J-S55033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EDWARD MARSH                         :
                                               :
                       Appellant               :   No. 458 WDA 2019

             Appeal from the PCRA Order Entered February 28, 2019
     In the Court of Common Pleas of Somerset County Criminal Division at
                        No(s): CP-56-CR-0000098-2017


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED NOVEMBER 14, 2019

        Appellant, James Edward Marsh, appeals from the order entered

February 28, 2019, that denied his first petition filed under the Post Conviction

Relief Act (“PCRA”).1 We remand with instructions.

        At Docket Number CP-56-CR-0098-2017 (“98-17”), on June 22, 2017,

Appellant pleaded guilty to burglary and receiving stolen property. 2         On

September 7, 2017, Appellant was sentenced for these convictions, as well as

for the convictions at four other docket numbers:          CP-56-CR-1003-2016

(“1003-16”), CP-56-CR-0099-2017 (“99-17”), CP-56-CR-0100-2017 (“100-



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. §§ 3502(a)(4) and 3925(a), respectively.
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17”), and CP-56-CR-0206-2017 (“206-17”). His sentences for these actions

were as follows:

      For 1003-16, Appellant was sentenced to six months of probation, to
      be served concurrently to all his other sentences.

      For 98-17, the current appeal, Appellant was sentenced to an aggregate
      judgment of sentence of 12 to 24 months of confinement. Appellant
      was “entitled to credit for time served in this case, totalling 224 days,
      extending from January 27th, 2017, to September 7th, 2017.”
      Sentence Order, 9/7/2017, at 2; see also N.T., 9/7/2017, at 10.

      For 99-17, Appellant was sentenced to 24 to 48 months of confinement
      to be served consecutively to the sentences at Docket Numbers 98-17,
      100-17, and 206-17. Appellant received credit for time served of 220
      days.

      For 100-17, Appellant was sentenced to 24 to 48 months of
      confinement to be served consecutively to the sentences at Docket
      Numbers 98-17, 99-17, and 206-17. Appellant received credit for time
      served of 232 days.

      For 206-17, Appellant was sentenced to 6 to 12 months of confinement
      to be served consecutively to the sentences at Docket Numbers 98-17,
      99-17, and 100-17. Appellant was “entitled to credit for time served in
      this case totalling 183 days, extending from March 8th, 2017, to
      September 7th, 2017.” Sentence Order, 9/7/2017, at 4; see also N.T.,
      9/7/2017, at 12.

During the sentencing hearing, the trial court stated:

      The sentences in cases Nos. 98[-]17, 99[-]17, 100[-]17,
      and 206[-]17, shall be served consecutively; thereby
      creating an aggregate sentence of not less than 66 months nor
      more than 132 months’ incarceration in a State Correctional
      Institution. . . . I’ll go back to what I dictated a moment ago, which
      is to reiterate that the sentence in case Nos. 98[-17], 99[-17],
      100[-17], and 206[-]17, shall be served consecutively, creating
      an aggregate sentence of not less than 66 months, nor more than
      132 months’ incarceration, in a State Correctional Institution.




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Id. at 12-13 (some emphasis omitted). The written sentencing order states:

“The sentencing in Case Nos. 98[-17], 99[-17], 100[-17], and 206[-

]17, shall be served consecutively, creating an aggregate sentence of not

less than 66 months, nor more than 132 months’ incarceration, in a state

correctional institution.”       Sentence Order, 9/7/2017 (emphasis added).

Appellant did not file a direct appeal at 98-17.

       On August 27, 2018, Appellant filed his first, pro se, timely PCRA

petition. The PCRA court appointed counsel to represent Appellant, who filed

an amended PCRA petition on October 23, 2018. On February 28, 2019, the

PCRA court held an evidentiary hearing and denied Appellant’s petition. On

March 5, 2019, Appellant filed this timely appeal.3

       Appellant presents the following issue for our review:

       Whether the [PCRA] court erred in dismissing Appellant’s
       amended post-conviction collateral relief act petition by finding
       that Appellant did not establish the ineffective assistance of trial
       counsel.

Appellant’s Brief at 5.

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).



____________________________________________


3Appellant filed his statement of errors complained of on appeal on March 29,
2019. The trial court entered its opinion on July 3, 2019.

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     Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543,

which provides in pertinent part:

     To be eligible for relief under this subchapter, the petitioner must
     plead and prove by a preponderance of the evidence all of the
     following:

           (1) That the petitioner has been convicted of a crime
           under the laws of this Commonwealth and is at the
           time relief is granted:

              (i)  currently  serving   a   sentence     of
           imprisonment, probation or parole for the crime;

42 Pa.C.S. § 9543(a) (emphasis added); see also Commonwealth v.

Ahlborn, 699 A.2d 718, 720 (Pa. 1997).

     We cannot determine from the existing record whether Appellant is

currently serving a sentence at the instant docket number, 98-17. Although

the written sentencing order states that Appellant’s sentences for 98-17, 99-

17, 100-17, and 206-17 “shall be served consecutively,” Sentence Order,

9/7/2017, at 4, we have no indication of the order in which the sentences for

each docket number were arranged, how credit for time served was

distributed, or how these sentences may have been divided between

confinement and possible future parole.    The notes of testimony from the

sentencing hearing do not provide any clarification on these points.        N.T.,

9/7/2017, at 12-13.

     For example, the sentence for 98-17 could have been served first, with

99-17, 100-17, and 206-17 following in sequence. Appellant was sentenced

on September 7, 2017, but, with 224 days credited for time served, his

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sentence for 98-17 began on January 27, 2017. Sentence Order, 9/7/2017,

at 2; N.T., 9/7/2017, at 10. His maximum sentence at 98-17 was 24 months.

Accordingly, if his sentence for 98-17 was served first, his sentence could have

been completed by January 27, 2019, at the latest. If so, Appellant is not

currently imprisoned, on probation, or on parole at 98-17, and, consequently,

is not eligible for relief under the PCRA. 42 Pa.C.S. § 9543(a)(1)(i); Ahlborn,

699 A.2d at 720.

      However, in another example, his sentences could have been served in

order beginning with 206-17, followed by 100-17, then 99-17, and ending

with 98-17. Appellant was sentenced on September 7, 2017, but, with 183

days credited for time served, his sentence for 206-17 began on March 8,

2017. Sentence Order, 9/7/2017, at 4; N.T., 9/7/2017, at 12. His maximum

sentence at 206-17 was 12 months. Accordingly, if his sentence for 206-17

was served first, his sentence could have been completed by March 8, 2018.

If his sentence for 100-17 then commenced, he may not finish serving the

maximum sentence for 100-17 until 2021 and, ergo, may not have yet begun

his sentences for 99-17 and 98-17. If so, then Appellant is eligible for relief

pursuant to the PCRA, and we may address the merits of his appeal. See 42

Pa.C.S. § 9543(a)(1)(i).

      Yet a third possibility is that Appellant has only served the 12-month

minimum of his sentence at 98-17, and the remaining 12 months of his

sentence have been delayed until the completion of the minimum terms from


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his other docket number, with that remaining 12 months from 98-17 possibly

to be served as parole and not confinement. In this instance, Appellant would

be eligible for relief pursuant to the PCRA, and we could address the merits of

his appeal. See 42 Pa.C.S. § 9543(a)(1)(i).

      In conclusion, we have no means of discerning whether Appellant has

completed his sentence at 98-17, and, whether he is thereby even eligible for

PCRA relief pursuant to 42 Pa.C.S. § 9543(a)(1). We therefore remand the

current matter to the PCRA court for it to make this determination. The PCRA

court may hold any additional hearings that it deems necessary in order to

determine Appellant’s eligibility pursuant to 42 Pa.C.S. § 9543(a)(1).     The

parties may call witnesses and present evidence, including presenting any

records or witnesses from the Pennsylvania Department of Corrections. The

PCRA court must make this determination of Appellant’s eligibility for relief

pursuant to 42 Pa.C.S. § 9543(a)(1) within thirty days of the date that the

certified record for 98-17 is returned to the Somerset County Clerk of Courts.

The PCRA court’s determination must be included with the certified record

when it is returned to this Court following remand.

      Case remanded with instructions. Panel jurisdiction retained.




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