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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERIC JAMES LOPEZ
Appellant No. 1224 WDA 2015
Appeal from the PCRA Order July 7, 2015
In the Court of Common Pleas of Potter County
Criminal Division at No(s): CP-53-CR-0000011-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED MARCH 21, 2016
Appellant, Eric James Lopez, appeals from the July 7, 2015 order
denying his first petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court set forth the procedural history of this case in its
Pennsylvania Rule of Criminal Procedure 907 notice of intention to dismiss
the PCRA petition as follows.
On March 6, 2014[,] [Appellant] pled guilty to
one count of simple assault and one count of
recklessly endangering another person [(REAP)][1]
and was subsequently sentenced to an aggregate
sentence of 38 to 76 months with credit for 461 days
served. Upon the [trial] [c]ourt learning that the
sentence exceeded the permissible maximum the
March 6, 2014 plea was revoked and the Sentencing
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1
18 Pa.C.S.A. §§ 2701(a) and 2705, respectively.
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Order rescinded. On March 11, 2014, [Appellant]
again pled guilty to one count of simple assault and
one count of [REAP] and was subsequently
sentenced to an aggregate sentence of 24 to 48
months with no credit for time served. Several times
during the March 11, 2014 plea preceding [sic] the
[trial] [c]ourt made certain that [Appellant]
understood that he would receive no credit for time
served. Each time the [trial] [c]ourt made such an
inquiry [Appellant] indicated he understood.
Subsequently, [Appellant] filed a Notice of
Appeal on April 7, 2014, raising the issue of whether
[the trial] [c]ourt abused its discretion by not giving
[Appellant] credit for time served. On December 22,
2014 the Superior Court issued a decision affirming
[Appellant’s] sentence without credit for time served.
[Commonwealth v. Lopez, 116 A.3d 696 (Pa.
Super. 2014) (unpublished memorandum).
Appellant did not file a petition for allowance of
appeal with our Supreme Court.] On December 23,
2014 [Appellant] filed a timely first PCRA Petition
raising the issues of his failure to receive credit for
time served and that he did not agree with the
amount of restitution.
PCRA Court Rule 907 Notice of Intention to Dismiss, 6/16/15, at 1-2.
On February 25, 2015, the PCRA court appointed counsel. On June
16, 2015, the PCRA court issued the Rule 907 notice of its intention to
dismiss. Appellant did not respond, and on July 7, 2015, the PCRA court
dismissed the petition without a hearing. Thereafter, on July 23, 2015,
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Appellant filed a motion for reconsideration, which the trial court denied on
July 30, 2015. Appellant filed a timely notice of appeal on August 4, 2015.2
On appeal, Appellant presents the following issue for our review.
Should the [C]ourt reverse and remand the Potter
County Trial Court of Common Pleas and find the
trial court erred as a matter of law in:
a. Failing to permit a hearing on [Appellant’s]
first PCRA petition[]?
Appellant’s Brief at 7.
Appellant’s argument is limited to his contention that the PCRA court
erred in dismissing his first, timely PCRA petition without a hearing. Id. at
8. Specifically, Appellant argues that the PCRA court denied his “due
process rights to be heard … since appointed counsel was never permitted to
present the properly preserved issues to the tribunal[.]” Id. at 12.
We begin by noting our well-settled standard of
review. In reviewing the denial of PCRA relief, we
examine whether the PCRA court’s determination is
supported by the record and free of legal error. The
scope of review is limited to the findings of the PCRA
court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial
level. It is binding upon an appellate court so long
as they are supported by the record. However, this
Court reviews the PCRA court’s legal conclusions de
novo.
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2
The PCRA court did not direct Appellant to file a Pennsylvania Rule of
Appellate Procedure 1925(b) concise statement. Nonetheless, Appellant
filed a Rule 1925(b) statement on September 3, 2015. That same day, the
PCRA court issued an opinion noting that the June 16, 2015 Rule 907 notice
contained its reasons for dismissing Appellant’s PCRA petition.
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We also note that a PCRA petitioner is not
automatically entitled to an evidentiary hearing. We
review the PCRA court’s decision dismissing a
petition without a hearing for an abuse of discretion.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within
the PCRA court’s discretion to decline to hold a
hearing if the petitioner’s claim is patently
frivolous and has no support either in the
record or other evidence. It is the
responsibility of the reviewing court on appeal
to examine each issue raised in the PCRA
petition in light of the record certified before it
in order to determine if the PCRA court erred in
its determination that there were no genuine
issues of material fact in controversy and in
denying relief without conducting an
evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
and internal quotation marks omitted). Further, in order to be eligible for
PCRA relief, a petitioner must plead and prove by a preponderance of the
evidence that his conviction or sentence arose from one or more of the
errors listed in section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2).
These errors include the legality of the sentence. Id. § 9543(a)(2)(vii). The
issues raised in a PCRA petition must be neither previously litigated nor
waived. Id. § 9543(a)(3).
Here, Appellant’s PCRA petition contained two grounds for relief.
Appellant’s PCRA Petition, 12/23/14, at 2-3. Specifically, Appellant asserted
that the trial court failed to award credit for time served and that the trial
court imposed an incorrect amount of restitution. Id. at 3.
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Turning to Appellant’s first claim regarding the trial court’s alleged
failure to award credit for time served, we initially note that such a claim is a
challenge to the legality of Appellant’s sentence and is cognizable under the
PCRA. Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014),
appeal denied, 104 A.3d 524 (Pa. 2014). Appellant previously litigated the
issue of time served on direct appeal. See Lopez, supra at 6 (concluding
that Appellant understood that he was not receiving credit for time served as
part of his plea and that his sentence was lawful). Therefore, Appellant is
not eligible for PCRA relief on the issue of credit for time served because it
was previously litigated. See 42 Pa.C.S.A. § 9543(a)(3). Accordingly, we
conclude the PCRA court did not err or abuse its discretion in dismissing this
issue without conducting an evidentiary hearing. See Miller, supra.
Appellant’s second basis for relief in his PCRA petition was the bald
assertion that “[he] still dident [sic] agree with the restitution[.]”
Appellant’s Motion for Post Conviction Collateral Relief, 12/23/14, at 3. A
claim that the amount of restitution is excessive involves a discretionary
aspect of sentencing. See In re M.W., 725 A.2d 729, 731 n.4 (Pa. 1999)
(explaining that a challenge to the trial court’s authority to impose
restitution implicates the legality of the sentence, but an argument that the
restitution order is excessive is a discretionary aspect). Bald challenges to
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the discretionary aspects of a sentence are not cognizable under the PCRA.3
Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013).
Therefore, Appellant is not eligible for PCRA relief on his restitution issue,
and the PCRA court did not err or abuse its discretion in dismissing his
petition without an evidentiary hearing.4 See Miller, supra.
Based on the foregoing, we conclude that the PCRA court did not err or
abuse its discretion in dismissing Appellant’s PCRA petition without an
evidentiary hearing as the record reflects Appellant has not raised a genuine
issue of material fact. See id. Accordingly, the PCRA court’s July 7, 2015
order is affirmed.
Order affirmed.
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3
Appellant has not framed his discretionary aspects claim as an
ineffectiveness of counsel argument, so it is not cognizable under the PCRA.
See Taylor, supra at 467 n.4 (recognizing that a discretionary aspects
claim presented as the underlying reason for counsel’s ineffectiveness is
cognizable under the PCRA).
4
We note that our decision does not foreclose Appellant’s ability to file a
motion to modify the amount of restitution under Section 1106 of the Crimes
Code, 18 Pa.C.S.A. §§ 101-9402, because Section 1106 “permit[s] a
defendant to seek a modification or amendment of the restitution order at
any time directly from the trial court.” Commonwealth v. Stradley, 50
A.3d 769, 772 (Pa. Super. 2012); see also Commonwealth v. Gentry,
101 A.3d 813, 816 (Pa. Super. 2014) (stating Section 1106 “creates an
independent cause of action for a defendant to seek modification of an
existing restitution order”), citing Stradley, supra and 18 Pa.C.S.A.
§ 1106(c)(3).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2016
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