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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 359 EDA 2014
Appeal from the Order January 14, 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 January 14, 2014 order denying
his motion for clarification of intended sentences. We affirm.
Appellant was charged in connection with a DEA investigation and
surveillance that culminated in his arrest on April 9, 2008, while in
possession of four kilograms of cocaine and $3,600 in currency. On June 10,
2009, Appellant pled guilty pursuant to a negotiated plea to possession with
intent to deliver cocaine at criminal action number 39-2321 of 2008. The
terms of the plea were stated on the record. In exchange for the
aforementioned plea, the Commonwealth agreed to “waive the mandatory
minimum” and that the standard range bottom would be “the cap of the
minimum sentence.” N.T., 6/10/09, at 2. It was represented that, based on
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Appellant’s prior record score of five, the minimum sentence would be
ninety-six months. Id. at 3. During the colloquy, the court verified with
Appellant that he was on probation or parole when this offense was
committed. Id. at 9. The court specifically inquired whether Appellant
understood that “the State Parole Board acts independently of anything I
might do, but certainly any time that you might owe them will be in addition
to my sentence.” Id. Appellant acknowledged on the record that he
understood. Id. at 10. Appellant also denied that anyone had made him
any promises regarding his sentence other than what was discussed in open
court. Id. at 11.
At sentencing on July 16, 2009, Appellant’s counsel acknowledged that
the offense was committed while Appellant was on state parole. Noting that
Appellant would be incarcerated for a significant period and “that there will
be no double dipping of credit time” since his parole sentence would be
consecutive to the sentence imposed on this conviction, counsel set forth
additional factors in mitigation. N.T., 7/15/09, at 5. Appellant addressed
the sentencing court and acknowledged that “by imposing here the sentence
of ninety-six months, along with parole,” he would be incarcerated for about
ten years. Id. at 8. He sought leniency and asked that the “front number”
be as low as possible. Id. at 9. The court sentenced Appellant on July 15,
2009, to eight to twenty years imprisonment and a $50,000 fine. Appellant
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filed a timely motion for reconsideration of sentence on July 24, 2009, which
was denied that same day. He did not file a direct appeal.
On June 25, 2010, 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 a promise of
concurrency between the parole violation sentence and the sentence being
imposed herein. Amended PCRA Petition at ¶9. He did not seek to withdraw
his plea on this basis but instead requested that his sentence be modified
pursuant to Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976), to enable
him to receive the benefit of his plea bargain.
The PCRA court held an evidentiary hearing. Appellant testified that
his understanding of the plea bargain was that the district attorney would
write a letter recommending that parole back time and the new sentence
would run concurrently. N.T., 11/19/10, at 19. He admitted that this
agreement was not discussed on the record and maintained that he only
learned that it was illegal to run the sentences concurrently several weeks
later. Id. at 20. On cross-examination, Appellant conceded that the court
set forth the terms of the plea when he entered it. While Appellant could not
recall that the court advised him that his parole back time would be in
addition to the sentence imposed, he acknowledged that fact at the hearing.
Id. at 26. He was confronted with the notes of testimony from sentencing
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where he and his counsel asked for a mitigated range sentence due to the
fact that any sentence in this matter would be served in addition to his state
parole time. Id. at 28-31. Trial counsel testified that the plea agreement
did not involve the sentence running concurrently with the sentence on the
parole violation, that the Commonwealth did not represent that it would
recommend concurrency, and that he specifically discussed with Appellant
the presumptive ranges for parole violations. Id. at 41-43. At the
conclusion of the hearing, the PCRA court denied relief and this Court
affirmed on appeal. Commonwealth v. Feliciano, 31 A.3d 758 (Pa.Super.
2011) (unpublished memorandum).
On January 13, 2014, Appellant filed a pro se motion for clarification of
intended sentences in which he averred that he was sentenced pursuant to a
negotiated plea bargain and that it was his understanding that the sentence
imposed would run concurrently to prior sentences. He alleged that the
Department of Corrections was incorrectly treating this sentence as
consecutive to prior sentences, and he asked the court to issue an order
clarifying that his July 15, 2009 sentence was to run concurrently. The trial
court denied the motion.
Appellant filed the within appeal from the denial of the motion. His
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
identified a different alleged error: that the court, by failing to designate the
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sentence as concurrent, had violated Pa.R.Crim.P. 704’s speedy sentence
rule and that discharge was appropriate.
Appellant identifies 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, 4 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 the case be corrected?
Appellant’s brief at 5.1
In denying Appellant’s motion for clarification, the trial court simply
rejected Appellant’s factual premise that the sentence imposed was to run
concurrently and found that the issue had been previously litigated.
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1
Appellant styles his brief as “Pro Se Indigent Appellant Habeas Corpus
Based Brief.” The reference to habeas corpus may stem from the fact that
Appellant notes in his brief that he filed a petition for writ of habeas corpus
on July 10, 2014, which he characterizes as “supplementing his ‘Motion for
Clarification of Intended Sentences.’” Appellant’s brief at 7. The record
reveals, however, that Appellant filed separate notices of appeal from the
January 14, 2014 order denying his motion for clarification and the
subsequent order of August 19, 2014, denying his petition for writ of habeas
corpus. The appeals have been docketed at 359 EDA 2014 and 2725 EDA
2014, respectively. Appellant’s brief improperly conflates the two appeals.
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Appellant’s Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal ignores the prior factual determination that his sentence was imposed
consecutively. Although his alleged error is framed as a challenge to the
legality of his consecutive sentence, it is nothing more than a rehash of his
first PCRA petition arguing that his plea was involuntary.2 We agree with the
trial court that Appellant’s claim herein was previously litigated, rejected,
and affords no basis for relief. 42 Pa.C.S. § 9544(a) (for purposes of the
PCRA, an issue is previously litigated if it has been raised and decided in a
prior PCRA proceeding); 42 Pa.C.S. § 9543(a)(3) (PCRA petitioner ineligible
for relief if his claim has been previously litigated).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2015
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2
If Appellant’s motion for clarification had encompassed the same argument
he articulated in his Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, the trial court would likely have treated it as a
PCRA petition and properly dismissed it as untimely.
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