J-S66028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC LONG                                  :
                                               :
                       Appellant               :   No. 721 EDA 2018

                 Appeal from the PCRA Order February 22, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001458-2011


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                                FILED APRIL 04, 2019

        Eric Long appeals from the order entered February 22, 2018 dismissing

his first petition filed under the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. § 9541-9546. Upon careful review, we reverse and remand for

further proceedings.

        The relevant facts and procedural history are as follows. On January 19,

2011, Appellant was arrested and charged with Robbery, 1 Burglary,2 and

related offenses. At the time of his arrest, Appellant was on state parole. On

July 3, 2012, in exchange for the Commonwealth’s agreement to drop all other

charges and run the sentences concurrently with each other and with his

sentence for violating his parole (his “backtime”), Appellant pled guilty to one

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1   18 Pa.C.S.A. § 3701(a)(1)(ii).

2   18 Pa.C.S.A. § 3502(a).
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count each of robbery and burglary. The trial court imposed the negotiated

sentence of eight to seventeen years’ imprisonment. Appellant did not file a

direct appeal.

       Instead, he filed a timely pro se PCRA petition, alleging, inter alia, 3 that

the Parole Board refused to run his backtime sentence concurrent to

Appellant’s new sentences. Instead, the Parole Board determined that

Appellant would not begin serving his new sentences until April of 2015, when

Appellant was eligible for reparole. See Notice of Board Decision, 10/24/12.

Therefore, Appellant asserted he did not receive the benefit of the bargain in

his deal with the Commonwealth because he did not receive proper time credit

on his new sentences for time served. The PCRA court appointed counsel, who

filed several amendments4 to Appellant’s PCRA petition.

       On October 5, 2017, the PCRA court granted Appellant’s petition, in part,

by ordering Appellant receive time credit from the date of sentencing, July 3,

2012 to April 2, 2015. However, after an evidentiary hearing, the PCRA court

determined that because guilty plea counsel informed Appellant that the

Parole Board may refuse to run Appellant’s new sentences concurrently with

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3 Through his petition, Appellant also claimed his right to a speedy trial was
violated, the witness identification process was unduly suggestive, that his
guilty plea was unlawfully induced, and that guilty plea counsel was ineffective
for failing to preserve these arguments on appeal. See Appellant’s PCRA
Petition, 12/10/12, at 4-30. However, we need not reach these arguments as
Appellant has abandoned these claims on appeal.

4 Appellant’s petition was amended, and/or supplemented, on May 2, 2014,
February 10, 2016, June 14, 2017, and September 11, 2017.

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his backtime, he was not entitled to time credit from the date of his arrest,

January 19, 2011, to the date of sentencing. Therefore, the PCRA court

dismissed the remainder of Appellant’s petition as meritless on February 22,

2018. This timely appeal follows.

      On appeal, Appellant raises one issue:

      I.    Did the trial court err in denying [A]ppellant credit for time
            served on his sentence from the date of his arrest to the
            date of his sentence because this is what the parties agreed
            to and what the trial court approved in the negotiated guilty
            plea?

Appellant’s Brief, at 2.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      Appellant contends he is entitled to post-conviction relief because the

denial of proper time credit towards his new sentences deprived him of the

benefit of the bargain. As Appellant contends that the denial of time credit

results in an illegal sentence, he asserts he is entitled to PCRA relief. See 42

Pa.C.S.A. § 9542 (specifically providing a route for “persons serving illegal

sentences [to] obtain collateral relief”). We need not address these arguments

as we conclude Appellant’s sentence is illegal on a different basis.




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      Generally, “this Court … may not reverse, modify, or vacate an order or

judgment    of    sentence    for   a   reason   not   raised   by   the   parties.”

Commonwealth v. Butler, 173 A.3d 1212, 1214 (Pa. Super. 2017) (citation

omitted). However, a challenge to the legality of sentence may be raised by

this Court sua sponte. See Commonwealth v. Orellana, 86 A.3d 877, 882

n. 7 (Pa. Super. 2014) (citation omitted).

      A challenge to the legality of sentence … may be entertained as
      long as the reviewing court has jurisdiction. It is also well
      established that if no statutory authority exists for a particular
      sentence, that sentence is illegal and subject to correction. An
      illegal sentence must be vacated. Issues relating to the legality of
      a sentence are questions of law… Our standard of review over such
      questions is de novo and our scope of review is plenary.

Commonwealth v. Wolfe, 106 A.3d 800, 801-802 (Pa. Super. 2014)

(internal citations, brackets, and quotation marks omitted).

      We have jurisdiction to review Appellant’s sentence, as he filed his PCRA

petition less than one year after the sentence was imposed. See 42 Pa.C.S.A.

§ 9545(b)(1). Further, we conclude the sentence violates the Parole Act, 61

Pa.C.S.A. §§ 6101-6153.

      Section 6138(5) of the Parole Act states, in relevant part,

      § 6138. Violation of terms of parole

      (5) If a new sentence is imposed on the parolee, the service of
      the balance of the term originally imposed by a Pennsylvania court
      shall precede the commencement of the new term imposed in the
      following cases:

      (i)        If a person is paroled from a State correctional institution
                 and the new sentence imposed on the person is to be
                 served in the State correctional institution.

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61 Pa.C.S.A. § 6138(5)(i).

       “In other words, where a state parolee gets a new state sentence, he

must serve his backtime first before commencement of the new state

sentence.” Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super.

2016) (citation omitted). Therefore, any attempt to impose a new state

sentence concurrent with a parolee’s backtime on the original sentence is an

illegal sentence. See id. (citation omitted).

       Here, Appellant entered into an agreement with the Commonwealth to

plead guilty in exchange for sentences concurrent to each other and to his

state parole sentence. The trial court imposed this sentence as requested.

However, this sentence is illegal. See 61 Pa.C.S.A. § 6138(a)(5)(i); see also

Kelley, 136 A.3d at 1013 (citation omitted). Further, the PCRA court erred in

failing to recognize the nature of Appellant’s illegal sentence and grant him an

opportunity for relief.5 As such, we reverse the order denying PCRA relief,

vacate the illegal judgment of sentence, and remand for further proceedings.

       Order reversed; case remanded for further proceedings. Jurisdiction

relinquished.




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5 While the PCRA court did grant Appellant relief in ordering time credit on his
new sentences from July 3, 2012 to April 2, 2015, this order was improper as
it exacerbated the sentencing order’s violation of the Parole Act. See 61
Pa.C.S.A. § 6138(a)(5)(i). As in Kelley, Appellant is not entitled to specific
performance of his plea agreement. See Kelley, 136 A.3d at 1014.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/19




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