J-S17041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

ANDREW KENNETH NORMAN

                             Appellant                No. 1404 WDA 2015


                    Appeal from the Order August 27, 2015
       in the Court of Common Pleas of Fayette County Criminal Division
                       at No(s):CP-26-CR-0002027-2012

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 09, 2016

        Pro se Appellant, Andrew Kenneth Norman, appeals from the order

dismissing his petition to have the trial court reissue his sentencing order.

Appellant claims the court had jurisdiction to grant his petition to reissue his

prior sentencing order. He maintains he does not want a different sentence.

Appellant opines that a reissued sentencing order would confirm to the

Pennsylvania Department of Corrections (“DOC”) that the court sentenced

him to a flat ninety days’ imprisonment, rather than the DOC’s interpretation

of the order as imposing a sentence of ninety to 180 days’ imprisonment.

We affirm.




*
    Former Justice specially assigned to the Superior Court.
J-S17041-16

        We glean the facts from the record.    On August 7, 2013, Appellant

pleaded guilty to, inter alia, driving while operating privilege was suspended1

(“DUS”). On September 3, 2013, the court docketed its sentencing order,

which in pertinent part follows: “(5) undergo imprisonment at a State

Correctional Institution for the mandatory period of ninety (90) days.”

Order, 9/3/13. Appellant did not file a direct appeal. On July 2, 2014, the

court docketed Appellant’s Post Conviction Relief Act petition, which the

court denied on September 8, 2014.

        On October 28, 2014, and June 16, 2015, Appellant apparently

contacted the DOC.     Ex. C to Appellant’s Petition for the Court to Reissue

Corrected Sentencing Order. The DOC responded to Appellant’s contacts in

a memo dated July 27, 2015:

           I am in receipt of your letter dated 10/28/2014 and
           06/16/2015. Your case has been computed using the
           attached information provided by the county. The [DOC]
           received a written order and DC300B for CP2027-2012.
           The written order does not clarify whether the 90 day
           sentence is to be applied to the minimum only. The
           DC300B does show the 90 day sentence is to be applied to
           the minimum and the maximum. Therefore it was applied
           to both. If you believe these orders are incorrect, please
           have the county send us corrected documents and we will
           adjust your case accordingly.

Id.




1
    75 Pa.C.S. § 1543(b)(1.1).




                                     -2-
J-S17041-16

      On August 19, 2015, within a month of the DOC memo, Appellant filed

the instant petition to reissue sentencing order. Attached to the petition was

the DOC memo, a court form confirming Appellant’s sentence of ninety days’

imprisonment, and a DOC form stating that for Appellant’s DUS conviction,

he has a minimum sentence of ninety days and a maximum sentence of

ninety days.    On August 27, 2015, the trial court dismissed Appellant’s

petition on the basis that it lacked jurisdiction.      On August 31, 2015,

Appellant timely appealed.2       Appellant also timely filed a court-ordered

Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issue:

         Did the lower court err in denying [Appellant’s] Motion for
         the Court to Reissue Corrected Sentencing Order where it
         concluded that it did not have jurisdiction to grant the
         motion?

Appellant’s Brief at 7.

      Appellant argues that the court sentenced him to a flat ninety-day

sentence of imprisonment. According to Appellant, the DOC construed the

sentence as imposing a minimum term of ninety days and a maximum term

of ninety days added to the minimum term of ninety days, for a total of 180

days’ imprisonment.       Appellant therefore asked the court to “reissue” the

sentencing order and forward a copy to the DOC. He asserts the court has

2
 See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (discussing prisoner mailbox rule).    The court docketed
Appellant’s notice of appeal on September 14, 2015.




                                      -3-
J-S17041-16

jurisdiction to reissue an order without any changes “in the interest of

making sure that the order is followed.” Id. at 11. We hold the trial court

lacked jurisdiction and thus affirm the order below.

      We addressed our appellate jurisdiction in the seminal case of

Commonwealth v. Perry, 563 A.2d 511 (Pa. Super. 1989):

         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 writ of habeas corpus ad subjiciendum lies to the trial
         court for clarification and/or correction of the sentence
         imposed.

            It was 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 was deemed cognizable as a due
         process claim in PCRA proceedings. A challenge to the
         [Department] of Correction’s computations or construction
         of the terms of sentences imposed is neither a direct nor
         even a collateral attack on the sentences imposed; and so,
         such claims were not deemed cognizable in PCHA
         proceedings. Because [the defendant] has not challenged
         the trial courts’ sentences, but has challenged the
         [Department] of Correction’s computations or construction
         of the sentences, it is unnecessary to determine whether
         the analysis in Commonwealth v. Walker, [428 A.2d
         661 (Pa. Super. 1981)], applies to actions brought under
         the new PCRA. It is enough, for the present, to note that a
         challenge to a [Department] of Corrections’ computation or
         construction of a sentence (or sentences) imposed may not
         be brought by a PCRA petition.




                                     -4-
J-S17041-16

Id. at 512-13 (some citations omitted).       Accordingly, the Perry Court

affirmed the dismissal of the defendant’s PCRA petition seeking correction of

an allegedly miscalculated sentence. Id. at 512.

     Instantly, Appellant filed a petition to have the court reissue his

sentencing order to have the DOC construe his sentence as imposing a flat

ninety-day term of imprisonment instead of a minimum term of ninety days

and a maximum term of 180 days.        Appellant has challenged the DOC’s

construction of the trial court’s sentence. See Perry, 563 A.2d at 512-13.

Thus, Appellant should bring an action in the Commonwealth Court, and we

affirm the order below.3 See id.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2016




3
  We expressly leave for the Commonwealth Court to rule on the merits of
Appellant’s issue. See generally Commonwealth v. Klingensmith, 650
A.2d 444, 447-48 (Pa. Super. 1994) (holding trial court could impose flat
ninety-day sentence for DUS conviction).




                                    -5-
