and has failed for any reason to satisfy
bail, the credit must be applied to the new sentence by the sentencing court”
(citations omitted)).

8In his brief, Appellant argues that the trial court should have inferred “that
he felt he did not get the benefit of his negotiated plea bargain.” Appellant’s
Brief at 12. He challenges the validity of his plea and asserts that it was based
on a “void promise” that his new sentence would run concurrent with his
backtime. Id. at 15-16. Although these issues are cognizable under the
PCRA, because Appellant raised them for the first time on appeal, they are
waived. See Pa.R.A.P. 302(a).




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Heredia, 97 A.3d at 395; see also Torres, ___ A.3d at ___, 2019 WL

6270758 at *2. Further, neither issue relates to a calculation error by the

DOC, or any error that could be “attributable to ambiguity in the sentence

imposed by the trial court.”9 See Heredia, 97 A.3d at 395. Therefore, the

trial court properly concluded that it lacked jurisdiction to grant relief.

       Finally, Appellant sought the same relief in both his second and third pro

se filings. As such, the trial court properly treated Appellant’s third pro se

filing as an untimely motion for reconsideration of the February 7, 2019 order

denying his request for an order relating to time credit.       Further, because

Appellant’s motion for reconsideration was untimely, it did not toll the appeal

period for him to challenge the trial court’s February 7, 2019 order.         See

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000) (reiterating

that an untimely motion for reconsideration does not toll the appeal period).

Therefore, Appellant’s April 15, 2019 notice of appeal was untimely. See id.

Accordingly, we quash.

       Appeal quashed.

       Judge Olson concurs in the result.

       Judge Stabile concurs in the result.




____________________________________________


9 The trial court’s sentencing order accurately reflects the terms of the plea
agreement that were stated at the hearing and set forth in Appellant’s written
colloquy.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/20




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