J-S41014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALEXANDER PABON, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 891 MDA 2022

Appeal from the Order Entered May 19, 2022

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0001539-2021

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY LAZARUS, J.: FILED DECEMBER 13, 2022

Alexander Pabon, Jr., appeals from the order, entered in the Court of 

Common Pleas of York County, dismissing his pro se petition seeking credit 

for time served. Both the trial court and the Commonwealth concede that 

Pabon’s petition should have been treated as a timely first petition under the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Accordingly, 

we vacate and remand for further proceedings. 

On December 14, 2020, Pabon was arrested and charged with one count 

of possession with intent to deliver cocaine.1 On November 8, 2021, Pabon 

entered a negotiated guilty plea and was immediately sentenced to 21 to 48 

months’ incarceration. Prior to Pabon entering his plea, there was extensive 

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).
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discussion on the record regarding the proper application of his nearly-oneyear credit for time served. On the advice of his counsel, Pabon ultimately 

decided to accept the Commonwealth’s plea offer and to ask the court to make 

his sentence effective that day, thereby foregoing his credit on the instant 

matter in the hope that the Pennsylvania State Parole Board would apply the 

time to his violation, even though there was no guarantee that that would 

happen.

Pabon did not file post-sentence motions or a direct appeal and the 

parole board failed to grant him a credit towards his back time. On November 

24, 2021, Pabon filed a pro se motion to withdraw his guilty plea on the basis 

that the trial court should have applied his time credit to the instant sentence

pursuant to Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008) 

(holding that if defendant is incarcerated prior to disposition on new charges 

and has both a parole board detainer and has failed for any reason to satisfy 

bail on new charges, credit for time served must be applied to new sentence 

as sentencing condition by sentencing court). 

On March 8, 2022, Pabon filed a pro se petition for credit for time spent 

in custody. On March 25, 2022, plea counsel filed a motion to withdraw as 

counsel, which the court granted on March 28, 2022. Pabon filed another pro 

se petition for credit for time spent in custody on March 29, 2022. Pabon 

alleged that he had been “ill-advised” by plea counsel regarding the 

application of his time credit. On April 27, 2022, Pabon filed a third pro se

petition for credit for time served in custody, again alleging that he had been 
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“ill-advised” by counsel. On May 19, 2022, the trial court denied the third 

petition.2 

Pabon filed a timely notice of appeal. On June 28, 2022, the trial court 

appointed counsel to represent Pabon on appeal. Counsel filed a Pa.R.A.P. 

1925(b) statement as ordered by the court. Pabon raises the following claim 

for our review: 

Whether the trial court erred in dismissing [Pabon’s] petition for 

time credit, which should have been treated as a PCRA [petition] 

affording [Pabon] the right to counsel?

Brief of Appellant, at 4.

It is well-settled that the PCRA is intended to be the sole means of 

achieving post-conviction relief. See 42 Pa.C.S.A. § 9542; Commonwealth 

v. Haun, 32 A.3d 697 (Pa. 2011). A collateral petition raising an issue that 

is cognizable under the PCRA is to be considered a PCRA petition.

Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001). 

Here, Pabon filed multiple petitions in which he alleged that, due to the 

ineffectiveness of plea counsel, he did not receive the time credit to which he 

was entitled. Allegations of ineffectiveness of counsel are cognizable under 

the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii); see also Commonwealth v. 

Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014) (claim for ineffective 

assistance of counsel in connection with advice rendered regarding whether 

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2

It appears from the certified record that the trial court did not dispose of any 

of Pabon’s other filings. 
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to plead guilty cognizable under section 9543(a)(2)(ii) of PCRA). Claims 

involving the legality of a sentence are also cognizable under the PCRA. See

42 Pa.C.S.A. § 9543(a)(2)(vii); see also Commonwealth v. Menezes, 871 

A.2d 204, 207 (Pa. Super. 2005) (“[A] challenge to the trial court’s failure to 

award credit for time spent in custody prior to sentencing involves the legality 

of sentence and is cognizable under the PCRA.”).

Accordingly, here, the proper course of action for the trial court would 

have been to treat Pabon’s petition(s) as filed under the PCRA and appoint 

counsel to represent him. See Pa.R.Crim.P. 904(C) (court shall appoint 

counsel to represent indigent defendant on first PCRA petition). Therefore, 

we vacate the order of the trial court and remand for the appointment of 

counsel to either pursue Pabon’s claims under the PCRA or file a 

Turner/Finley3 “no-merit” letter, should counsel deem it appropriate.

Order vacated; case remanded with instructions; jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/2022

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

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