J. S48017/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT 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 August 18, 2015 

Order denying his second Petition for Credit for House Arrest Nunc Pro Tunc 

as untimely. Upon review, we reverse and remand the case with 

instructions for the trial court to consider the petition under the Post 

Conviction Relief Act (PCRA). 

A detailed factual and procedural history is unnecessary to our 

disposition. Therefore, we summarize the relevant procedural history as 

follows: On August 8, 2014, Appellant pled guilty to charges arising from 

Appellant’s sexual abuse of his minor daughter. Appellant waived his right 

to have his Sexually Violent Predator hearing conducted prior to sentencing, 

and Appellant was sentenced that same day. Pursuant to his plea 

agreement with the Commonwealth, the trial court sentenced Appellant to 
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three to six years of incarceration and an additional five years of probation. 

Appellant was not given credit for time served on house arrest, and began 

serving his term of imprisonment on August 11, 2014. 

On June 25, 2015, Appellant filed a Petition for Credit for House Arrest 

Nunc Pro Tunc, which the trial court denied on August 18, 2015. The trial 

court denied the petition on the grounds that the petition 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 issue: 

Whether the Court of Common Pleas abused its discretion in 

denying Appellant’s motion for credit for house arrest, 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 Nunc 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 relief 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 collateral petition 

raising issues with respect to remedies offered under the PCRA will be 

considered a PCRA petition.”). 
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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 court therefore erred in 

denying the petition as untimely without considering the merits of 

Appellant’s claim. See Commonwealth v. Davis, 852 A.2d 392, 399-400 

(Pa. Super. 2004) (concluding that trial court erred 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 petition). 

In light of the foregoing, we reverse the trial court’s denial of 

Appellant’s petition as untimely, and remand for the trial court to treat and 

review the motion as a PCRA petition. 

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/15/2016