Opinion
J-S77019-18 No. 1705 EDA 2018
01-29-2019
COMMONWEALTH OF PENNSYLVANIA v. MARK A. PEREZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 29, 2018
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007249-2009 BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Mark A. Perez, appeals pro se from the May 29, 2018 Order entered in the Montgomery County Court of Common Pleas dismissing his Petition for Writ of Habeas Corpus Ad Subjiciendum, which the court treated as an untimely serial Petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we are constrained to reverse.
The relevant facts and procedural history are as follows. On June 20, 2011, Appellant entered into a negotiated guilty plea to charges of Aggravated Assault, Robbery, Theft by Unlawful Taking, Burglary, and Persons Not to Possess a Firearm. The trial court sentenced Appellant to an aggregate term of 15-30 years' incarceration (the "Montgomery County Sentence"). Appellant filed a Motion to Withdraw Guilty Plea, which the trial court denied. On August 14, 2012, this Court affirmed Appellant's Judgment of Sentence. See Commonwealth v. Perez , 2014 EDA 2011 (Pa. Super. filed Aug. 14, 2012) (unpublished memorandum). Appellant did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.
18 Pa.C.S. §§ 2702(a)(1); 3701(a); 3921(a); 3502(a); 6105(a)(1), respectively.
Appellant unsuccessfully sought PCRA relief in 2012, 2014, and 2016. Relevantly, in his appeal from the December 10, 2014 Order dismissing his second PCRA Petition, Appellant claimed that the PCRA court erred in failing to credit his 15- to 30-year Montgomery County Sentence with the time he served on a separate Philadelphia County sentence (the "Philadelphia County Sentence"), which the Philadelphia County Court of Common Pleas vacated on September 26, 2014.
On June 20, 2011, Appellant pleaded guilty to Possession with Intent to Deliver at Philadelphia County docket number 006351-2008, and the court sentenced him to a term of 1-2 years' incarceration. On September 26, 2014, after Appellant had served the entirety of his sentence, the Philadelphia court vacated Appellant's conviction and sentence following the revelation that the arresting officer in that case, Officer Jeffrey Walker, had been fabricating facts to support affidavits of probable cause for his arrests and had planted drugs, stolen drugs and money, and lied in police paperwork and in court. See Commonwealth v. Perez , No. 162 EDA 2015 (unpublished memorandum) at 6 (Pa. Super. filed Nov. 12, 2015).
In reviewing Appellant's claim, this Court determined that Appellant had not challenged the legality of his sentence, but rather sought clarification and/or correction of the sentence imposed by the Court, which he alleged should include credit for time served on his vacated Philadelphia County conviction. See Commonwealth v. Perez , No. 162 EDA 2015 (unpublished memorandum) at 10 (Pa. Super. filed Nov. 12, 2015). This Court, thus, concluded that Appellant's claim was not cognizable under the PCRA. Id. at 10-11, citing Commonwealth v . Heredia , 97 A.3d 392 (Pa. Super. 2014). In particular, this Court noted that when the trial court initially imposed Appellant's Montgomery County Sentence, Appellant was not entitled to credit for the time he served on the Philadelphia conviction, as that conviction had not yet been vacated. Thus, Appellant's Montgomery County Sentence was legal and he was not entitled to PCRA relief.
In Heredia , this Court explained that the appropriate procedure for presenting a sentencing challenge based on credit for time served is an original action in the Commonwealth Court challenging the Bureau of Correction's computation of sentence. Heredia , 97 A.3d at 395. The Heredia Court emphasized that "only 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 sentence, that a challenge to the sentence is deemed cognizable as a due process claim in PCRA proceedings." Id. (emphasis added) (quoting Commonwealth v. Perry , 563 A.2d 511, 513 (Pa. Super. 1989).
On March 30, 2018, Appellant filed the instant, counselled Petition for Writ of Habeas Corpus for clarification of sentence, renewing his claim that he is entitled to credit for the time he served on his now-vacated Philadelphia County Sentence. Petition, 3/30/18, at 1-2. The lower court treated Appellant's Petition as a serial PCRA Petition.
On May 1, 2018, the PCRA court notified Appellant of its intent to dismiss the Petition without a hearing pursuant to Pa.R.Crim.P. 907, concluding that it lacked jurisdiction to consider the merits of Appellant's issue because the Petition was untimely. Appellant filed a counselled Response to the court's Rule 907 Notice on May 14, 2018.
On May 18, 2018, Appellant's counsel filed a Petition to Withdraw as Counsel. The lower court permitted counsel to withdraw on June 6, 2018.
On May 29, 2018, the PCRA court dismissed Appellant's Petition for Writ of Habeas Corpus. This appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following three issues on appeal, which we have reordered for ease of disposition:
1. Whether the lower court erred by construing Petition for Writ of Habeas Corpus [ad] Subjiciendum for Clarification for Credit for Time Served as an untimely PCRA Petition?Appellant's Brief at 4.
2. Whether this case should be remanded to the trial court for an evidentiary hearing on Petition for Writ of Habeas Corpus [ad] Subjiciendum for Clarification for Credit for Time Served?
3. Whether Appellant is entitled to all credit for time served towards Montgomery County Sentence due to Philadelphia County conviction and sentence being vacated and there was a detainer lodged against Appellant on the Montgomery County Sentence?
In his first issue, Appellant claims that the lower court erred in treating his Petition for Writ of Habeas Corpus as an untimely PCRA Petition. Appellant's Brief at 7-8.
The PCRA is intended to be the sole means of achieving post-conviction relief. See 42 Pa.C.S. § 9542. It is well settled that a collateral petition, which raises issues cognizable under the PCRA, should be treated as a PCRA petition. See Commonwealth v. Deaner , 779 A.2d 578, 580 (Pa. Super. 2001). However, "Pennsylvania [c]ourts have repeatedly held that the PCRA contemplates only challenges to the propriety of a conviction or a sentence." Commonwealth v. Masker , 34 A.3d 841, 843 (Pa. Super. 2011) (en banc).
Here, contrary to the PCRA court's assessment, Appellant has not raised any claim cognizable under the PCRA. Rather, he has claimed entitlement to credit for the time he served on his Philadelphia County Sentence for a conviction that the Philadelphia County court later vacated. As this Court in Heredia made clear, a claim of this nature is not cognizable under the PCRA. Given the relief Appellant sought, he properly filed a Petition for Writ of Habeas Corpus. See Commonwealth v . Perry , 563 A.2d 511, 512-13 (Pa. Super. 1989) (explaining that a petitioner should raise a challenge to the calculation of credit for time served either in an original action brought in Commonwealth Court or in a writ of habeas corpus ad subjiciendum filed in the trial court). Accordingly, the PCRA court erred in treating Appellant's Petition for Writ of Habeas Corpus as a serial PCRA Petition.
We note that the Commonwealth Court has exercised original jurisdiction over claims that a defendant is entitled to time-credit on a current sentence based on the dismissal of a prior conviction for which the defendant has already served a sentence. See Gasper v. Commonwealth , Bd. of Prob. & Parole , 388 A.2d 1139, 1141 (Pa. Cmwlth. 1978) (holding that the period of time defendant served on sentence that was subsequently dismissed was properly credited against a later sentence for a different crime).
In his second issue, Appellant claims he is entitled to a hearing on his Petition for Writ of Habeas Corpus. Appellant's Brief at 8. In its Opinion in support of dismissal, the PCRA court did not reach the merits of Appellant's claim that he is entitled to credit for time served because it erroneously concluded that it was without jurisdiction to do so. See PCRA Ct. Op., 8/6/18, at 7. As discussed, supra , Appellant's Petition for Writ of Habeas Corpus was the proper method for Appellant to seek review of his claim for time-served credit. We, thus, remand for the lower court to consider the merits of Appellant's claim.
In light of this disposition, we need not address Appellant's remaining issue on appeal.
Order reversed. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/29/19