J-S74024-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                          1    IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA
                           Appellee

                      v.

TARIK SAUNDERS

                           Appellant                            No. 34 EDA 2016


            Appeal from the Judgment of Sentence January 11, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP- 51 -CR- 0511531 -2005
                             CP- 51 -CR- 1000241 -2003


BEFORE:     OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                        FILED January 17, 2017

        Tarik Saunders appeals, nunc     pro tunc,        from the judgment of sentence

imposed on January 11, 2013, in the Philadelphia County Court of Common

Pleas, after he was granted reinstatement of his direct appeal rights under

the Post -Conviction Relief Act        ( "PCRA ").1        Following the revocation of

Saunders' probation in two cases, the trial court imposed an aggregate term

of 54 to 120 months' incarceration, with two years of consecutive probation.

On appeal, Saunders challenges the discretionary aspects of his violation of

probation sentence, as well as the court's failure to give him credit for time

served.    He also contends the PCRA court abused its discretion in denying


*   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541 -9546.
J-S74024-16



him the right to file post- sentence motions nunc pro   tunc.   For the reasons

below, we vacate the order granting PCRA relief, and remand for an

evidentiary hearing.

        The relevant facts and procedural history were aptly summarized by

the PCRA court as follows:

               [Saunders] was convicted under two separate bills of
        information that have been consolidated for this appeal, a 2003
        gun case (CP- 51 -CR- 1000241 -2003) and a 2005 drug case (CP-
        51-CR- 0511531 -2005).     In the first case, [Saunders] was
        arrested on April 1, 2003, and charged with aggravated assault,
        violations of the Uniform Firearms Act, possessing the
        instruments of a crime, simple assault, terroristic threats and
        recklessly endangering another person [( "REAP ")]. On February
        26, 2004, Saunders pled guilty to carrying a firearm without a
        license and [REAP2] before now retired Judge Chris Wogan.
        [Saunders] was sentenced to [four years' probation] for the
        violation of the Uniform Firearms Act, and two years
        [concurrent] probation for [REAP].
               Probation wanted cards were issued March 31, 2005.
        [Saunders] was subsequently sentenced to four years probation
        for that violation on May 5, 2009. A month later, on June 12,
        2009, a bench warrant was once more issued for probation
        violations; however[,] Saunders' probation was continued by the
        court on December 18, 2009.           New technical and direct
        violations were again alleged and a hearing was held on
        November 14, 2012. [Saunders] was found to have violated his
        probation for failing to report as well as his new convictions in
        Delaware County for resisting arrest and providing false
        identification to law enforcement. As a result, a Pre -Sentence
        Investigation was ordered. On January 11, 2013, Saunders was
        sentenced to six to twenty -three months in a state correctional
        system[, plus two years' probation], consecutive to his drug case
        sentence.


2   18 Pa.C.S. §§ 6106 and 2705, respectively.




                                      -2
J-S74024-16


               [Saunders'] second case is a drug case with an arrest date
        of March 4, 2005, wherein Saunders was charged with
        possessing a controlled substance with intent to deliver, along
        with knowing and intentional possession of that drug. Saunders
        entered a no/o contendere plea before now retired Judge Wogan
        on July 19, 2005, and was sentenced to nine to twenty -four
        months incarceration followed by four years probation. As noted
        above, Saunders was found in violation on May 5, 2009, and
        resentenced to four years probation.        Saunders was further
        found in technical and direct violation on November 14, 2012 for
        failing to report to probation as well as his new convictions in
        Delaware County. [Saunders] was subsequently resentenced to
        four to eight years incarceration followed by one year probation.
PCRA Court Opinion,       2/22/2016, at 2 -3.

        On January 25, 2013, Saunders filed a pro se post- sentence motion

seeking modification of his drug sentence.      However, it does not appear the

motion was ever considered by the trial court, and Saunders did not file              a

direct appeal. On November 5, 2013, Saunders filed         a    consolidated, pro se

PCRA    petition seeking relief from both the drug and gun convictions.             He

averred, inter a /ia,      that trial counsel "refused to         put    [an]   appeal,

reconsideration in for [him] because [counsel] said its (sic)      a    waste of time."

Motion for Post Conviction Collateral Relief, 11/5/2013, at 3.            Counsel was

appointed and filed   a    Turner/Finley3 "no merit" letter     on August 14, 2014.

While it appears the PCRA court initially denied     relief,4   at some point, new

counsel was appointed, and filed an amended petition on February 25, 2015,


3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4   See Order, 12/23/2014; Order, 2/3/2015.



                                         -3
J-S74024-16



which the PCRA court accepted.                New counsel raised one claim in the

amended petition, namely, that prior counsel was ineffective for failing to file

a   direct appeal when requested to do so by Saunders.                             See Amended

Petition Under Post -Conviction Relief Act, 2/25/2015, at 2; Memorandum of

Law, 2/25/2015, at 2.           In the prayer for relief, however, counsel requested

Saunders "be allowed to file post sentence motions and an appeal nunc pro

tunc[.]" Id.         In an order entered December 18, 2015, the PCRA court

reinstated Saunders' direct appeal rights nunc pro tunc, but specifically

denied his request to file       a   post- sentence motion. Order, 12/18/2015. This

timely nunc pro tunc appeal          followed.5

          We will address Saunders' last issue first, since his claim that the PCRA

court abused its discretion in denying his request to file post- sentence

motions nunc pro tunc is dispositive.

          In Commonwealth v. Liston, 977 A.2d                       1089         (Pa.   2009), the

Pennsylvania Supreme Court held that              a    defendant who        is   granted the right

to file    a   direct appeal nunc pro tunc,       is    not   automatically entitled to file
post- sentence motions nunc pro tunc.                  Nevertheless, the Court recognized

that reinstatement of       a    defendant's right to file post- sentence motions               is

warranted in some cases:


5 On January 4, 2016, the PCRA court ordered Saunders to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Saunders complied with the court's directive and filed                  a    concise statement
on January 15, 2016.



                                             -4
J-S74024-16


         Our holding should not be construed as prohibiting a PCRA court
         from reinstating a defendant's right to file post- sentence motions
         nunc pro tunc. If a defendant successfully pleads and proves
         that he was deprived of the right to file and litigate said motions
         as a result of the ineffective assistance of counsel, a PCRA court
         is free to grant such relief.    Presumably, since post- sentence
         motions are optional, see Pa.R.Crim.P. 720(B), rarely will
         counsel be deemed to have been ineffective for failing to file
         them except, for example, when the claim involves the
         discretionary aspects of sentence or a challenge to a verdict on
         weight of the evidence grounds, claims which must be raised in
         the trial court to be preserved for purposes of appellate review.
Id. at    1095 n.9. In interpreting        Liston,   a   panel of this Court explained that

a PCRA      petitioner may not be granted reinstatement of his post- sentence

motion rights "if he has not requested such relief with the PCRA court, and if

the     court     did   not   hold    an     evidentiary          hearing     on    that    issue."

Commonwealth v. Fransen, 986 A.2d 154, 155                                  (Pa.   Super. 2009).

Indeed, we also recognized that counsel's failure to file post- sentence

motions     is   not ineffectiveness per se; instead, "[a] petitioner alleging that

counsel was ineffective for failing to file              a    post- sentence motion must []

satisfy the Pierce three -part test for ineffectiveness." Commonwealth v.

Hill,       A.3d        1
                               2016   PA   Super 226, *4 (Pa. Super. Oct. 20, 2016).

         In the present case, the Commonwealth argues this claim                       is   waived

because Saunders "did not include it in the substantive portion of his PCRA

petition[,]" but rather, requested such relief only                  in   the "prayer for relief"

paragraph.        Commonwealth's Brief at 15.                It asserts, correctly, that    issues

not included in     a PCRA    petition are waived. Id.




                                              -5
J-S74024-16



          However, our review of the record reveals this claim was adequately

raised in Saunders' pro se PCRA petition.                      As noted above,              Saunders

averred, inter alia,             that trial counsel "refused to            put       [an]    appeal,

reconsideration in for me because he said its (sic)               a   waste of time." Petition

for Post Conviction Collateral Relief, 11/5/2013, at 3. This statement, at the

very      least,     implies     Saunders      requested     counsel     file    a    motion         for

reconsideration of sentence. Moreover, the Commonwealth ignores the fact

that Saunders did,              himself,    file   a    pro se post- sentence motion                 for

reconsideration of sentence, which was never addressed by the trial court.

Accordingly, we refuse to find Saunders waived this claim on appeal.

          Nonetheless, pursuant to Fransen, supra, Saunders is not entitled to

relief per se. Rather, he must demonstrate at an evidentiary hearing that he

requested          counsel     file   post- sentence motions,         that counsel           had      no

reasonable basis to refuse his request, and that he was prejudiced as                                  a

result.     See Hill, supra.           Accordingly, we vacate the order granting PCRA

relief, and remand for an evidentiary hearing concerning Saunders' request

to file post- sentence motions nunc pro tunc.

       We are also precluded from addressing Saunders'                   first issue on appeal,
a   challenge to the discretionary aspects of his sentence.                            It    is    well -

established that such             a   claim is considered     a   petition for permission to

appeal, and must be first presented to the trial court either during the




                                                   -6
J-S74024-16



sentencing hearing or in          a   post- sentence     motion.6       Commonwealth v.
McAfee, 849 A.2d 270, 274 -275 (Pa. Super. 2004), appeal denied, 860 A.2d
122 (Pa. 2004). "Absent such efforts, an objection to               a   discretionary aspect

of   a   sentence is waived."    Id. at 275. Therefore,         unless Saunders is granted

permission to file post- sentence motions nunc pro tunc, his challenge to the

discretionary aspects of his sentence            is   waived.    Accordingly, this issue is

dependent upon resolution of his ineffectiveness claim.'

          In his     remaining issue, Saunders argues his probation violation

sentence      is   illegal because the trial court failed to give him credit for time

served. See Saunders' Brief at 10. Specifically, he asserts he was entitled

to credit for his time in custody from October 19, 2012, until the violation

hearing on November 14, 2012, and for the initial term of nine to 23

months' incarceration he served on the drug conviction. See id. Because                   a

claim that the trial court failed to award credit for time served invokes the

legality of    a   sentence, Saunders contends his claim is cognizable despite the

fact he raised it for the first time on appeal.                      See id.     See also

Commonwealth v. Fowler, 930 A.2d 586, 595                         (Pa. Super. 2007) ( "[A]




6 Here, Saunders does not assert                 he raised      these claims during the
sentencing hearing.

  Should the PCRA court grant Saunders permission to file post- sentence
motions nunc pro tunc, he may raise his challenge to the discretionary
aspects of his sentence at that time.



                                            -7
J-S74024-16



challenge to the trial court's failure to award credit for time spent in custody

prior to sentencing involves the legality of sentence and is cognizable under

the PCRA. ") (quotation omitted), appeal denied, 944 A.2d 756 (Pa. 2008).

      Pursuant to Section 9760 of the Sentencing Code,                a    trial court   is

required to give credit to     a   defendant for time served "in custody prior to

trial, during trial, pending sentence, and pending the resolution of an

appeal." 42 Pa.C.S.     §   9760(1). Furthermore,

      where an offender is incarcerated on both a [Probation] Board
      detainer and new criminal charges, all time spent in confinement
      must be credited to either the new sentence or the original
      sentence.
Commonwealth v. Clark, 885 A.2d 1030, 1033                     (Pa.       Super.   2005)

(quotation omitted).

      First, with regard to Saunders' contention that he is entitled to credit

against his probation violation sentence for the time he served in prison

under his original sentence, we find such       a   claim specious.       His nine to 23

month prison term was not time spent in custody before trial, during trial,

before sentencing or pending an appeal.              See 42 Pa.C.S.          §   9760(1).

Saunders provides no authority for his assertion that he should receive

credit on   a   violation of probation sentence for prison time he served under

the original sentence, which was independent of the probationary sentence

at issue. No relief is warranted.

      However, Saunders correctly maintains that he is entitled to credit for

time he served in custody awaiting his violation hearing, presuming he did


                                         -8
J-S74024-16


not receive credit for the time on the new criminal charges.            See Clark,

supra. The Commonwealth states Saunders' "time            in   'from 10- 19 -12' was

credited to his Delaware County sentence." Commonwealth's Brief at 14. In

support of this contention, the Commonwealth refers to Saunders' Delaware

County criminal docket, which reveals he received 127 days credit for time

served on that conviction.          See Docket No. CP- 23 -CR- 0005685 -2012.

However, our review of that docket reveals Saunders was sentenced for the

Delaware County offenses on October 9, 2012.               The docket indicates

Saunders received 127 days credit for time served and was placed on

immediate parole.        See Docket No. CP- 23 -CR- 0005685 -2012.        However,

because that sentence was imposed on October 9, 2012, Saunders could not

have received credit for time spent in custody from October 19, 2012, until

November 14, 2012.

          Unfortunately, the PCRA court did not address this issue in its opinion.

Consequently, we are unable to determine whether Saunders was actually in

custody during the relevant period, and whether he received credit on any

sentence for that time served.         Because we are already remanding this

appeal for an evidentiary hearing on Saunders' ineffectiveness claim, we

direct the PCRA court to also consider Saunders' request for time served

credit.

      Therefore, we vacate the order granting PCRA relief, and remand for

an evidentiary hearing so the PCRA court may consider:               (1) Saunders'

assertion that counsel was ineffective for failing to file post- sentence

                                        -9-
J-S74024-16


motions, and (2) Saunders' claim that he      is   entitled to credit for time served

awaiting his probation violation hearing.

      Order vacated.    Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




J: seph   Seletyn,
          D.
Prothonotary


Date: 1/17/2017




                                     - 10 -
