J-S55033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES EDWARD MARSH 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 458 WDA 2019

Appeal from the PCRA Order Entered February 28, 2019

In the Court of Common Pleas of Somerset County Criminal Division at 

No(s): CP-56-CR-0000098-2017

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED NOVEMBER 14, 2019

Appellant, James Edward Marsh, appeals from the order entered

February 28, 2019, that denied his first petition filed under the Post Conviction 

Relief Act (“PCRA”).

1

 We remand with instructions.

At Docket Number CP-56-CR-0098-2017 (“98-17”), on June 22, 2017, 

Appellant pleaded guilty to burglary and receiving stolen property.2 On 

September 7, 2017, Appellant was sentenced for these convictions, as well as 

for the convictions at four other docket numbers: CP-56-CR-1003-2016 

(“1003-16”), CP-56-CR-0099-2017 (“99-17”), CP-56-CR-0100-2017 (“100-

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.

2 18 Pa.C.S. §§ 3502(a)(4) and 3925(a), respectively.
J-S55033-19

- 2 -

17”), and CP-56-CR-0206-2017 (“206-17”). His sentences for these actions 

were as follows:

For 1003-16, Appellant was sentenced to six months of probation, to 

be served concurrently to all his other sentences.

For 98-17, the current appeal, Appellant was sentenced to an aggregate 

judgment of sentence of 12 to 24 months of confinement. Appellant 

was “entitled to credit for time served in this case, totalling 224 days, 

extending from January 27th, 2017, to September 7th, 2017.” 

Sentence Order, 9/7/2017, at 2; see also N.T., 9/7/2017, at 10.

For 99-17, Appellant was sentenced to 24 to 48 months of confinement 

to be served consecutively to the sentences at Docket Numbers 98-17, 

100-17, and 206-17. Appellant received credit for time served of 220 

days.

For 100-17, Appellant was sentenced to 24 to 48 months of 

confinement to be served consecutively to the sentences at Docket 

Numbers 98-17, 99-17, and 206-17. Appellant received credit for time 

served of 232 days.

For 206-17, Appellant was sentenced to 6 to 12 months of confinement 

to be served consecutively to the sentences at Docket Numbers 98-17, 

99-17, and 100-17. Appellant was “entitled to credit for time served in 

this case totalling 183 days, extending from March 8th, 2017, to 

September 7th, 2017.” Sentence Order, 9/7/2017, at 4; see also N.T., 

9/7/2017, at 12.

During the sentencing hearing, the trial court stated: 

The sentences in cases Nos. 98[-]17, 99[-]17, 100[-]17, 

and 206[-]17, shall be served consecutively; thereby 

creating an aggregate sentence of not less than 66 months nor 

more than 132 months’ incarceration in a State Correctional 

Institution. . . . I’ll go back to what I dictated a moment ago, which 

is to reiterate that the sentence in case Nos. 98[-17], 99[-17], 

100[-17], and 206[-]17, shall be served consecutively, creating 

an aggregate sentence of not less than 66 months, nor more than 

132 months’ incarceration, in a State Correctional Institution.
J-S55033-19

- 3 -

Id. at 12-13 (some emphasis omitted). The written sentencing order states: 

“The sentencing in Case Nos. 98[-17], 99[-17], 100[-17], and 206[-

]17, shall be served consecutively, creating an aggregate sentence of not

less than 66 months, nor more than 132 months’ incarceration, in a state 

correctional institution.” Sentence Order, 9/7/2017 (emphasis added). 

Appellant did not file a direct appeal at 98-17.

On August 27, 2018, Appellant filed his first, pro se, timely PCRA 

petition. The PCRA court appointed counsel to represent Appellant, who filed 

an amended PCRA petition on October 23, 2018. On February 28, 2019, the 

PCRA court held an evidentiary hearing and denied Appellant’s petition. On 

March 5, 2019, Appellant filed this timely appeal.3

Appellant presents the following issue for our review:

Whether the [PCRA] court erred in dismissing Appellant’s 

amended post-conviction collateral relief act petition by finding 

that Appellant did not establish the ineffective assistance of trial 

counsel.

Appellant’s Brief at 5.

“We review the denial of PCRA relief to decide whether the PCRA court’s 

factual determinations are supported by the record and are free of legal error.” 

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting 

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

____________________________________________

3 Appellant filed his statement of errors complained of on appeal on March 29, 

2019. The trial court entered its opinion on July 3, 2019.
J-S55033-19

- 4 -

Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543, 

which provides in pertinent part:

To be eligible for relief under this subchapter, the petitioner must 

plead and prove by a preponderance of the evidence all of the 

following:

(1) That the petitioner has been convicted of a crime 

under the laws of this Commonwealth and is at the 

time relief is granted:

 (i) currently serving a sentence of 

imprisonment, probation or parole for the crime;

42 Pa.C.S. § 9543(a) (emphasis added); see also Commonwealth v. 

Ahlborn, 699 A.2d 718, 720 (Pa. 1997).

We cannot determine from the existing record whether Appellant is 

currently serving a sentence at the instant docket number, 98-17. Although 

the written sentencing order states that Appellant’s sentences for 98-17, 99-

17, 100-17, and 206-17 “shall be served consecutively,” Sentence Order, 

9/7/2017, at 4, we have no indication of the order in which the sentences for 

each docket number were arranged, how credit for time served was 

distributed, or how these sentences may have been divided between 

confinement and possible future parole. The notes of testimony from the 

sentencing hearing do not provide any clarification on these points. N.T., 

9/7/2017, at 12-13.

For example, the sentence for 98-17 could have been served first, with 

99-17, 100-17, and 206-17 following in sequence. Appellant was sentenced 

on September 7, 2017, but, with 224 days credited for time served, his 
J-S55033-19

- 5 -

sentence for 98-17 began on January 27, 2017. Sentence Order, 9/7/2017, 

at 2; N.T., 9/7/2017, at 10. His maximum sentence at 98-17 was 24 months. 

Accordingly, if his sentence for 98-17 was served first, his sentence could have 

been completed by January 27, 2019, at the latest. If so, Appellant is not 

currently imprisoned, on probation, or on parole at 98-17, and, consequently, 

is not eligible for relief under the PCRA. 42 Pa.C.S. § 9543(a)(1)(i); Ahlborn, 

699 A.2d at 720.

However, in another example, his sentences could have been served in 

order beginning with 206-17, followed by 100-17, then 99-17, and ending 

with 98-17. Appellant was sentenced on September 7, 2017, but, with 183 

days credited for time served, his sentence for 206-17 began on March 8, 

2017. Sentence Order, 9/7/2017, at 4; N.T., 9/7/2017, at 12. His maximum 

sentence at 206-17 was 12 months. Accordingly, if his sentence for 206-17 

was served first, his sentence could have been completed by March 8, 2018. 

If his sentence for 100-17 then commenced, he may not finish serving the 

maximum sentence for 100-17 until 2021 and, ergo, may not have yet begun

his sentences for 99-17 and 98-17. If so, then Appellant is eligible for relief

pursuant to the PCRA, and we may address the merits of his appeal. See 42 

Pa.C.S. § 9543(a)(1)(i).

Yet a third possibility is that Appellant has only served the 12-month 

minimum of his sentence at 98-17, and the remaining 12 months of his 

sentence have been delayed until the completion of the minimum terms from 
J-S55033-19

- 6 -

his other docket number, with that remaining 12 months from 98-17 possibly 

to be served as parole and not confinement. In this instance, Appellant would 

be eligible for relief pursuant to the PCRA, and we could address the merits of 

his appeal. See 42 Pa.C.S. § 9543(a)(1)(i).

In conclusion, we have no means of discerning whether Appellant has 

completed his sentence at 98-17, and, whether he is thereby even eligible for 

PCRA relief pursuant to 42 Pa.C.S. § 9543(a)(1). We therefore remand the 

current matter to the PCRA court for it to make this determination. The PCRA 

court may hold any additional hearings that it deems necessary in order to 

determine Appellant’s eligibility pursuant to 42 Pa.C.S. § 9543(a)(1). The 

parties may call witnesses and present evidence, including presenting any 

records or witnesses from the Pennsylvania Department of Corrections. The 

PCRA court must make this determination of Appellant’s eligibility for relief 

pursuant to 42 Pa.C.S. § 9543(a)(1) within thirty days of the date that the 

certified record for 98-17 is returned to the Somerset County Clerk of Courts. 

The PCRA court’s determination must be included with the certified record 

when it is returned to this Court following remand.

Case remanded with instructions. Panel jurisdiction retained.