J. S48017/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COUR T OF : PENNSYLVANIA : v. : : SHAWN ALAN BRACKEN : Appellant : : No. 1373 WDA 2015

Appeal from the Order August 18, 2015 In the Court of Common Pleas of Westmoreland County Criminal Division No(s): CP-65-CR-0000730-2012

BEFORE: BOWES, DUBOW, and MUSMANNO, JJ. JUDGMENT ORDER BY DUBOW, J.: FILED SEPTEMBER 15, 2016 Appellant, Shawn Alan Bracken, appeals from the Aug ust 18, 2015 Order denying his second Petition for Credit for Ho use Arrest Nunc Pro Tunc as untimely. Upon review, we reverse and remand th e case with instructions for the trial court to consider the pe tition under the Post Conviction Relief Act (PCRA). A detailed factual and procedural history is unnece ssary to our disposition. Therefore, we summarize the relevant procedural history as follows: On August 8, 2014, Appellant pled guilty t o charges arising from Appellant’s sexual abuse of his minor daughter. Ap pellant waived his right to have his Sexually Violent Predator hearing condu cted prior to sentencing, and Appellant was sentenced that same day. Pursuan t to his plea agreement with the Commonwealth, the trial court se ntenced Appellant toJ.S48017/16

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three to six years of incarceration and an addition al five years of probation. Appellant was not given credit for time served on h ouse arrest, and began serving his term of imprisonment on August 11, 2014

. On June 25, 2015, Appellant filed a Petition for Cr edit for House Arrest Nunc Pro Tunc, which the trial court denied on Augu st 18, 2015. The trial court denied the petition on the grounds that the p etition was untimely and that there were no “specific allegations of a break down in the court operation or allegations of fraud which would have permitted [Appellant] to proceed Nunc Pro Tunc.” Trial Court Opinion, filed 2/25/16, at 3. Appellant timely appealed, raising the following is sue: Whether the Court of Common Pleas abused its discre tion in denying Appellant’s motion for credit for house arr est, nunc pro tunc, despite the severe restrictions placed on his movement tantamount to custody. Appellant’s Brief at 2. Appellant’s Petition for Credit for House Arrest Nu nc Pro Tunc, filed more than ten months after he was sentenced by the trial court, was clearly untimely. See Pa.R.Crim.P. 720. However, courts should construe an untimely post-sentence motion as a petition for rel ief under the PCRA if the motion raises a claim that is cognizable under the PCRA. Commonwealth

v. Deaner , 779 A.2d 578, 580 (Pa. Super. 2001) (“[A]ny colla teral petition raising issues with respect to remedies offered und er the PCRA will be considered a PCRA petition.”).J.S48017/16

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A claim that the trial court failed to award credit for time served prior to sentencing is a proper challenge to the legality of the sentence.

Commonwealth v. Johnson , 967 A.2d 1001, 1003 (Pa. Super. 2009). As such, it is cognizable under the PCRA. Commonwealth v. Diamond , 546 A.2d 628, 631 n.3 (Pa. Super. 1988). The trial cou rt therefore erred in denying the petition as untimely without considerin g the merits of Appellant’s claim. See Commonwealth v. Davis , 852 A.2d 392, 399-400 (Pa. Super. 2004) (concluding that trial court erre d in denying petition for time credit as untimely post-sentence motion, where it should have been considered in the nature of a timely-filed PCRA pet ition). In light of the foregoing, we reverse the trial cou rt’s denial of Appellant’s petition as untimely, and remand for th e trial court to treat and review the motion as a PCRA petition.

Order reversed. Case remanded. Jurisdiction relin quished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/15/2016