J-S25027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE B. HERRING :
:
Appellant : No. 2041 EDA 2016
Appeal from the Judgment of Sentence July 23, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012419-2009,
CP-51-CR-0012797-2009, CP-51-CR-0015763-2009
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOT, P.J.E.
MEMORANDUM BY RANSOM, J.: FILED JULY 19, 2017
Appellant, Andre B. Herring, appeals from the judgment of sentence of
ten to twenty years of imprisonment followed by ten years of probation,
imposed on July 23, 2012, following his open plea to two counts of
burglary,1 one count of attempted burglary, 2
and one count of conspiracy.3
We affirm.
The relevant facts and procedural history are as follows:
Defendant, Andre Herring, has appealed nunc pro tunc from the
July 23, 2012, order of this [c]ourt imposing judgment of
sentence. On July 23, 2012, defendant appeared before this
[c]ourt and entered non-negotiated guilty pleas to various
charges pursuant, inter alia, to the above bill and term numbers.
____________________________________________
1
18 Pa.C.S. § 3502
2
18 Pa.C.S. § 901
3
18 Pa.C.S. § 903
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As of CP-51-CR-0012419-2009, defendant pleaded guilty to the
charge of burglary and received a sentence of ten to twenty-
years’ incarceration. As of CP-51-CR-0012797-2009, defendant
pleaded guilty to burglary and received a sentence of ten to
twenty years’ incarceration, which sentence was ordered to be
served concurrently with the sentence imposed as of CP-51-CR-
0012419-2009. Finally, as of CP-51-CR-00157763-2009,
defendant pleaded guilty to the charge of attempted burglary
and received a sentence of two to four years’ incarceration,
which sentence was ordered to be served concurrently with the
sentences imposed on the other two charges. When imposing
[the] sentence, this [c]ourt ordered that defendant should
receive credit for time served. Defendant filed neither a post-
sentence motion nor a notice of appeal following the imposition
of sentence.
On March 11, 2013, defendant filed a pro se petition under the
Post-Conviction Relief Act, 42 Pa.C.S. § 9741 et seq. Counsel
was appointed to represent defendant and on March 27, 2015,
counsel filed an amended petition requesting that defendant be
granted the right to file a direct appeal from the judgment of
sentence nunc pro tunc. On May 26, 2016, this [c]ourt issued
an order granting defendant the right to file a notice of appeal
nunc pro tunc from the judgments of sentence and denying him
the right to file post-sentence motions. Defendant filed notice of
appeal on June 22, 2016, followed by a court-ordered 1925(b)
statement.
Trial Court Opinion, 7/21/16, at 1-2.4
The trial court issued a responsive opinion. On appeal, Appellant
raises the following issues for review:
I. Should [A]ppellant’s sentence be vacated and the case be
remanded to the Court of Common Pleas with direction
that Appellant be afforded an opportunity to file a nunc pro
tunc petition to withdraw his guilty plea?
____________________________________________
4
The trial court opinion omits any reference to the conspiracy charge,
docketed at CP-51-CR-0012419-2009.
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II. Should [A]ppellant’s case be remanded to the Court of
Common Pleas with direction that Appellant be afforded an
opportunity to file a nunc pro tunc post-sentence motion
challenging the legality of his sentence?
Appellant’s Brief at 3.
Appellant’s first claim challenges the validity of his guilty plea.
Appellant does not dispute that he failed to file timely a post-sentence
motion to withdraw his plea. However, Appellant asserts that the lower
court failed to advise him that a motion was required in order to preserve his
challenge. According to Appellant, this failure renders his plea unknowing
and involuntary. Appellant seeks remand so that he may be permitted to file
a petition to withdraw his plea nunc pro tunc.
Written post-sentence motions shall be filed no later than ten days
after the imposition of sentence. Commonwealth v. Green, 862 A.2d 613
(Pa. Super. 2004); Pa.R.Crim.P. 720(A)(1). Failure to file a post-sentence
motion will result in waiver. See, e.g., Commonwealth v. Kinney, ---
A.3d ---, *5 (Pa. Super. 2017) (concluding that issues arising from a plea
were waived because the defendant failed to preserve them in a post-
sentence motion). A PCRA court may reinstate a petitioner’s right to file
post-sentence motions nunc pro tunc, provided the petitioner may plead and
prove “that he was deprived of the right to file and litigate said motions as a
result of the ineffective assistance of counsel.” Commonwealth v. Liston,
977 A.2d 1089, 1094 n.9 (Pa. 2009).
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In his PCRA petition, Appellant sought only to reinstate his direct
appeal rights nunc pro tunc; he made no request to reinstate his right to file
post-trial motions and thus challenge the validity of his guilty plea.
Appellant’s claim is therefore waived. See Liston, 977 A.2d at 1094;
Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004) (“Claims not
raised in the PCRA court are waived and cannot be raised for the first time
on appeal in this Court. Pa.R.A.P. 302(a).”).
Appellant’s next claim is that this case should be remanded to afford
Appellant the opportunity to file a nunc pro tunc motion challenging the
legality of his sentence. Appellant’s Brief at 11. According to Appellant, the
sentencing court failed to properly calculate his time credit. Id.
Challenges to the legality of a sentence cannot be waived.
Commonwealth v. Dickson, 918 A.2d 95, 98 (Pa. 2007) (“[I]f the
sentence clearly implicates the legality of sentence, whether it was properly
preserved below is of no moment, as a challenge to the legality of sentence
cannot be waived.”). A challenge to the failure to award credit for time
served prior to sentencing does involve the legality of the sentence and as
such cannot be waived. See Commonwealth v. Beck, 848 A.2d 987, 989
(Pa. Super. 2004) (“An appellant’s challenge to the trial court’s failure to
award credit for time spent in custody prior to sentencing involves the
legality of sentence.”).
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However, here it appears that Appellant’s contention is with the
computation of his time credit. This Court is not the appropriate venue for
challenging the computation of time.
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.
Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014), citing,
Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. Super. 1989).
The record reflects that Appellant was given credit for time served
from 7/28/09 to 12/9/10 and from 7/1/11 to 7/23/12. Open Guilty Plea,
7/23/12 at 1; Notes of Testimony, Sentencing 7/23/12 at 21-22. It appears
that the trial court gave Appellant all of the time credit he requested. Id.
Thus, Appellant’s characterization that he challenges the legality of his
sentence is inaccurate, and this Court is not the proper venue to address
Appellant’s miscalculation claims.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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