J-S19012-12

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALEKSEY N. MAKSIMOV

Appellant No. 1414 EDA 2014

Appeal from the Order entered March 21, 2014

In the Court of Common Pleas of Bucks County

Criminal Division at No: CP-09-CR-0000620-2013

BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015

Appellant, Aleksey N. Maksimov, appeals from the March 21, 2014 

order entered in the Court of Common Pleas of Bucks County, denying his 

motion for credit for time served. For the reasons that follow, we remand 

for consideration of Appellant’s motion as a first petition for collateral relief 

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

The facts gleaned from the record reflect that on May 29, 2013, 

Appellant entered into a negotiated guilty plea on charges filed in two 

separate criminal informations dated August 31, 2012 and September 8, 

2012. The August 31 charges included stalking (18 Pa.C.S.A. § 2709(a)(1)), 

intimidation of a witness (18 Pa.C.S.A. § 4952(a)(2)), and related charges; 

the September 8 charges included escape (18 Pa.C.S.A. § 5121) and 

terroristic threats (18 Pa.C.S.A. § 2706(a)(3)). The trial court sentenced 
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Appellant to a term of not less than one day less than one year to not more 

than one day less than two years in prison for stalking, concurrent with 

seven years’ probation for intimidation of a witness. The trial court also 

ordered seven years’ probation for escape, consecutive to the sentences 

stemming from the August 31 charges, and ordered Appellant to have no 

contact with, inter alia, Katie Britton, who filed the report against Appellant 

leading to the August 31 charges. All of the remaining charges against 

Appellant were withdrawn or nolle prossed with the exception of terroristic 

threats, for which no further penalty was imposed. Appellant received credit 

for time served, applied against the sentence for stalking. 

On August 26, 2013, Appellant was found in violation of his parole and 

probation because he contacted Katie Britton from prison. On the stalking 

conviction, the court sentenced Appellant to serve his back time and he was 

paroled immediately. Supervision on the count was closed. The court also 

sentenced Appellant to three to seven years in prison on the intimidation 

conviction as well as seven years’ consecutive probation for escape. The 

court explained the sentence was “appropriate because Appellant’s case was 

one of the most consistent acts of stalking the [c]ourt had seen, Appellant 

showed no appreciation for the effect of his actions on the victim, and the 

[c]ourt was unable to control Appellant’s conduct, even at the Bucks County 

Correctional Facility.” Trial Court 1925(a) Opinion, 7/14/14, at 2-3 (citing 

N.T., 8/26/13, at 95-97). 
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Appellant filed a motion to reconsider the sentence, contending 

transfer to a state facility would render him unable to continue therapy 

treatments for an impulse disorder as he attempted to move on from his 

relationship with Ms. Britton. The trial court granted Appellant time to 

produce a mental health evaluation to substantiate his claim. Appellant 

failed to produce an evaluation in the allotted time. The court denied 

Appellant’s motion for reconsideration of sentence on November 15, 2013. 

Appellant did not file an appeal from that order.1

On February 19, 2014, Appellant filed a pro se motion for credit for 

time served, alleging he was not given credit for the time served from 

September 8, 2012 until August 26, 2013. The trial court denied the motion 

by order entered March 21, 2014, explaining Appellant was given credit 

against his stalking sentence for the period in question. 

Appellant filed a pro se notice of appeal on April 16, 2014. He also 

filed an application for appointment of counsel and an application to proceed 

in forma pauperis (IFP). By order dated August 28, 2014, this Court 

deferred the request for counsel to the trial court and granted Appellant’s 

application to proceed IFP. While the request for counsel was still pending, 

Appellant filed a pro se brief with this Court. Subsequently, the trial court 

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1 We note that Appellant’s judgment of sentence was final on September 25, 

2013, thirty days after imposition of the August 26, 2013 sentence, because 

the filing of a motion to modify a sentence following a probation revocation 

does not toll the 30-day appeal period. Pa.R.Crim.P. 708(E).
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appointed counsel who entered an appearance with this Court and filed a 

motion to submit a counseled brief. While counsel’s motion was pending, 

the Commonwealth filed its brief. By order of this Court dated December 

19, 2014, we granted the motion to file a counseled brief and struck the 

briefs filed by Appellant pro se and by the Commonwealth. Both parties 

subsequently filed briefs in accordance with the briefing schedule. 

In his counseled brief, Appellant contends the trial court erred by not 

appointing counsel for Appellant’s motion for time credit as a PCRA petition 

asserting an illegal sentence. In its 1925(a) opinion, the trial court rejected 

Appellant’s contention that counsel should be appointed because other 

counsel entered an appearance for Appellant on April 10, 2013 and never 

withdrew, and also because Appellant did not request that counsel be 

appointed. Trial Court 1925(a) Opinion, 7/14/14, at 4. However, a review 

of the trial court opinion reveals that the trial court considered the motion 

simply as a motion for time credit, without regard to whether it was timely 

filed under 42 Pa.C.S.A. § 5505,2and never entertained it as a petition for 

post-conviction relief. Rather than address the motion in the context of the 

PCRA, the trial court instead explained that Appellant was not entitled to 

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2

“Modification of orders - Except as otherwise provided or prescribed by 

law, a court upon notice to the parties may modify or rescind any order 

within 30 days after its entry, notwithstanding the prior termination of any 

term of court, if no appeal from such order has been taken or allowed.” 42 

Pa.C.S.A. § 5505.
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time for credit served because the time had already been credited against 

another sentence. Trial Court 1925(a) Opinion, 7/14/14, at 4, 5. 

Appellant argues his motion for credit for time served should have 

been treated as a PCRA petition.3 “[A]ny petition filed after the judgment of 

sentence becomes final will be treated as a PCRA petition.” 

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). The 

Commonwealth agrees, stating, “Appellant’s claim of entitlement to credit 

for time spent in custody prior to sentencing, and the [trial] court’s failure to 

award same, is a claim challenging the legality of sentence.” 

Commonwealth Brief at 11 (citing Commonwealth v. Beck, 848 A.2d 987 

(Pa. Super. 2004)).4 See also Commonwealth v. Hollawell, 604 A.2d 

723, 725 (Pa. Super. 1992) (an appellant’s challenge to the trial court’s 

failure to award credit for time served prior to sentencing involves legality of 

sentence).

We agree. The PCRA is “the sole means of obtaining collateral relief 

and encompasses all other common law and statutory remedies . . . 

including habeas corpus and coram nobis.” 42 Pa.C.S.A. § 9542. Further, 

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3 There is no PCRA timeliness issue for the February 28, 2014 motion, which 

was filed well within one year of September 25, 2013, when Appellant’s 

judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1). See n.1.

4 While agreeing Appellant’s motion should have been treated as a timely 

first PCRA petition, the Commonwealth contends that, on the merits, the 

trial court’s denial of Appellant’s motion was proper. Commonwealth Brief at 

9, 10-11. 
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challenges to the legality of sentence are cognizable under the PCRA. 42 

Pa.C.S.A. § 9543(a)(2)(vii); Commonwealth v. Fahy, 737 A.2d 214, 223 

(Pa. 1999). As such, as an underlying substantive claim that can potentially 

be remedied under the PCRA, the claim is exclusive to the PCRA. 

Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) 

(citation omitted).

Appellant’s claim of trial court error for failing to award time credit is 

not the sort of patent, obvious error that expands a trial court’s ability to 

modify a sentence beyond the 30-day time limitation under 42 Pa.C.S.A. 

§ 5505. As our Supreme Court explained in Commonwealth v. Borrin, 80 

A.3d 1219 (Pa. 2013), “[w]e have set a high bar for differentiating between 

errors that may be corrected under the inherent powers of trial court, and 

those that may not, describing correctible errors as those determined to be 

patent and obvious mistakes.” Id. at 1227 (citation and quotations 

omitted). Therefore, because the trial court did not have jurisdiction when 

the petition was filed, it could not consider the merits of the petition as a 

motion to correct the credit for time served. Instead, the trial court should 

have entertained it as a timely first PCRA petition, challenging the legality of 

sentence.

Because Appellant’s petition should have been considered a PCRA 

petition, we vacate the trial court’s March 21, 2014 order and remand for 
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appointment of PCRA counsel and further proceedings under the PCRA 

consistent with this Memorandum. 

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2015