### J-S74024-16
NON

### -PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

1 IN THE SUPERIORCOURT OF PENNSYLVANIA

v. TARIK SAUNDERS Appellee



### Appellant No. 34 EDA2016 Appeal

### from theJudgmentofSentenceJanuary 11, 2013 In 

### the CourtofCommon Pleas 

### of Philadelphia 

### County Criminal Division at No(s): CP-51-CR-

### 0511531-2005 CP-51-CR-1000241-2003
BEFORE: OTT, J., RANSOM,J., and STEVENS, P.J.E.* MEMORANDUM BY OTT, J.: 

### FILED

### January 17,

### 2017 TarikSaunders appeals, nunc pro tunc, 

### fromthe

### judgment ofsentence imposed on 

### January 11, 

### 2013, in 

### the Philadelphia 

### County Court ofCommon Pleas, 

### after he was 

### granted 

### reinstatement of his 

### direct appeal 

### rights under the Post

### -Conviction Relief Act ("PCRA").1 Following 

### the revocation of 

### Saunders' probation in

### two cases, 

### the

### trial court imposed an 

### aggregate

### term of 54 to 120 

### months' incarceration, with twoyearsofconsecutive probation. On appeal, Saunders challenges 

### the 

### discretionary aspects 

### of his 

### violation of 

### probation sentence, as well as 

### the 

### court'sfailure to give him 

### credit

### for time served. He also contends 

### the PCRA 

### court abused its 

### discretion in denying

* FormerJusticespecially assigned to

### the SuperiorCourt.

1 42 Pa.C.S. §§ 9541

### -9546.

### J-S74024-16

him 

### the 

### right to 

### file post-sentence motions nunc pro tunc. For 

### the reasons below, we 

### vacate the 

### order granting PCRA 

### relief, and remand 

### for an 

### evidentiary hearing. The 

### relevant facts and 

### procedural 

### history were 

### aptly summarized by 

### the PCRA

### court as

### follows: [Saunders] was convicted under two separate bills 

### of 

### information 

### that have been consolidated 

### for this appeal, a 2003 gun case (CP-51-CR-1000241

### -2003) and a 2005 drug case (CP51-CR-

### 0511531

### -2005). In the 

### first case, 

### [Saunders] was 

### arrested on April 1, 2003, and charged 

### with aggravated assault, 

### violations of the Uniform Firearms Act, possessing 

### the 

### instruments of a 

### crime, simple assault, 

### terroristic threats and recklessly endangering 

### another person 

### [("REAP

### ")]. On February 26, 2004, Saunders pled 

### guilty to 

### carrying a 

### firearm 

### without a license and [REAP2] before now 

### retired Judge Chris Wogan. 

### [Saunders] was sentenced to 

### [four years' probation] for the 

### violation of the Uniform Firearms Act, and two years 

### [concurrent] probation

### for [REAP]. Probation wanted cards 

### were issued March 31, 2005. 

### [Saunders] was 

### subsequently sentenced to 

### fouryears probation 

### for 

### that violation on May 5, 2009. A 

### month later, on June 12, 2009, a bench 

### warrant was once 

### more issued 

### for probation 

### violations; however[,] Saunders' probation was 

### continued by

### the 

### court on December 18, 2009. New 

### technical and 

### direct violations were again alleged and a hearing was held on 

### November 14, 2012. 

### [Saunders] was found to have 

### violated his 

### probation 

### for failing to 

### report as well as his new 

### convictions in Delaware 

### County 

### for resisting 

### arrest and 

### providing false 

### identification to law 

### enforcement. As a 

### result, a Pre

### -Sentence 

### Investigation was 

### ordered. On 

### January 11, 

### 2013, Saunders was sentenced to six to 

### twenty-three months in a 

### state correctional 

### system[, plus two

### years' probation], consecutive to hisdrug case sentence.

2 18 Pa.C.S. §§ 

### 6106 and 

### 2705, respectively.


## -2

### J-S74024-16 [Saunders'] second case is a drug case 

### with an 

### arrestdate of March 4, 

### 2005, wherein Saunders was charged 

### with possessing a 

### controlled substance with 

### intent to 

### deliver, along 

### with knowing and 

### intentional possession 

### of

### that drug. Saunders entered a no /o 

### contendere plea before now 

### retired Judge Wogan on July 19, 

### 2005, and was sentenced to nine to 

### twenty-four months incarcerationfollowed by

### fouryears probation. As noted above, Saunders was found in 

### violation on May 5, 

### 2009, and resentenced to 

### four years probation. Saunders was 

### further found in 

### technical and 

### directviolation on 

### November 14, 2012 

### for failing to 

### report to 

### probation as well as his new 

### convictions in Delaware County. 

### [Saunders] was 

### subsequently resentenced to 

### four to

### eightyears incarceration followed by one

### yearprobation. PCRA

### CourtOpinion, 

### 2/22/2016, at 2-3. On 

### January 25, 

### 2013, Saunders filed a 

### pro se post-sentence motion seeking 

### modification of his drug sentence. However, it does not appear the 

### motion was 

### ever considered by 

### the 

### trial court, and Saunders did not file a 

### direct appeal. On 

### November 5, 

### 2013, Saunders filed a 

### consolidated, 

### pro se PCRA 

### petition seeking 

### relief from both 

### the drug and gun 

### convictions. He 

### averred, 

### inter a/ia, 

### that trial counsel 

### "refused to put 

### [an] appeal, 

### reconsideration in 

### for 

### [him] because 

### [counsel] said its (sic) awaste of

### time." Motion 

### for Post 

### Conviction Collateral Relief, 

### 11/5/2013, at 3. Counsel was 

### appointed and filed a 

### Turner/Finley3 

### "no 

### merit" letter on 

### August 14, 2014. While it appears 

### the PCRA 

### court 

### initially denied relief,4 at some 

### point, new counsel was 

### appointed, and filed an amended 

### petition on February 25, 2015,

3 

### See 

### Commonwealth v. 

### Turner, 544 A.2d 927 (Pa. 

### 1988), and 

### Commonwealth v. 

### Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

### banc).

4

### See Order, 

### 12/23/2014; Order, 

### 2/3/2015.


## -3

### J-S74024-16

which 

### the PCRA 

### court accepted. New counsel raised one claim in 

### the amended 

### petition, namely,

### that prior counselwas 

### ineffectiveforfailing to

### file

a 

### direct appeal when requested to do so by Saunders. 

### See Amended Petition Under Post

### -Conviction Relief Act, 

### 2/25/2015, at 2; 

### Memorandum of Law, 

### 2/25/2015, at 2. In the 

### prayer

### for relief, however, counsel requested Saunders 

### "be allowed to 

### file post sentence 

### motions and an appeal 

### nuncpro 

### tunc[.]" 

### Id. In an 

### order entered December 18, 2015, the PCRA 

### court reinstated Saunders' direct appeal 

### rights nunc pro tunc, but specifically denied his 

### requestto 

### file a 

### post-sentence motion. Order, 

### 12/18/2015. This 

### timely nuncprotunc appeal followed.5 We will addressSaunders' last issue

### first, since his claim

### thatthe PCRA 

### court abused its 

### discretion in denying his 

### request to 

### file post-sentence motionsnuncpro tunc is 

### dispositive. In 

### Commonwealth v. 

### Liston, 977 A.2d 1089 (Pa. 

### 2009), the Pennsylvania 

### Supreme Court held 

### that a 

### defendant who is 

### granted the 

### right to file a 

### direct appeal 

### nunc pro tunc, is not

### automatically entitled to 

### file post-sentence motions nunc pro tunc. Nevertheless, the Court recognized 

### that reinstatement of a 

### defendant's 

### right to file post-sentence motions is 

### warranted insome cases:

5 On 

### January 4, 

### 2016, the PCRA 

### court ordered Saunders to 

### file a concise 

### statement of

### errors complained of on appeal 

### pursuant to Pa.R.A.P. 

### 1925(b). Saunders complied 

### with the court's 

### directive and filed a concise 

### statement on

### January 15, 2016. 

## -4

### J-S74024-16
Our holding should not be construed as 

### prohibiting a PCRA

### court from reinstating a 

### defendant's

### rightto

### file post-sentence motions nunc pro tunc. 

### If a 

### defendant successfully pleads and proves 

### that he was 

### deprived ofthe 

### right to

### file and 

### litigate said 

### motions as a 

### result of

### the ineffective assistance 

### of counsel, a PCRA

### court is 

### free to 

### grant such relief. Presumably, since 

### post-sentence motions are 

### optional, see Pa.R.Crim.P. 

### 720(B), rarely will counsel be deemed to have been 

### ineffective for failing to file 

### them except, 

### for example, when 

### the claim 

### involves the 

### discretionary aspects 

### of sentence or a challenge to a 

### verdict on 

### weight of the evidencegrounds, claims which 

### must be raised in 

### the

### trial courtto be preserved

### for purposes of

### appellate review. 

### Id. at 1095 n.9. In 

### interpreting 

### Liston, a panel of

### this Court explained 

### that

a PCRA 

### petitioner may not be 

### granted 

### reinstatement of his 

### post-sentence motion rights

### "if he has not requested such 

### reliefwiththe PCRA

### court, and if the 

### court did not hold an 

### evidentiary hearing on 

### that issue." 

### Commonwealth v. 

### Fransen, 986 A.2d 154, 155 (Pa. Super. 

### 2009). Indeed, we also recognized 

### that counsel's 

### failure to 

### file post-sentence motions is not 

### ineffectiveness 

### per se; instead, 

### "[a] petitioner alleging 

### that counsel was 

### ineffective 

### for failing to file a 

### post-sentence motion must 

### [] satisfy the 

### Piercethree

### -part test for ineffectiveness." 

### Commonwealth v. 

### Hill, A.3d 1 2016 PA Super226,

### *4 (Pa. Super. Oct. 20, 

### 2016). In the 

### present case, 

### the Commonwealth argues this claim is waived because Saunders 

### "did not include it in 

### the 

### substantive portion of his PCRA 

### petition[,]" but 

### rather, requested such 

### relief only in 

### the 

### "prayer for relief" paragraph. Commonwealth's Brief at 15. 

### It asserts, 

### correctly, 

### that issues not included in a PCRA

### petition are waived. 

### Id.



## -5

### J-S74024-16
However, our review of the record reveals 

### this claim was 

### adequately raised in 

### Saunders' 

### pro se PCRA 

### petition. As noted above, Saunders 

### averred, 

### inter alia, 

### that trial counsel 

### "refused to put 

### [an] appeal, 

### reconsideration in 

### for me because he said its (sic) awaste of

### time." Petition 

### for Post Conviction Collateral Relief, 

### 11/5/2013, at 3. This

### statement, at the 

### very least, implies Saunders requested counsel 

### file a 

### motion 

### for reconsideration of sentence. Moreover, the 

### Commonwealth ignoresthe fact 

### that Saunders did, 

### himself, file a 

### pro se post-sentence motion 

### for reconsideration of sentence,which was 

### never addressed by 

### the 

### trial court. Accordingly, we refusetofind Saunders waived 

### thisclaim on appeal. Nonetheless, 

### pursuant to 

### Fransen,

### supra, Saunders is not 

### entitled to 

### relief

### perse. Rather, he 

### mustdemonstrate at an 

### evidentiary hearing 

### that he requested counsel 

### file post-sentence motions, 

### that counsel had no reasonable basis to refuse his 

### request, and 

### that he was 

### prejudiced as a result. 

### See 

### Hill, supra. Accordingly, we 

### vacate the 

### order granting PCRA 

### relief, and remand 

### for an 

### evidentiary hearing concerning 

### Saunders' request to 

### filepost-sentence motionsnuncpro tunc. We are also precluded

### from addressing 

### Saunders'

### first issue on appeal,

a challenge to 

### the discretionary aspects of his sentence. 

### It is well- established 

### that such a claim is considered a 

### petition 

### for permission to appeal, and 

### must be 

### first presented to the 

### trial court either during the



## -6

### J-S74024-16
sentencing hearing or in a 

### post-sentence motion.6 

### Commonwealth v. 

### McAfee, 849 A.2d 270, 274

### -275 (Pa. Super. 

### 2004),appealdenied, 860 A.2d 122 (Pa. 

### 2004). "Absent such 

### efforts, an 

### objection to a 

### discretionary aspect of a sentence is

### waived." 

### Id. at275. 

### Therefore, unless Saunders is

### granted permission to 

### file post-sentence motions nunc 

### pro tunc, his challenge to 

### the 

### discretionary aspects 

### of his sentence is waived. Accordingly, 

### this issue is 

### dependent upon 

### resolution of his 

### ineffectiveness

### claim.' In his 

### remaining issue, Saunders argues his 

### probation 

### violation sentence is illegal because 

### the 

### trial court failed to give him 

### credit for time served. 

### See Saunders' Brief at 10. 

### Specifically, he asserts he was 

### entitled to 

### credit for his 

### time in 

### custody from October 19, 2012, until the 

### violation hearing on 

### November 14, 2012, and 

### for the initial 

### term of nine to 23 

### months' incarceration he served on 

### the drug 

### conviction. See

### id. Because a claim 

### thatthe 

### trial court failed to award 

### credit for time served invokes 

### the 

### legality of a sentence, Saunderscontends his claim is cognizable despite the 

### fact he raised it 

### for the 

### first time on appeal. 

### See 

### id. See 

### also 

### Commonwealth v. 

### Fowler, 930 A.2d 586, 595 (Pa. Super. 

### 2007) (

### "[A]

6 Here, Saunders does not assert he raised these claims during the sentencing hearing. Should 

### the PCRA 

### court grant Saunders permission to 

### file post-sentence motions 

### nunc pro tunc, he may raise his challenge to 

### the 

### discretionary aspectsof his sentenceat

### thattime.


## -7

### J-S74024-16
challengeto 

### the

### trial court's failure to award 

### creditfor time spent in 

### custody prior to sentencing involves the 

### legality ofsentence and is cognizable under the PCRA.") 

### (quotation 

### omitted), appealdenied, 944A.2d 756 (Pa. 

### 2008). Pursuant to Section 9760 of the Sentencing Code, a 

### trial court is required to give 

### credit to a 

### defendant 

### for time served 

### "in custody prior to 

### trial, during 

### trial, pending sentence, and pending 

### the resolution of an 

### appeal." 42 Pa.C.S. §

### 9760(1). Furthermore, where an 

### offender is 

### incarcerated on both a 

### [Probation] Board 

### detainer and new 

### criminal charges, all 

### time spent in 

### confinement must be credited to 

### either the new sentence or the 

### original sentence. 

### Commonwealth v. 

### Clark, 885 A.2d 1030, 1033 (Pa. Super. 

### 2005) 

### (quotation 

### omitted). First, 

### with regard to 

### Saunders' contention 

### that he is 

### entitled to 

### credit against his 

### probation violation sentence 

### for the 

### time he served in prison 

### under his 

### original sentence, we find such a claim specious. His nine to 23 

### month prison 

### term was not 

### time spent in 

### custody before 

### trial, during 

### trial, before sentencing or pending an appeal. 

### See 42 Pa.C.S. § 

### 9760(1). Saunders provides no 

### authority for his 

### assertion 

### that he should receive 

### credit on a 

### violation of 

### probation sentence 

### for prison 

### time he served 

### under the original sentence, which was 

### independent ofthe probationary sentence at issue. No 

### relief is

### warranted. However, Saunders 

### correctly maintains

### that he is 

### entitled to 

### creditfor time he served in 

### custody awaiting his 

### violation hearing, presuming he did 

## -8

### J-S74024-16

not receive 

### credit for the 

### time on 

### the new 

### criminal charges. 

### See 

### Clark, 

### supra. The 

### Commonwealth states Saunders' 

### "time in 

### 'from 10-19

### -12' was credited to his Delaware County 

### sentence." Commonwealth'sBriefat 14. In 

### supportof 

### this contention, the Commonwealth refers to 

### Saunders' Delaware 

### County criminal docket, which reveals he received 127 days 

### credit for time served on 

### that conviction. See Docket No. CP-23-CR-

### 0005685-2012. However, our review 

### of

### that docket reveals Saunders was sentenced 

### for the Delaware County offenses on October 9, 2012. The 

### docket indicates Saunders received 127 days 

### credit for time served and was placed on 

### immediate parole. 

### See Docket No. CP-23-CR-

### 0005685-2012. However, because

### that sentencewas imposed on October 9, 2012, Saunders could not have received 

### credit for time spent in 

### custodyfrom October 19, 

### 2012, until November 14, 2012. 

### Unfortunately, the PCRA

### court did not address 

### this issue in its 

### opinion. Consequently, we are unableto 

### determine whether Saunderswas 

### actually in 

### custody during the relevant period, and 

### whether he received 

### credit on any sentence 

### for 

### that time served. Because we are 

### already remanding this appeal 

### for an 

### evidentiary hearing on 

### Saunders' ineffectiveness claim, we 

### direct the PCRA 

### court to also 

### consider Saunders' request 

### for time served 

### credit. Therefore, we 

### vacate the order 

### granting PCRA 

### relief, and remand 

### for
an 

### evidentiary hearing so 

### the PCRA 

### court may consider: (1) Saunders' assertion 

### that counsel was 

### ineffective for failing to 

### file post-sentence 

# -9-

### J-S74024-16
motions, and (2) Saunders' claim

### that he is

### entitled to 

### creditfortime served 

### awaiting his 

### probation

### violation hearing. Order vacated. Case remanded 

### for proceedings 

### consistent with this memorandum. Jurisdiction relinquished. Judgment Entered.



## J:seph D. 

### Seletyn, Prothonotary

Date: 

### 1/17/2017

- 10 -