J-S44019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAJAH WALTON                               :
                                               :
                       Appellant               :   No. 3002 EDA 2017

                     Appeal from the Order August 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0015897-2013


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 26, 2018

        Rajah Walton (Appellant) appeals pro se from the trial court’s order

denying his “motion for time credit and corrected commitment.” We affirm.

        On April 9, 2014, Appellant entered a negotiated guilty plea to one count

of aggravated assault.1 The same day, the trial court sentenced Appellant to

2 – 4 years of incarceration, followed by 6 years of probation. The court also

specified that Appellant was to be given credit for time served.        Order –

Negotiated Guilty Plea, 4/19/14, at 1. Appellant did not file a direct appeal.

        On August 4, 2017, Appellant filed his pro se motion for time credit and

corrected commitment, in which he averred that he had not received credit

for his period of incarceration prior to sentencing, from August 13, 2013 to

April 9, 2014. On August 22, 2017, the trial court denied the motion and,

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1   18 Pa.C.S.A. § 2702.
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referencing the April 9, 2014 sentencing order, stated that “credit was already

given for time served.” Order, 8/22/17. Appellant filed this timely appeal.

Both the trial court and Appellant have complied with Pa.R.A.P. 1925.

        Appellant presents three related issues:

        1. Whether the lower court improperly determined that the credit
           at issue was absorbed by the parole board violation [sic].

        2. Whether the lower court was in error when denying
           [Appellant’s] motion for time credit because the time
           [Appellant] was requesting to get credit for did not go towards
           any other sentence.

        3. Whether the lower court was in error in denying [Appellant’s]
           motion for time credit because when [Appellant] signed the
           paperwork for the negotiated guilty plea he was under the
           impression that he would be given credit for time served.

Appellant’s Brief at 1.

        Appellant argues that he did not receive credit for his incarceration from

the time he was arrested until the time he was sentenced. Appellant’s Brief

at 2. He concedes that the trial court “said that he would be given credit for

time served.” Id. He asks this Court to “reverse the decision of the trial

court” and “direct the trial court to correct the commitment to include time

credit for time served and any other relief this [C]ourt deems necessary.” Id.

at 3.

        Preliminarily, we recognize that Appellant properly sought relief without

invoking the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

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



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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 a sentence that a

challenge to the sentence is cognizable in PCRA proceedings) (italics in

original).

       Here, Appellant challenges the calculation of his time served. We have

stated:

       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. See
       Wilson v. Commonwealth, Bureau of Correction, 85
       Pa.Cmwlth. 32, 33-34, 480 A.2d 392, 393 (1984). 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. See Commonwealth
       v. Isabell, 503 Pa. 2, 10, 467 A.2d 1287, 1291 (1983).

Perry, 563 A.2d at 512–13.

       Although Appellant generally asserts, without further argument, that

“ambiguities in a plea agreement must be construed against the government,”

the essence of his argument is that the Bureau of Corrections erred in

computing his time credit. Appellant’s Brief at 3. Appellant states, “Upon

review, of the DC16E . . . the [C]ourt will see that [he] never received credit

for [his] time.” Id. at 2.2 He continues, “when [he] received the DC16E . . .


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2The DC16E is a form that is titled “Sentence Status Summary.” It is issued
by the Department of Corrections and provides details about an inmate’s
sentence, including minimum and maximum dates, sentence start date,
commitment credit, and detainers.

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the paperwork showed that [he] did not receive credit for time served, which

was August 13, 2013 until April 9, 2014.” Id.

      Based on the foregoing, it appears that Appellant should have appealed

his claim regarding the calculation of his time credit not to this Court, but to

the Commonwealth Court. Perry, supra. See also Commonwealth ex rel.

Powell v. Pennsylvania Dept. of Corrections, 14 A.3d 912, 915 (Pa.

Cmwlth. 2011) (where a petitioner does not challenge the underlying sentence

and instead seeks to compel the DOC to carry out the sentence imposed, the

petition is properly filed in Commonwealth Court).

      The above notwithstanding, the trial court addressed the merits of

Appellant’s claim, stating:

      As the sentencing order explicitly states, [Appellant] was to be
      given credit for time served. Since [Appellant] violated state
      parole, credit for time served was to be calculated by the
      Pennsylvania Department of Corrections.

                                      ***

            The Pennsylvania Department of Corrections calculated
      [Appellant’s] sentence in accordance with this [c]ourt’s order;
      however, the initial calculation was incorrect. [Appellant] was
      awarded credit for time served from April 10, 2014 to August 23,
      2014; however, as demonstrated in the original sentence status
      summary, the Department of Corrections failed to account for time
      served by [Appellant] from August 13, 2013 until January 6, 2014;
      as such, [Appellant’s] controlling minimum date and maximum
      date were improperly set at January 7, 2019 and January 7, 2021,
      respectively. (See Commonwealth of Pennsylvania Sentence
      Status Summary dated June 9, 2017, attached hereto and marked
      as Exhibit “C”). After the undersigned contacted the Pennsylvania
      Department of Corrections at SCI Somerset, a revised status
      summary was completed; this summary accurately accounts for
      [Appellant’s] commitment credit from August 13, 2013 to January
      6, 2014 as well as his credit from April 10, 2014 to August 23,

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       2014. [FN 1: Credit for time served from January 7, 2014 to April
       9, 2014 went to [Appellant’s] prior case (CP-51-CR-0504501-
       2005).] (See Commonwealth of Pennsylvania Sentence Status
       Summary dated March 30, 2018, attached hereto and marked as
       Exhibit “D”).    [Appellant’s] controlling minimum date and
       maximum date were also adjusted; these dates are now properly
       set at August 13, 2018 and August 13, 2020, respectively.

Trial Court Opinion, 4/5/18, at 3-4.

       The trial court concluded that Appellant was not owed credit from August

13, 2013 to April 9, 2014 for the underlying case as he alleged in his petition,

but rather, he was owed credit from August 13, 2013 to January 6, 2014. The

trial court stated that Appellant’s sentence was corrected and he was given

the proper credit.      Our review of the DC16E Sentence Status Summary,

attached to the trial court’s opinion as Exhibit D and dated March 30, 2018,

confirms the trial court’s narrative.3 The Remarks section reads: “Version 2

created to add credit at CP15897-2013,” and “Version 2 – CP15897-2013 re-

entry was also awarded credit of 8/13/2013-1/6/2014 (date of arrest to day

before backtime range).          CP15897-2013 re-entry was awarded credit of

4/10/2014-8/23/2014 (date after backtime range to day before custody for

return).”

       For the above reasons, Appellant is not entitled to relief.

       Order affirmed.




____________________________________________


3 In his brief, Appellant attaches only the earlier DC16E Sentence Status
Summary, which as the trial court observed, is dated June 9, 2017.
Appellant’s Brief at Appendix B.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/18




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