J-S11024-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

JOSE M. CLASSEN 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 163 EDA 2023 

Appeal from the PCRA Order Entered December 8, 2022 

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

No(s): CP-51-CR-0000361-2015 

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

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 16, 2024

Jose M. Classen appeals from the order dismissing his Post Conviction 

Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Classen’s 

counsel has filed a Turner/Finley1 brief and a petition to withdraw as 

counsel. We affirm the order dismissing Classen’s PCRA petition and grant 

counsel’s petition to withdraw. 

 This Court previously set forth the facts as follows: 

On February 26, 2016, Classen entered a non-negotiated 

guilty plea to Possession of a Firearm Prohibited. On June 

16, 2016, the court sentenced Classen to 111⁄2 to 23 months’ 

incarceration, followed by three (3) years of probation. 

Classen was paroled to house arrest, which he completed in 

February 2017. 

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*

 Retired Senior Judge assigned to the Superior Court. 

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 
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While on probation, Classen was arrested and charged 

with offenses related to the straw purchase of a firearm. A 

jury convicted him of conspiracy for making false 

statements on federal firearm forms to purchase firearms. 

The court sentenced Classen to three and a half to seven 

years of incarceration. 

On October 5, 2020, the court held a violation of 

probation (“VOP”) hearing. The Commonwealth and 

Classen’s counsel agreed that Classen’s conviction 

constituted a direct violation of his probation. The court 

imposed a new sentence of four to eight years in prison, 

with credit for time served. 

Commonwealth v. Classen, No. 2153 EDA 2020, 2022 WL 152474, at *1 

(Pa.Super. filed Jan. 18, 2022) (unpublished mem.) (footnotes and citations 

omitted). 

 Classen filed a direct appeal of his judgment of sentence. This Court 

affirmed in January 2022. See id. Classen filed the instant, counseled PCRA 

petition in May 2022. Classen claimed that despite the court ordering that he 

was to receive credit for time served, the Court Commitment form reflected 

zero days of credit. See PCRA Petition, filed May 16, 2022, at ¶ 5. He sought 

an order awarding him time credit from April 12, 2018 to October 5, 2020, 

arguing that he had “been needlessly incarcerated beyond his court 

sentence[.]” Id. at ¶ 6. After issuing its notice of intention to dismiss the 

petition pursuant to Pennsylvania Rule of Criminal Procedure 907, the court 

dismissed Classen’s petition. 

 Classen filed a timely pro se notice of appeal. The court appointed 

counsel to represent Classen on appeal. The court ordered Classen to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 
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1925(b). In April 2023, in lieu of filing a Rule 1925(b) statement, counsel filed 

a statement of intent to file a Turner/Finley brief pursuant to Pa.R.A.P. 

1925(c)(4). The court issued a Rule 1925(a) opinion concluding that Classen’s 

issue is meritless. 

 On October 1, 2023, counsel filed a Turner/Finley brief and a petition 

to withdraw with this Court. Classen did not file a response to counsel’s 

petition to withdraw. 

Counsel identifies the following issue in the Turner/Finley brief: “[Did] 

the PCRA court err[] in finding that [Classen] was not entitled to time-credit 

considering the failure to award such credit would render the sentence beyond 

the statutory maximum[?]” Turner/Finley Brief at 2. 

Before addressing the merits, we first must determine whether counsel 

has satisfied the procedural requirements of a motion to withdraw. A 

Turner/Finley brief must detail the nature and extent of counsel’s review, 

list each issue the petitioner wishes to have reviewed, and provide an 

explanation of why the petitioner’s issues are meritless. Commonwealth v. 

Widgins, 29 A.3d 816, 818 (Pa.Super. 2011). Counsel also must 

contemporaneously send to the petitioner a copy of the “no-merit” letter/brief, 

a copy of counsel’s motion to withdraw, and a statement advising the 

petitioner of the right to proceed pro se or with new counsel. Id. If counsel 

satisfies the technical requirements, this Court must conduct its own review 

of the merits of the case. Commonwealth v. Wrecks, 931 A.2d 717, 721 
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(Pa.Super. 2007). If we agree with counsel that the claims are without merit, 

we will allow counsel to withdraw and deny relief. Id.

Here, counsel has substantially complied with the requirements of 

Turner/Finley. Counsel detailed his review of the record and concluded that 

Classen’s claim is meritless. He also provided the Turner/Finley brief to 

Classen and advised him of his right to retain new counsel or proceed pro se. 

Counsel additionally provided Classen with a copy of the petition to withdraw. 

Thus, we proceed to the issue counsel has identified.2

On appeal from the denial or grant of relief under the PCRA, our review 

is limited to determining “whether the PCRA court’s ruling is supported by the 

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436, 

442 (Pa.Super. 2018) (citation omitted). 

We conclude the PCRA court properly dismissed Classen’s PCRA petition 

because his claim is not cognizable under the PCRA. Although Classen’s claim 

is framed as being needlessly incarcerated beyond his sentence, it is more 

appropriately a claim that the Department of Corrections’ (“DOC”) failed to 

follow the court’s sentence that ordered he receive time credit. See PCRA 

Petition, at ¶ 5 (stating, “Despite the Probation/Parole Order stipulating 

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2

 Counsel’s initial Turner/Finley letter to Classen was deficient because it 

improperly framed Classen’s ability to respond to counsel’s petition to 

withdraw as contingent on the granting of counsel’s petition to withdraw. On 

December 19, 2023, this Court entered an order directing counsel to send a 

new letter advising Classen of the immediate right to proceed pro se or with 

privately retained counsel. Counsel complied with this order on February 28, 

2024. 
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[Classen] was to receive time credit, the Court Commitment reflects zero (0) 

days’ time credit”). 

This Court has explained the different claims an appellant may raise 

regarding credit for time served and the procedures for raising such claims: 

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. Wyatt, 115 A.3d 876, 879 (Pa.Super. 2015) (cleaned 

up). 

Here, the sentencing court expressly granted Classen credit for time 

served and stated, “Credit to be calculated by the Phila. Prison System.” See

Revocation of Probation/Parole Order, 10/5/20; see also N.T. Sentencing, 

10/5/20, at 26 (sentencing court stating, “I am going to give you credit for 

the two years you served”). Classen is claiming that the DOC failed to follow 

the court’s sentence in awarding him time-served credit. Thus, any claim to 

the legality of the sentence is inaccurate. The appropriate way for Classen to 

challenge the purported failure to credit him for time served is an original 

action filed in Commonwealth Court. See Wyatt, 115 A.3d at 880. Since 
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Classen’s claim is not cognizable under the PCRA, we affirm the court’s 

dismissal of the petition. 

Petition to withdraw as counsel granted. Order affirmed. 

Date: 7/16/2024