J-S39010-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ANTHONY FELICIANO,

                         Appellant                   No. 2725 EDA 2014


               Appeal from the PCRA Order August 19, 2014
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0002321-2008



BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                               FILED JULY 07, 2015

      Anthony Feliciano appeals from the August 19, 2014 order dismissing

his PCRA petition as untimely. We vacate the order since the PCRA court did

not have jurisdiction to entertain the petition due to a pending appeal.

      On June 10, 2009, Appellant pled guilty to one count of possession

with intent to deliver. At the time of the plea, counsel for Appellant and the

Commonwealth agreed to a minimum sentence not less than the bottom of

the standard range and to waive the mandatory minimum for the offense.

On July 15, 2009, Appellant was sentenced to eight to twenty years

imprisonment.

      Appellant filed a motion for reconsideration of sentence on July 24,

2009, which was denied. He did not file a direct appeal. On June 25, 2010,
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Appellant filed a timely pro se petition for PCRA relief, counsel was

appointed, and counsel filed an amended petition and second amended

petition on Appellant’s behalf. In the latter, Appellant alleged that his guilty

plea was unlawfully induced by the Commonwealth’s representation that it

would recommend that the sentence run concurrent to any sentence of back

time he would receive for his state parole violation.

      At a November 19, 2010 evidentiary hearing, Appellant testified that

he was promised that the two sentences would run concurrently.               He

maintained that he believed the district attorney was going to write a letter

on his behalf to the parole board recommending that the sentence imposed

on the possession with intent charge and the back time on the parole

violation run concurrently, but that he was now aware that the two cannot

legally run concurrently.   He asked the court to modify his sentence in

accordance with Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976)

(holding that where a plea bargain has been entered into and is violated by

the Commonwealth, the defendant is entitled to the benefit of his bargain).

      Appellant acknowledged to the PCRA court that at the time of the

guilty plea, he had sworn under oath that no additional promises were made

to him other than those presented in open court. He was also confronted

with the notes of testimony from both the plea hearing and sentencing

where he was advised by the court and counsel that he would have to serve

parole violation time in addition to the sentence imposed on the current

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offense.    Finally, Appellant was shown the sentencing transcript where his

counsel argued for a mitigated sentence due to the fact that Appellant would

also have to serve back time on the parole violation and Appellant echoed

that same argument on his own behalf. Trial counsel testified that there was

no agreement as to back time and that he so advised Appellant. The PCRA

court found that the guilty plea in the underlying case was not unlawfully

induced and denied relief.         This Court affirmed the decision of the PCRA

court on June 29, 2011.            Commonwealth v. Feliciano, 31 A.3d 758

(Pa.Super. 2011).

        On January 13, 2014, Appellant filed a pro se motion for clarification of

intended sentences in which he reiterated the same claim that the sentences

were to run concurrently and asked the trial court to clarify that for the

Board of Corrections. The court denied the motion on January 14, 2014, and

Appellant appealed to this Court on January 29, 2014.1

        On July 10, 2014, despite the pending appeal, Appellant filed the

within petition for writ of habeas corpus. The trial court treated the petition

as a PCRA petition and issued Rule 907 notice of intent to dismiss on July

22, 2014, due to untimeliness.          Appellant filed a response on August 11,

2014, and by order of August 19, 2014, the court found that Appellant’s

response merely reiterated that same assertions previously raised and
____________________________________________


1
    That appeal, 359 EDA 2014, is also assigned to this panel.



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rejected in his first PCRA petition, i.e., that the June 10, 2009 guilty plea

was illegally induced. Appellant also alleged that Alleyne v. U.S., 133 S.Ct.

2151 (2013) announced a new constitutional right and that it should be

retroactively applied.2       The PCRA court denied relief and dismissed the

petition as untimely on August 19, 2014. Appellant filed a notice of appeal

to the Supreme Court, but it was transferred to this Court for disposition.

       Appellant raises four issues for our review:

       1.     Did the Pennsylvania Legislature and-or court of common
       pleas “suspend” the writ of habeas corpus in violation
       Pennsylvania Constitution Article I, § 14 and U.S. Constitution
       Article I, § 9(2)?

       2.    Did the Pennsylvania Legislature and compliant trial court
       create/follow sentencing statutes/procedures in violation
       separation of powers doctrine of Pennsylvania and U.S.
       Constitution?

       3.    Did the Pennsylvania Legislature and trial court ignore the
       mandates and supremacy of the U.S. Constitution amendments
       5, 6, 14?

       4.    Must the illegal sentences imposed in this case be
       corrected?

Appellant’s brief at 5.

       Although we agree with the PCRA court’s conclusion that the instant

habeas petition is an untimely PCRA, we note that Appellant filed the within

petition in the trial court while this case was already on appeal to this Court.
____________________________________________


2
  Appellant did not explain how Alleyne v. United States, 133 S.Ct. 2151
(2013) was implicated in a plea agreement.



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The appeal of the clarification order operated to divest the trial court of

jurisdiction to rule on the petition. Pa.R.A.P. 1701(a) (“Except as otherwise

prescribed by these rules, after an appeal is taken or review of a

quasijudicial order is sought, the trial court or other government unit may no

longer proceed further in the matter.”). Absent jurisdiction, the order is a

legal nullity.

      Order vacated.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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