J-S09033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ULYSSES N. ALTLAND,

                        Appellant                  No. 1296 WDA 2014


             Appeal from the PCRA Order entered July 11, 2014,
                in the Court of Common Pleas of Erie County,
            Criminal Division, at No(s): CP-25-CR-0002906-2005




COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ULYSSES N. ALTLAND,

                        Appellant                  No. 1297 WDA 2014


             Appeal from the PCRA Order entered July 11, 2014,
                in the Court of Common Pleas of Erie County,
            Criminal Division, at No(s): CP-25-CR-0001052-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED MARCH 26, 2015

      At two different dockets, Ulysses N. Altland (“Appellant”) appeals from

the order dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. sections 9541-46.         We reverse with

instructions.
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     The PCRA court summarized the procedural history as follows:

           At docket 1052-2012, [Appellant] was found guilty of
        voluntary manslaughter, two counts of aggravated assault,
        reckless endangerment, firearms not to be carried without
        a license, and possessing an instrument of crime on
        January 17, 2013, following a jury trial. On March 12,
        2013, the Honorable John Garhart imposed an aggregate
        sentence of 8.5 to 28 years.

            At docket 2906-2005, [Appellant] was charged with
        robbery, conspiracy to commit robbery, theft by unlawful
        taking, receiving stolen property, and driving without a
        license. On June 28, 2006, the Honorable John A. Bozza
        denied [Appellant’s] Motion to Decertify and Transfer to
        Juvenile Court.     [Appellant pled] guilty to criminal
        conspiracy to commit robbery on September 6, 2006, and
        the remaining charges were nolle prossed. On October 5,
        2006, [Appellant] was sentenced by Judge Bozza to 10 to
        23 months [of] incarceration and 5 years [of] probation.
        [Appellant] was paroled effective August 3, 2007. On
        November 20, 2009, a warrant was issued for [Appellant’s]
        arrest due to parole and probation violations.        On
        November 2, 2010, the Honorable Ernest J. DiSantis, Jr.,
        revoked [Appellant’s] probation and sentenced him to 10
        to 23 months incarceration with 48 months [of] probation.
        Following his conviction at docket 1052-2012, the
        Honorable John Garhart revoked [Appellant’s] probation at
        this docket and imposed a [sentence consecutive to docket
        1052-2012] of 18 to 36 months [of] incarceration on
        March 12, 2013.

           On February 21, 2014, [Appellant] filed a pro se PCRA
        Petition.  On February 25, 2014, [the PCRA court]
        appointed PCRA counsel. On May 8, 2014, [PCRA counsel]
        submitted a Supplemental PCRA [petition]. On May 9,
        2014, [the PCRA court] ordered the Commonwealth to file
        Response within ten days. [The Commonwealth failed to
        comply].

PCRA Court Opinion, 6/11/14, at 1-2.




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       On June 11, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition without a hearing. Appellant did not

file a response. By order entered July 11, 2014, the PCRA court dismissed

Appellant’s PCRA petition. This timely appeal followed. Both Appellant and

the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:

         A. WHETHER THE [PCRA] COURT ERRED IN DENYING
         PCRA RELIEF IN THE NATURE OF THE PROVISION OF TIME
         CREDIT?

Appellant’s Brief at 2.

      This Court’s 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. Reaves, 923 A.2d

1119, 1124 (Pa. 2007).      The PCRA court’s findings will not be disturbed

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

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a PCRA court may decline to hold a hearing if it determines that a

petitioner’s claim is patently frivolous and is without a trace of support in

either the record or from other evidence. Commonwealth v. Jordan, 772

A.2d 1011, 1014 (Pa. Super. 2001).

      Initially, we must first determine if Appellant’s claim is cognizable

under the PCRA. This Court has stated:

            It was only when the petitioner challenges the legality of
        a trial court’s alleged failure to award credit for time served

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        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 Bureau of
        Correction’s [sic] 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 [post-conviction]
        proceedings.

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

omitted). “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.” Id. at 512-13.

      Here, Appellant claims “he was not afforded proper time credit and

that the Court committed legal error and abused its discretion in failing to

grant PCRA relief in the nature of the provision of the time credit as alleged

and sought pursuant to his PCRA Petition.” Appellant’s Brief at 4. According

to Appellant, he “should have been afforded time credit of 374 days as to

[his] cumulative sentence and the [trial] court’s failure to afford that time

credit and reliance upon the Clerk of Courts to impose that credit resulted in

the imposition of an illegal sentence absent the incorporation of that time

credit into the sentencing order.” Id. at 5. We agree.

      Appellant’s claim is cognizable under the PCRA because he is

challenging the illegality of his sentence.   Compare Commonwealth v.

Heredia, 97 A.3d 392, 395 (Pa. Super. 2014) (holding that, because the




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trial court “expressly and unambiguously granted him ‘credit for any time

served’”, the PCRA petitioner did not challenge the legality of his sentence.

      In this case, the PCRA court found no merit to Appellant’s contention,

and explained:


             After an independent in investigation of this matter this
          Court finds [Appellant’s] argument to be without merit. In
          fact, [Appellant] did receive credit for the 374 days served
          between March 2012 and March 2013.             The Clerk of
          Courts, as directed by Judge Garhart at sentencing,
          applied this credit to docket number 685-2010 to close out
          the docket. This Court notes that [Appellant’s] parole at
          docket 685-2010 was revoked on March 12, 2013 due to
          his convictions at docket 1052-2012. The 374 days was
          applied, and Judge Garhart granted [Appellant] parole,
          effective March 12, 2013, at docket 685-2010.
          Accordingly, [Appellant] is not subject to an illegal
          sentence as he did receive 374 days credit.

PCRA Court Opinion, 6/11/14, at 2-3.

      Our review of the sentencing transcript reveals that, although the trial

court stated that Appellant would receive “all credit for time served,” the

sentencing order does not provide a time credit. See Heredia, 97 A.3d at

395, n.5 (noting that the text of a sentencing order “is determinative of the

court’s sentencing intentions and the sentence imposed”); Commonwealth

v. Mann, 957 A.2d 746 (Pa. Super. 2008) (remanding because “the

sentencing court must include credit for time served in the sentencing

order).

      At sentencing, the following exchange occurred:

          [BY THE COURT]:


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          Now, that takes care of the sentencing on this docket at
        1052 of 2012; any questions from anybody?

           [TRIAL COUNSEL]: Judge, would the credit be - -
        [Appellant] has about a year - - a little over a year in.

           THE COURT: Did he make bond on this charge?

           [TRIAL COUNSEL]: No.

           [ASSISTANT DISTRICT ATTORNEY]: No.

           [TRIAL COUNSEL]: No, in on a detainer.

           THE COURT: I’m going to let the clerk take the first
        whack, [trial counsel] of allotting credit. Clearly he gets
        credit for any time he’s served, okay?

           [TRIAL COUNSEL]: Yes.

           THE COURT: And we agree he’s not RRRI eligible.

           [TRIAL COUNSEL]: That’s correct.

           THE COURT: Now, we have another matter to account
        for. At the time [Appellant] committed these crimes, he
        was on supervision for two crimes at 2906 of ’05. There
        he committed - - he was guilty of conspiracy to commit
        robbery, a felony of the second degree, and he was still on
        supervision for that offense and will be till 2016. His new
        charge of voluntary manslaughter is a breach of that
        supervision and as clear a breach as could be imagined, so
        that needs to be accounted for.         Secondly, he’s on
        supervision at the time at 685 of 2010, a theft by unlawful
        [taking] count in which he’d done - - he was sentenced to
        five to twenty months in the Erie County Prison.

           I’m going to do the following here: First of all, 685 of
        2010, I’m going to revoke. I want to parole him and I
        want to discharge him on that. I want that done, that is
        just underbrush at this point.

N.T., 3/12/13, at 28-29. The trial court then imposed the 18 to 36 month

consecutive probation revocation sentence at docket 2906 of 2005.




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      Initially, we note that the trial court erred in deferring the calculation

of credit for time served to the clerk of courts. See Mann, 957 A.2d at 749

(reiterating that the Department of Corrections, as an executive agency,

“has no power to change sentences, or to add or remove sentencing

conditions including credit for time served; this power is vested in the

sentencing court”).   Moreover, we read the above comments by the trial

court as indicating its intent to immediately parole Appellant for his 2010

conviction.   Thus, the certified record does not support the clerk’s

assignment of time credit for to this conviction. Given these circumstances,

we conclude that Appellant’s sentence for his 2013 convictions is illegal. We

reverse the PCRA court’s order denying post-conviction relief. Upon remand,

the “sentencing court is instructed to apply credit to the balance of

Appellant’s new sentence for all the time he was in custody between his

arrest on the new charges and his sentencing for those offenses.”        Mann,

957 A.2d at 752. As in Mann, the sentencing court must issue a sentencing

order granting time-served.” Id.

      Order reversed.     Case remanded with instructions regarding re-

sentencing with credit for time served. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

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Date: 3/26/2015




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