J-S65025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ALBERTO MERCED

                         Appellant                    No. 296 EDA 2014


              Appeal from the PCRA Order December 30, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0015128-2008


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 23, 2014

      Appellant, Alberto Merced, appeals from the order entered on

December 30, 2013, dismissing his petition pursuant to the Post Conviction

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

      The PCRA court set forth the applicable facts and procedural history of

this case as follows:

             On June 22, 2010, [Appellant], who is no longer
        incarcerated, entered a negotiated guilty plea to the first-
        degree felonies of aggravated assault and criminal
        conspiracy[.     The trial court] imposed the negotiated
        sentence of three to eight years’ imprisonment followed by
        four years’ probation “to be served at the same time as any
        other sentence” he was then serving, “with credit for any
        time served.” [The trial court] was clear in explaining to
        [Appellant] that the sentence was to commence “starting
        from today,” the day he was sentenced. In his [counseled]
        [a]mended [PCRA] petition, [Appellant] claims his sentence
        illegally violates his right to due process because the
        Department of Corrections (“DOC”) did not calculate his
        time credit correctly in light of [the trial court’s] order that

*Retired Senior Judge assigned to the Superior Court.
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          the sentence be served concurrently. He also claims that
          the court commitment paperwork sent to the DOC failed to
          reflect the order for a concurrent sentence. [Appellant]
          believes he is entitled to relief in the form of a credit from
          June 2, 2009, the start of a previous sentence, through the
          date of his guilty plea and sentencing on this case on June
          22, 2010.

                             *         *           *

              On June 22, 2011, [Appellant] filed a PCRA petition pro
          se. Elayne C. Bryn, Esquire, was appointed as his counsel.
          On December 4, 2012, Ms. Bryn filed an amended PCRA
          petition on his behalf, raising essentially the same issues.
          [The PCRA court] dismissed the petition on December 30,
          2013, as having no merit. [Appellant] timely filed a notice
          of appeal on January 28, 2014. On February 18, 2014,
          [Appellant] timely filed, pursuant to the [PCRA court’s]
          order, a concise statement of the errors complained of on
          appeal, pursuant to Pa.R.A.P. 1925(b)(1), articulating the
          same issues raised in the PCRA petitions. [The PCRA court
          issued an opinion pursuant to Pa.R.A.P. 1925(a) on
          February 28, 2014.]

PCRA Court Opinion, 2/28/2014, at 1-2, 4 (record citations omitted).

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

          I.    Whether the PCRA court erred in denying [A]ppellant
                [PCRA] relief because the Pennsylvania [DOC] did not
                give him credit for time that he spent incarcerated
                prior to his guilty plea.

Appellant’s Brief at 3.

        In his sole issue presented, Appellant claims “he should be given credit

[for] time he spent incarcerated from June 2, 2009 through June 22,

2010[,]” the “time that he spent incarcerated prior to his guilty plea” in this

case.    Id. at 7.    More specifically, he claims that on the day he “was

sentenced in this matter, he was serving a sentence for [another criminal


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case before a different judge] that was imposed on June 2, 2009.” Id. at 5.

Appellant claims that the official court document, Court Commitment Form

DC-330B, sent to the DOC setting forth the sentence imposed by the trial

court did not accurately reflect that Appellant “should serve this sentence

concurrently with the sentence that he was then serving[.]” Id. Appellant

also suggests that Form DC-330B listed the wrong attorney of record. Id. at

10. Appellant avers that “[u]nder state law, the Court of Common Pleas has

the power to issue and amend Form DC-330B; the [DOC] does not.” Id. at

7. Thus, Appellant argues “the trial court’s failure to award credit for time

spent in custody prior to sentencing involves the legality of sentence.” Id.

In essence, Appellant is arguing that he is entitled to credit for the time he

spent incarcerated from the date of the imposition of sentence in the

unrelated case, on June 2, 2009, until he pled guilty in this matter, on June

22, 2010.

      Initially, we note that Appellant’s claim is properly before us. “If the

alleged error [in computing credit for time served] 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.”

Commonwealth v. Perry, 563 A.2d 511, 512-513 (Pa. Super. 1989)

(internal citation omitted). “It [i]s 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 [i]s

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deemed cognizable as a due process claim in PCRA proceedings.”             Id.

(citation omitted; emphasis in original). Here, Appellant claims that the trial

court failed to award credit for time served by failing to specify whether his

current sentence was to be served concurrently with other sentences he was

already serving.

      “Our standard of review regarding a PCRA court's order is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.

Super. 2011) (citation omitted).      “The PCRA court's findings will not be

disturbed unless there is no support for the findings in the certified record.”

Id.

      Applicable herein, Pa.R.Crim.P. 705 states as follows:

        (A)   When imposing a sentence to imprisonment, the
              judge shall state the date the sentence is to
              commence.

        (B)   When more than one sentence is imposed at the same
              time on a defendant, or when a sentence is imposed
              on a defendant who is sentenced for another offense,
              the judge shall state whether the sentences shall run
              concurrently or consecutively. If the sentence is to run
              concurrently, the sentence shall commence from the
              date of imposition unless otherwise ordered by the
              judge.

Pa.R.Crim.P. 705.

      With regard to credit for time-served, a trial court is statutorily

mandated to give credit as follows:




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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.

42 Pa.C.S.A. § 9760.

     “In Pennsylvania, the text of the sentencing order, and not the

statements    a   trial    court     makes       about   a       defendant's   sentence,   is

determinative of the court's sentencing intentions and the sentence

imposed.”    Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013).

Moreover, “[f]orm DC–300B is a commitment document generated by the

Common       Pleas        Criminal     Court        Case          Management       System.”

Commonwealth v. Heredia, 97 A.3d 392, 394 n.3 (Pa. Super. 2014),

citing 37 Pa.Code § 96.4; 42 Pa.C.S.A. § 9764. “Section 9764 of the Judicial

Code sets forth the procedure associated with transfer of an inmate into

DOC custody and provides that, on commitment of an inmate, the

transporting official must provide the DOC with a copy of the trial court's

sentencing order and a copy of the DC–300B commitment form.” Heredia,

97 A.3d at 394 n.3, citing 42 Pa.C.S.A. § 9764(a)(8).


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     Herein, the PCRA court determined:

              At the time [Appellant] was sentenced in this case, he
       was already serving concurrent sentences of two to four
       years’ imprisonment, followed by five years’ probation,
       imposed by another judge of [the Philadelphia County Court
       of Common Pleas] on June 2, 2009. At the sentencing
       hearing in this case, [the trial court] stated repeatedly that
       [Appellant’s] sentence would commence on the day of
       sentencing and would commence on the day of the
       sentencing and would run concurrently with any other
       sentences he was then serving with any available time
       credit to be applied. The [trial court] said it understood that
       [Appellant] wanted to enter a “negotiated plea where the
       Commonwealth has agreed to drop all other charges and
       recommend a sentence of three to eight years followed by
       four years reporting probation with this sentence to run
       at the same time as any other sentence that you’re
       currently serving.” Referring to the sentence about to be
       imposed, the [trial court] explained that “starting from
       today, it would be served at the same time as your
       other sentence.” [Appellant] said, “It’s my understanding
       that since it’s being run together that the three to eight will
       overlap two to four.”         The [trial court] clarified to
       [Appellant], “They would overlap but not completely.” The
       [trial court] further explained, “What my sentence would
       say, if I accepted the negotiations, is that you would get
       three to eight years followed by four years reporting
       probation to be served at the same time as any other
       sentence you’re currently serving.” The [trial court]
       again explained that “starting from today at least three to
       eight years would be served at the same time as your other
       sentence. ... How they calculate what went to your other
       case and what goes to this case is something that they do
       elsewhere. … Do you understand that?”               [Appellant]
       answered, “Yes, I understand it.” The [trial court] again
       stressed,

          “I want to make sure that he knows what’s going to
          happen and that you’re not expecting that you
          have a whole several years of back time that

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             are going to be credited. But starting from
             today, it will be three to eight years and there may
             be some credit that they credit towards this case.
             Do you understand that?”

          [Appellant] replied, “Yes.”

PCRA Court Opinion, 2/28/2014, at 3-4 (record citation omitted; emphasis in

original). Moreover, the PCRA court noted, “Court Commitment Form, DC-

300B, clearly states on page 2, “Sentence to run concurrent with any other.”

Id. at 4.

      Here, upon review, the certified record reflects that the trial court’s

sentencing order expressly stated that Appellant’s sentence was “to run

concurrent with any other” and unambiguously granted him “credit for any

time served.”     Trial Court Sentencing Order, 6/22/2010, at 1 (emphasis

added).     Likewise, the accompanying DC-300B form attached to the

sentencing order, as contained in the certified record, contains identical

language. See Form DC-330B, 6/22/2010, at 2. Thus, the sentencing order

and accompanying form clearly expressed that Appellant’s challenged

sentence was to run concurrent to any other sentences he was currently

serving. There is no dispute that Appellant was serving another sentence at

the time the trial court entered the sentencing order in this case. The

sentence in contention here commenced on the date the sentencing order

was issued, June 22, 2010. Pa.R.Crim.P. 705(b). Moreover, the PCRA court

noted that “the period from June 2, 2009, to June 22, 2010, was already

credited to his earlier cases[.]” PCRA Court Opinion, 2/28/2014, at 6, citing

DOC Form DC16E – Sentence Status Summary, 7/14/2010. Appellant is not

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entitled to time “credited against another sentence.”        42 Pa.C.S.A. §

9760(4). Accordingly, for all of the foregoing reasons, Appellant’s disputed

sentence was legal.1         Hence, we discern no error of law or abuse of

discretion in denying Appellant PCRA relief.     Thus, Appellant’s sole claim

lacks merit.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




____________________________________________


1
   We summarily reject Appellant’s claim that listing the mistaken trial
counsel on Form DC-330B somehow affected the legality of his sentence.



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