J-S70041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

ANTHONY J. FRANKLIN

                            Appellant                        No. 1540 EDA 2015


                 Appeal from the Order Entered April 24, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0007203-2006


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                FILED DECEMBER 02, 2015

        Anthony Franklin appeals from the order of the Court of Common Pleas

of Delaware County that denied his petition for habeas corpus. After careful

review, we affirm.

        On December 5, 2007, Franklin entered into a negotiated guilty plea to

robbery and criminal conspiracy to commit robbery. Pursuant to the

agreement, the court sentenced him to 8½ to 20 years’ incarceration.

Franklin did not file an appeal.

        Franklin filed a pro se PCRA petition on October 21, 2008, and the trial

court    appointed    counsel     who    filed   a   no    merit   letter   pursuant   to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S70041-15



v. Finley, 550 A.2d 213 (Pa. Super. 1988). The court dismissed the petition

without a hearing on April 28, 2009.

     Franklin filed a second PCRA petition on April 26, 2010, which was

dismissed on October 28, 2010.           On appeal to this Court, we affirmed.

Commonwealth v. Franklin, 60 A.3d 845 (Pa. Super. 2012) (unpublished

memorandum). Franklin then filed a petition for allowance of appeal, which

our Supreme Court denied on March 26, 2013.                    Commonwealth v.

Franklin, 63 A.3d 1244 (Pa. 2013).

     On December 29, 2014, Franklin filed a pro se pleading titled “Petition

for Writ of Habeas Corpus, Custody Credit Problem, and Refusal to Honor

Negotiated Plea Agreement to Run Concurrent with Subsequent Pending

Conviction with Delaware County.” In the Petition, Franklin avers: (1) his

Delaware    County   negotiated       plea   agreement   for   8½   to    20   years’

incarceration contained a provision that his sentence would be served

concurrently with any sentence imposed for pending charges in Philadelphia;

(2) he subsequently entered a plea agreement in Philadelphia for 10 to 20

years’   incarceration;   (3)   the   Department    of   Corrections     (DOC)   and

Philadelphia have refused to honor the Delaware County plea agreement, (4)

he is “virtually unable to obtain Notes of Testimony of December 5, 2007,

guilty plea proceedings, Sentencing Orders, and terms of negotiated plea




                                         -2-
J-S70041-15



agreement;1 and (5) DOC has failed to properly credit him for periods while

in custody.

        The court held argument on April 23, 2015 and denied the petition the

following day.      On appeal, Franklin raises the following issues for our

review:2

        1. Whether [the] habeas court erred in fail[ing] to grant
           discovery request for [the] December 5, 2007, guilty pleas
           notes of testimony.

        2. Whether [the] habeas court erred in fail[ing] to grant custody
           credits for the [period] in county custody, prior to Petitioner’s
           transfer to the Department of Corrections.

Appellant’s Brief, at 4.

        As a preliminary matter, we reject the Commonwealth’s position that

the court lacked jurisdiction to consider any of the claims raised in the

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

this Court held that with respect to a challenge to credit for time served:

        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 the 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.
____________________________________________


1
    Petition for Writ of Habeas Corpus, 12/29/14, at 6.
2
 The decision to grant or deny a petition for habeas corpus will be reversed
only for a manifest abuse of discretion. Commonwealth v. Giusto, 810
A.2d 123, 125 (Pa. Super. 2002).



                                           -3-
J-S70041-15


       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.

Perry, supra at 512-13.

       Because Franklin essentially sought clarification of his Delaware

County sentence, he properly raised the issue in a habeas corpus petition.

       The trial court engaged in a thorough review of the guilty plea

transcript and concluded, “it is clear that the Commonwealth has not refused

to honor the terms of the negotiated guilty plea, and that [Franklin]

understood his sentence.”            Trial Court Opinion, 7/21/15, at 2.     Our

independent review of the transcript and the certificate of imposition of

judgment of sentence confirms there was no agreement that Franklin’s

sentence would run concurrently with any sentence to be imposed on the

pending Philadelphia charges.3

       Because this issue was properly before the court, the court had

jurisdiction to consider Franklin’s request to obtain the transcript of his

December 5, 2007 guilty plea proceeding.           Upon review, the trial court
____________________________________________


3
  We note that Franklin does not raise the concurrent sentence issue in the
statement of question involved or in the argument section of his brief. The
only reference appears in the summary of argument where Franklin states
that his negotiated plea agreement included a sentence “to run concurrent
upon conviction of pending charge[s] in Philadelphia County.” Appellant’s
Brief, at 6. Because the issue was not otherwise raised in Franklin’s brief, it
is waived. Commonwealth v. Smith, 567 A.2d 1070, 1072 n.1 (Pa. Super.
1989) (issues raised in summary of argument but not addressed in
argument in chief waived).



                                           -4-
J-S70041-15



determined that Franklin was not entitled to the transcript because one had

been provided to Franklin’s first PCRA counsel who reviewed it before filing

his Turner/Finley letter.    See Turner/Finley Letter, 1/21/09, at 1.        We

discern no abuse of discretion in this decision, and accordingly affirm the

trial court.

      Franklin next asserts that the trial court erred by failing to grant credit

for time that he was in custody. We disagree because the trial court did not

have jurisdiction to consider the claim. “A challenge to DOC’s computation

or construction of a sentence is not a cognizable claim under the PCRA.

Rather, if the alleged error is the result of DOC’s erroneous computation,

then the appropriate mechanism for redress is an original action in [the

Commonwealth] Court challenging DOC's computation.”            Allen v. Com.,

Dept. of Corrections, 103 A.3d 365, 373 (Pa. Cmwlth. 2014).

      Order affirmed.

      Judge Donohue joins the Memorandum.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2015




                                      -5-
