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Commonwealth v. Heredia

Superior Court of Pennsylvania

July 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MIGUEL HEREDIA, Appellant

Submitted February 18, 2014

Appeal from the PCRA Order of the Court of Common Pleas, Philadelphia County, Criminal Division, No.: CP-51-CR-0000880-2009. Before BRIGHT, J.

Elayne Bryn, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: SHOGAN, J., OTT, J., and PLATT, J.[*] Shogan, J., files a Concurring and Dissenting Opinion.

OPINION

Page 393

PLATT, J.

Appellant, Miguel Heredia, appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § § 9541-9546. Appellant challenges the failure of the Department of Corrections (DOC) to award him credit for time served, in the face of the trial court's sentencing order expressly granting it. Appellant's claim is not cognizable under the PCRA. Accordingly, we affirm.

On September 17, 2009, Appellant entered a negotiated guilty plea to one count each of possession with intent to deliver a controlled substance and criminal conspiracy.[1] The charges stemmed from Appellant's delivery of cocaine to a cohort for street sale. On December 7, 2009, the trial court sentenced Appellant to an aggregate term of not less than four nor more than eight years' incarceration, followed by five years' probation. The court also granted Appellant credit for any time served. (See Order of Sentence, 12/07/09, at 1). Appellant did not file a direct appeal.

On January 18, 2011, Appellant, acting pro se, filed the instant PCRA petition. Appointed counsel filed an amended petition on August 2, 2012. On February 22, 2013, the court issued notice of its intent to dismiss the PCRA petition without a hearing. See Pa.R.Crim.P. 907(1). On March 28, 2013, the court entered its order dismissing Appellant's PCRA petition. Appellant timely appealed.[2]

Appellant raises the following issue for our review:

1. Whether the PCRA [c]ourt erred by denying [Appellant's] request for post-conviction relief, specifically the request for an order stating that he is to receive time credit for the time he spent in custody prior to the time that he was sentenced and the [DOC] is to correct the prison record accordingly[?]

Page 394

(Appellant's Brief, at 3) (record citations omitted).

Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Barndt, 2013 PA Super. 206, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations and quotation marks omitted).

In his issue on appeal, Appellant argues that " he is entitled to post conviction relief because the [DOC] did not give him credit for time that he spent incarcerated prior to his guilty plea." (Appellant's Brief, at 7). The crux of Appellant's claim is that the DOC improperly relied on the commitment form DC-300B [3] prepared by the clerk of courts granting him no credit for time served, instead of relying on the sentencing order signed by the judge and entered on the docket, which specifically granted him credit for time served. (See id. at 7-13; see also PCRA Petition, 1/18/11, at 3-" 3A" ). Appellant maintains that he first learned of this error on December 13, 2010, when he received a copy of the commitment form (dated December 7, 2009) from the Clerk of Quarter Sessions in Philadelphia, per his request. (See Appellant's Brief, at 5; see also PCRA Petition, 1/18/11, at 3, Exhibit " A" ). Appellant frames his issue as a challenge to the legality of his sentence. (See Appellant's Brief, at 7).

Before we may address the merits of Appellant's issue, we must first determine whether it is cognizable under the PCRA. The Commonwealth contends that Appellant's claim seeking correction of the DOC's alleged error is an administrative matter and therefore is not cognizable. (See Commonwealth's Brief, at 6-8). The PCRA court, relying on this Court's decision in Commonwealth v. Perry, 386 Pa.Super. 534, 563 A.2d 511 (Pa. Super. 1989), also concluded that Appellant's claim is not cognizable by it. (See PCRA Court Opinion, 7/11/13, at unnumbered pages 3-4). We agree with the Commonwealth and the court.

The PCRA sets forth its scope [in pertinent part] as follows:

This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction.
42 [Pa.C.S.A.] § 9542. . . . In construing this language, Pennsylvania Courts have repeatedly held that the PCRA contemplates only challenges to the propriety of a conviction or a sentence.

Commonwealth v. Masker, 2011 PA Super. 271, 34 A.3d 841, 843 (Pa. Super. 2011) ( en banc ), appeal denied, 616 Pa. 635, 47 A.3d 846 (Pa. 2012) (case citations omitted) (emphasis in original; some emphasis added).

In Perry, supra, this Court held that a PCRA petition is not the proper method for contesting the DOC's calculation

Page 395

of sentence. See Perry, supra at 512-13. The Perry Court explained:

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. 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.
It [is] 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. (citations and emphasis omitted).[4]

Here, the record reflects that the trial court, when imposing Appellant's sentence, expressly and unambiguously granted him " credit for any time served." (Order of Sentence, 12/07/09, at 1; N.T. Sentencing, 12/07/09, at 19). Thus, Appellant's characterization that he challenges the legality of his sentence is inaccurate. His real allegation of error is that the DOC failed to follow the court's sentence. (See PCRA petition, 1/18/11, at 3-" 3A" (stating that " on my order of sentence [the trial court] gave me time credit for anytime served. My DC-300B papers [state] that there are [zero] days credit[.] . . . Time credit that was ordered by the court was not honored on the DC-300B." )).[5] Therefore, Appellant wishes the DOC to enforce the trial court's sentencing order as valid, and he is not challenging " the propriety of [his] conviction or [his] sentence." Masker, supra at 843 (case citations omitted). As a result, we conclude that Appellant has not raised a claim that is cognizable under the PCRA. See Perry, supra at 513. Accordingly, we affirm the order of the PCRA court.[6]

Order affirmed.

Shogan, J., files a Concurring and Dissenting Opinion.

Page 396

CONCURRING AND DISSENTING OPINION

SHOGAN, J.

I agree with the Majority's conclusion that Appellant's claim is not cognizable under the PCRA. However, because there is a patent inconsistency between the sentencing order and commitment order, both of which the Department of Corrections is required to follow, I am compelled to write separately. As discussed below, a writ of habeas corpus ad subjiciendum is the proper means by which Appellant should seek redress. Accordingly, I respectfully dissent from the Majority's conclusion that Appellant is required to pursue an original action in the Commonwealth Court.

In Commonwealth v. Perry, 386 Pa.Super. 534, 563 A.2d 511 (Pa. Super. 1989), a panel of this Court clarified the appropriate procedure for presenting a sentencing challenge based on credit for time served, as follows: 1) If the alleged error is thought to be the result of an erroneous computation of sentence by the Department of Corrections, the appropriate vehicle for redress is in an original action in the Commonwealth Court challenging the Department's computation of time; 2) if the defendant is challenging the legality of a trial court's alleged failure to award credit for time served, it presents a due process claim that is cognizable under the PCRA; and 3) if the alleged error is thought to be attributable to ambiguity in the sentence imposed by the trial court, the defendant should file a writ of habeas corpus ad subjiciendum with the trial court for clarification and/or correction of the sentence imposed. Perry, 563 A.2d at 512-513 (citations omitted) (emphasis added).

Here, there is no erroneous computation of time by the Department of Corrections. The sentencing transcript reveals that the trial court awarded Appellant credit for time served (N.T., 12/7/09, at 19), and the sentencing order granted Appellant credit for time served (Order of Sentence, 12/7/09). However, Form DC-300B, the trial court document that commits a defendant into custody, does not provide Appellant credit for time served.

Form DC-300B is a Court Commitment order that is generated by the Common Pleas Criminal Court Case Management System of the Unified Judicial System. See 42 Pa.C.S.A. § 9764(a); see also 37 Pa. Code § 96.4. Thus, I agree with the Majority that Form DC-300B is required when an inmate is placed into DOC custody. Maj. Op. at footnote 3. However, because, as the Majority points out, the court-generated Form DC-300B is required in tandem with the sentencing order, I cannot agree that the Department of Corrections may ignore or correct inconsistencies between Form DC-300B and the sentencing order. Form DC-300B is a

Page 397

court commitment order, not a Department of Corrections document, and it cannot be modified or disregarded by the Department of Corrections. See Spotz v. Commonwealth, 972 A.2d 125, 131 (Pa. Cmwlth. 2009) (stating " Even though the Court Commitment order, Form DC-300B, was completed on the court's behalf by the clerk and was not signed by the sentencing judge, the Department did not err in relying on that form which indicated that Boyd had been ordered to pay $5,000.00 in fines, $335.20 in costs and $3,240.00 in restitution by the sentencing court." ) (emphasis added), quoting Boyd v. Com., Pennsylvania Dept. of Corrections, 831 A.2d 779, 783 n.6 (Pa. Cmwlth. 2003). Thus, there is a patent inconsistency in the trial court's sentencing order and commitment order.

Indeed, it is apparent from Appellant's PCRA petition and brief that he is not simply challenging the Department of Corrections' computation of credit for time served or the trial court's failure to award credit for time served. Rather, Appellant is arguing ambiguity in that the Philadelphia County Court of Common Pleas issued a Form DC-300B containing incorrect information. Therefore, Appellant is seeking clarification and/or correction of the sentence imposed.

Accordingly, a petition for a writ of habeas corpus ad subjiciendum, for clarification and/or correction of the sentence, rather than an original action in Commonwealth Court [1] or a PCRA petition, is the proper vehicle for Appellant's challenge. Perry, 563 A.2d at 513. Therefore, I would affirm the PCRA court's order denying Appellant PCRA relief without prejudice to his ability to pursue his claim in a writ of habeas corpus ad subjiciendum in the trial court.


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