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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                   v.                  :
                                       :
ANTHONY PHILIP CULVER,                 :         No. 1901 WDA 2013
                                       :
                        Appellant      :


                Appeal from the Order Dated October 28, 2013,
               in the Court of Common Pleas of Cambria County
               Criminal Division at No. CP-11-CR-0000203-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 5, 2015

     Anthony Philip Culver (“Culver”) appeals from the order denying his

Petition for Writ of Habeas Corpus.1 Finding no error, we affirm.


1
  Culver’s petition requested credit for time served that had been awarded
by the trial court but not applied by the Department of Corrections.
Ordinarily, where the relief requested in a petition for writ of
habeas corpus is cognizable under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546, a petition for writ of habeas corpus is
subsumed under that statute. 42 Pa.C.S.A. § 9542; Commonwealth v.
Turner, 80 A.3d 754, 770 (Pa. 2013). A claim that a sentence is illegal
because the court failed to grant credit for time served is cognizable under
the PCRA. Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa.Super.
2014). However, where the trial court has awarded credit for time served
and the issue is an improper computation of sentence by the Department of
Corrections, legality of sentence is not raised and the petition is not
cognizable under the PCRA. Id. at 394-395. In such an instance, the
proper method for relief would be an original action in the Commonwealth
Court. Id. at 395. Finally, if the improper computation arises from an
ambiguity in the sentencing order the proper course is a petition for writ of
habeas corpus before the trial court. Id. As that is the present situation,
we will not treat this appeal as arising from the denial of a PCRA petition.
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      On May 29, 2012, Culver entered a guilty plea to robbery, and on

July 24, 2012, Culver was sentenced to a bargained 24 to 48 months’

imprisonment. On September 10, 2012, Culver’s motion for modification of

sentence was denied. Culver filed a notice of appeal on October 30, 2012.

On January 9, 2013, this court quashed the appeal as untimely.

      On March 27, 2013, Culver filed a pro se PCRA petition. Counsel was

appointed, and on April 9, 2013, Culver’s direct appeal rights were restored.

Culver filed his notice of appeal on April 18, 2013. On September 26, 2013,

while his direct appeal was still pending, Culver filed the instant Petition for

Writ of Habeas Corpus.             Subsequently, Culver’s direct appeal was

discontinued on October 21, 2013.       Thereafter, on October 28, 2013, the

trial court held a hearing on Culver’s petition and denied it by order of that

same date. Culver brings this timely appeal.

      Preliminarily, we note that appellate counsel has filed a petition to

withdraw and a “no-merit” brief pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc).2        We must first review whether counsel has

met   the   requirements     for    permission   to   withdraw   pursuant    to

Turner-Finley. Those requirements are:

                 As set forth above, counsel has filed in this
            Court an Application to withdraw and an appellate

2
  Although Turner-Finley procedure is generally employed in a PCRA
setting, we find that it is an appropriate method for an attorney seeking to
withdraw in any collateral matter.


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           brief. In Commonwealth v. Pitts, 603 Pa. 1, 981
           A.2d 875 (2009), our Pennsylvania Supreme Court
           stated that

                [i]ndependent review of the record by
                competent counsel is required before
                withdrawal is permitted. Turner, at 928
                (citing Pennsylvania v. Finley, 481
                U.S. 551, 558, 107 S.Ct. 1990, 95
                L.Ed.2d 539 (1987)). Such independent
                review requires proof of:

                1)    A “no-merit” letter by PC[R]A
                      counsel detailing the nature
                      and extent of his review;

                2)    The “no-merit” letter by
                      PC[R]A counsel listing each
                      issue the petitioner wished to
                      have reviewed;

                3)    The      PC[R]A       counsel’s
                      “explanation”,      in     the
                      “no-merit” letter, of why the
                      petitioner’s   issues     were
                      meritless;

                4)    The PC[R]A court conducting
                      its own independent review
                      of the record; and

                5)    The PC[R]A court agreeing
                      with counsel that the petition
                      was meritless.

           Pitts, 981 A.2d at 876 n. 1 (quoting Finley, 550
           A.2d at 215).

Commonwealth v. Widgins, 29 A.3d 816, 817-818 (Pa.Super. 2011).

     Additionally, Widgins resurrected from Commonwealth v. Friend,

896 A.2d 607 (Pa.Super. 2006), the requirement that counsel must serve a



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copy of the petition to withdraw and no-merit brief on the PCRA petitioner,

and inform the petitioner that if counsel is permitted to withdraw, the

petitioner has the right to proceed pro se or with privately retained counsel.

Widgins, 29 A.3d at 818. We have reviewed counsel’s petition to withdraw

and no-merit brief and have found that they now comport with these

requirements;3 thus, our only remaining task is to review Culver’s issues to

determine whether they have merit.

      The only issue raised by Culver is that the award of time served in his

sentencing order is ambiguous and is being improperly applied.            Our

standard of review states that “[t]he decision to grant or deny a petition for

writ of habeas corpus will be reversed on appeal only for a manifest abuse

of discretion.”   Commonwealth v. McCullough, 86 A.3d 901, 905

(Pa.Super. 2014), quoting Commonwealth v. Winger, 957 A.2d 325, 327

(Pa.Super. 2008). We find no abuse of discretion.

      We find that the trial court’s analysis on this issue is absolutely

correct:

                  In his Petition Culver contends that he is not
            being given proper credit for time served by the
            Department of Corrections (DOC) on Cambria County
            Criminal Docket 0203-2012. Culver was charged in
            case 0203-2012 on December 8, 2011 while he was
            incarcerated on charges filed to docket number
            1779-2011. Culver was incarcerated on case 1779-
            2011 on September 8, 2011, ninety-two (92) days
            prior to charges being filed in case 0203-2012.

3
  We previously ordered counsel to comply with the notice requirements
under Widgins and Friend. The record indicates that counsel has done so.


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          Culver entered a guilty plea in case 1779-2011 on
          April 3, 2012 and was sentenced on May 3, 2012,
          inter alia, to serve three (3) to twelve (12)
          month[s] in the Cambria County Prison with credit
          for time served. Culver was paroled on 1799-2011
          on July 26, 2012. On May 29, 2012, Culver entered
          a guilty plea to charges in case 0203-2012 and was
          sentenced on July, 24, 2012, inter alia, to serve a
          period of incarceration of twenty-four (24) to
          forty-eight (48) months in a state correctional
          institution with credit for time served on 0203-2012.
          Culver’s Petition argues that the time he spent
          incarcerated since December 8, 2011 should be
          credited to case 0203-2012.

                The Sentencing Code requires a court to give
          credit to a defendant “for all time spent in custody as
          a result of the criminal charge for which a prison
          sentence is imposed.” 42 Pa.C.S.A. § 9760(1) (West
          2014). The principle underlying the statute is that a
          defendant should receive credit for time spent in
          custody prior to sentencing for a particular offense.
          Commonwealth v. Mann, 957 A.2d 746, 749 (Pa.
          Super. 2008).       However, once a defendant is
          sentenced by any Pennsylvania court, he is no longer
          in custody as a result of criminal charges for any
          other offense. Commonwealth v. Lloyd, 509 A.2d
          868, 872 (Pa. Super. 1986). Consequently, because
          a defendant is deemed to be imprisoned “as a result
          of” the first conviction, he is not entitled to receive
          additional time credit for subsequent sentences
          imposed by other courts.          Commonwealth v.
          Hollowell, 413 Pa. Super. 42, 47-48, 604 A.2d 723,
          726 (Pa.Super. 1992) (holding that a defendant is
          not entitled to duplicative credit on two sentences
          because it would be a windfall).

                In addition it is well settled that a defendant
          shall be given “credit for any days spent in custody
          prior to the imposition of sentence, but only if such
          commitment is on the offense for which sentence is
          imposed.     Credit is not given, however, for a
          commitment by reason of a separate and distinct
          offense.” Commonwealth v. Miller, 440 Pa. Super.


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          380, 384, 655 A.2d 1000, 1002 (1995) (quoting
          Commonwealth ex rel. Bleecher v. Rundle, 207
          Pa. Super. 443, 445, 217 A.2d 772, 774 (1966)).
          See also, Commonwealth v. Clark, 885 A.2d
          1030, 1033 (Pa.Super. 2005); Hollowell, 413 Pa.
          Super. at 46, 604 A.2d at 725.

                 As noted above when the charges to case
          0203-2012 were filed on December 8, 2011, Culver
          was already incarcerated on case 1779-2011 and at
          no time did Culver post bail on case 1779-2011. On
          May 3, 2012, when he was sentenced on case 1779-
          2011 Culver was awarded credit for time served
          since September 8, 2011, as that was the date of
          incarceration on those charges. Culver could not
          receive credit for that same time on case 0203-2012
          as those cases were separate and distinct offenses
          and it would be a windfall to allow him credit for that
          time on two separate cases. Hollowell, 413 Pa.
          Super. at 47-48, 604 A.2d at 726 (where defendant
          was sentenced separately on convictions resulting
          from two criminal informations, and awarded credit
          for time previously served as to one set of charges,
          he was not entitled to credit for time served prior to
          imposition of sentence on second set of charges;
          once first judge credited defendant for time
          previously served, his time in custody was no longer
          “a result of” charges brought before second judge).
          See also, Bright v. Pennsylvania Bd. of Prob. &
          Parole, 831 A.2d 775, 779 (Pa.Cmwlth. 2003);
          Commonwealth v. Merigris, 452 Pa. Super. 78,
          81, 681 A.2d 194, 195 (1996).

                Further, Culver could not receive credit for the
          period of May 3, 2012 through July 26, 2012, on
          case 0203-2012 as that time was counted toward his
          sentence on case 1779-2011 resulting in his parole
          on July 26, 2012, on that case. Due to the Court’s
          error in failing to indicate if the sentence at 0203-
          2012 was to run concurrent or consecutive to that at
          1779-2011 the sentence was treated as being
          concurrent resulting in Culver being credited on case
          0203-2012 with time from July 24, 2012, rather than
          from the date of his parole on 1779-2011. N.T.


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            10/28/13 pp. 3-4 (testimony of Mary Makin, records
            department Cambria County Prison).

Trial court opinion, 2/3/14 at 2-4. We adopt this analysis as our own and

affirm on this basis.

      Accordingly, having found no merit in the issue raised on appeal, we

will affirm the order denying Culver’s Petition for Writ of Habeas Corpus.

      Order affirmed. Counsel permitted to withdraw.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2015




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