J-S15040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANGEL COLON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2418 EDA 2021

Appeal from the PCRA Order Entered October 27, 2021

In the Court of Common Pleas of Chester County 

Criminal Division at No: CP-15-CR-0002033-2004 

COMMONWEALTH OF PENNSYLVANIA

v.

ANGEL COLON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2419 EDA 2021

Appeal from the PCRA Order Entered October 27, 2021

In the Court of Common Pleas of Chester County 

Criminal Division at No: CP-15-CR-0004401-2004

BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 13, 2022

Angel Colon (“Colon”) appeals from the order dismissing his pro se 

petition for clarification or correction of his judgment of sentence. We vacate 

and remand for further proceedings.
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We briefly summarize the following relevant factual and procedural 

history. In 2005, Colon pleaded guilty to corrupt organizations1 at docket 

number 2033-04 and three counts of delivery of a controlled substance2 at 

docket number 4401-04. Colon later moved to withdraw his guilty plea. The 

trial court denied the motion and sentenced him to an aggregate of twenty to 

fifty years of imprisonment. This Court affirmed Colon’s judgment of sentence 

on direct appeal, and Colon did not petition for allowance of appeal with our 

Supreme Court. The trial court reinstated Colon’s right to petition our 

Supreme Court for allowance of appeal following his first Post Conviction Relief 

Act (“PCRA”)3 petition, and our Supreme Court denied the petition on 

November 6, 2008. Colon filed several PCRA petitions between 2009 and

2015, all of which the PCRA court dismissed. In 2018, Colon filed a motion 

for time credit, which the court construed to be a PCRA petition and dismissed 

without a hearing. This Court affirmed. See Commonwealth v. Colon, 216 

A.3d 409 (Pa. Super. Apr. 22, 2019) (unpublished memorandum).

On August 25, 2021, Colon filed a pro se “Petition for Clarification and/or 

Correction of the Sentence in the Nature of ‘Credit for Time Served’, [sic] Nunc 

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1 See 18 Pa.C.S.A. § 911(b)(3).

2 See 35 P.S. § 780-113(a)(30).

3 See 42 Pa.C.S.A. §§ 9541-9546.
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Pro Tunc.” In his petition, Colon asked the trial court to correct the sentencing 

judge’s “non-calculation of credit time in custody.” See Petition, 8/25/21, at 

1 (unnumbered). Colon further alleged that his co-defendant, also originally 

sentenced in 2005, had received credit for time served following a similar 

petition in 2020. See id. at 1-2 (unnumbered). The trial court treated Colon’s 

petition as an untimely PCRA petition and, pursuant to Pennsylvania Rule of 

Criminal Procedure 907, issued a notice of intent to dismiss the petition on 

September 23, 2021. Colon filed a response to the court’s Rule 907 notice, in 

which he maintained that, in his petition, he had “asked [the court] to clarify 

whether his time in custody would be credited toward his sentence . . ..” 

Response, 10/14/21, at 2.4 The trial court nevertheless concluded Colon’s 

petition was an untimely PCRA petition and dismissed it without a hearing on 

October 27, 2021. See Order, 10/27/21. The trial court declined to 

acknowledge Colon’s assertion that he was seeking a clarification of his 

sentence; nor did the court address Colon’s assertion that his co-defendant 

had recently filed the same petition and received relief. Colon filed timely 

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4 Colon conceded that should the court clarify that his sentence included no 

credit for time served, he would be challenging the legality of his sentence. 

See Response, 10/14/21, at 2. Colon again claimed his co-defendant had 

filed a similar petition in 2020, which the court granted. See id. at 3.
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notices of appeal, and both he and the trial court complied with Pennsylvania 

Rule of Appellate Procedure 1925.5

Colon raises the following issues for our review:

1. Whether[,] where [Colon] filed a petition for clarification and/or 

correction of the sentence in the nature of “credit for time 

served[,]” which the . . . trial court treated as [his] sixth PCRA

petition, where [Colon’s] alleged error was thought to be 

attributable to ambiguity in the sentence imposed by the trial 

court (writ of habeas corpus ad subjiciendum)[,] it was an 

abuse of discretion for the trial court to determine that it lacked

subject matter jurisdiction where it granted jurisdiction to 

[Colon’s] co-defendant and award[ed] credit [for] time served?

2. Whether[,] where [Colon] filed a petition for clarification and/or 

correction of the sentence in the nature of “credit for time 

served” (writ of habeas corpus ad subjiciendum)[,] which the 

trial court improperly characterized as a motion for time 

credit[,] and treated as [Colon’s] sixth [PCRA] petition

cognizable under the [PCRA], it was an abuse[] of discretion to 

deny [his] request to amend [the petition] contained in his 

[Rule] 907(1) notice response, so [as] to prove an exception 

unde[r] 42 Pa.C.[S].A. § 9545(b)(1) to the jurisdictional time 

limitation[,] where a writ of habeas corpus ad subjiciendum

may not be used to circumvent the [PCRA’s] time-bar 

limitation[,] when [Colon] challenge[d] the legality of a trial 

court’s alleged[] [f]ailure [to] award credit for time served[,]

as required by law[,] in imposing a sentence[,] [but]

award[ing] credit [for] time[-]served to his co-defendant under 

the same circumstances?

3. Whether the trial court erred in determining [that] . . . there 

are no genuine issues concerning any material facts, that 

[Colon] is not entitled to PCRA relief[,] and . . .holding [that] a 

hearing would serve no purpose?

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5 Colon filed a Rule 1925(b) statement, though the trial court did not order 

him to file one. The trial court then filed a responsive Rule 1925(a) opinion.
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Colon’s Brief at 4 (unnecessary capitalization omitted, italics added).

Our standard of review of an order dismissing a PCRA petition is wellsettled:

Our review of a PCRA court’s decision is limited to examining 

whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. We view the record in the light most favorable to the 

prevailing party in the PCRA court. We are bound by any 

credibility determinations made by the PCRA court where they are 

supported by the record. However, we review the PCRA court’s 

legal conclusions de novo. 

Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation 

and quotations omitted). 

The PCRA is intended to be the sole means of achieving post-conviction 

collateral relief. See Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. 

Super. 2013).6 “Issues that are cognizable under the PCRA must be raised in 

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6 Under the PCRA, any petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42 

Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment of sentence becomes 

final “at the conclusion of direct review, including discretionary review in the 

Supreme Court of the United States and the Supreme Court of Pennsylvania, 

or at the expiration of time for seeking the review.” 42 Pa.C.S.A. 

§ 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature, 

and a court may not address the merits of the issues raised if the PCRA petition 

was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 

(Pa. 2010). Pennsylvania courts may consider an untimely PCRA petition if 

the petitioner can plead and prove one of three exceptions set forth in 42 

Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of these exceptions 

“shall be filed within one year of the date the claim could have been 

presented.” 42 Pa.C.S.A. § 9545(b)(2).
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a timely PCRA petition and cannot be raised in a habeas corpus petition.” Id. 

at 466. Therefore, the PCRA is “the exclusive vehicle for obtaining postconviction collateral relief . . . regardless of the manner in which the petition 

is titled.” Commonwealth v. Hromek, 232 A.3d 881, 884 (Pa. Super. 2020) 

(internal citation and quotations omitted) (noting that the PCRA generally 

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

habeas corpus and coram nobis”) (italics added); see also Commonwealth 

v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007) (explaining that 

regardless of how a petition filed after a judgment of sentence is titled, courts 

must treat it as a PCRA petition if it seeks relief contemplated by the PCRA).

A challenge to the “legality of a trial court’s alleged failure to award 

credit for time served as required by law in imposing sentence” is cognizable 

under the PCRA. Commonwealth v. Perry, 563 A.2d 511, 513 (Pa. 1989)

(emphasis in original; internal citation omitted). However, “[i]f . . . 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.” Id. at 513 

(internal citation omitted). Accord Commonwealth v. Wyatt, 115 A.3d 

876, 879 (Pa. Super. 2015) (distinguishing the different types of claims a 

prisoner may make regarding credit for time served and the appropriate 

mechanism for each claim).
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Colon argues in his first issue that the trial court erred in concluding it 

lacked jurisdiction to entertain his petition for clarification and/or correction of 

his sentence. He maintains his sentence is ambiguous because it does not 

account for the time he spent in custody prior to sentencing, while his similarly 

situated co-defendant received credit for time served. Believing this “was 

attributable to ambiguity in the sentence imposed by the [t]rial [c]ourt, . . . 

he sought [an explanation] for the discrep[a]ncy” by filing a petition for 

clarification and/or correction of the sentence. Colon’s Brief at 13. Colon 

argues that, under Perry, his claim was not a challenge to the legality of his 

sentence, and therefore it was not cognizable under the PCRA. He accordingly 

maintains that the trial court erred by treating the petition as a PCRA petition 

rather than a writ of habeas corpus ad subjiciendum. Id. at 13-14.

The trial court reasoned that Colon raised a challenge to the legality of 

his sentence, and thus, his petition was cognizable under the PCRA, and 

therefore subject to the PCRA’s timeliness requirement. See Trial Court 

Opinion, 11/29/21, at 6. The trial court explained that since Colon’s petition 

was untimely under the PCRA, and he failed to plead an exception to the 

jurisdictional time-bar, the court lacked jurisdiction to entertain the petition. 

The court thus concluded it correctly dismissed the petition. See id. at 7-8.

Following our review, we determine the trial court committed an error 

of law in treating Colon’s petition for clarification and/or correction as a PCRA 
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petition. Colon filed a petition seeking “clarification and/or correction” of his 

sentence based on the trial court’s “non-calculation” of his credit for time 

served in custody prior to sentencing. See Petition, 8/25/21, at 1 

(unnumbered). The trial court nevertheless concluded the petition was 

cognizable under the PCRA and filed a Rule 907 notice of intent to dismiss. 

Colon then again explained in his response to the Rule 907 notice that he was 

asking the court to “clarify whether his time in custody would be credited 

towards his sentence,” given the matter had not been addressed in his case, 

while his co-defendant had recently received relief in the form of credit for 

time served. See Response, 10/14/21, at 2.7 Notwithstanding Colon’s 

response, the trial court again concluded Colon’s petition was an untimely 

PCRA petition and dismissed it on jurisdictional grounds. See Order, 

10/27/21, at 1-2 n.1. However, because Colon’s petition was not a challenge 

to the legality of his sentence, it was not cognizable under the PCRA, and 

therefore not subject to the jurisdictional time-bar. The trial court therefore

committed an error of law by construing Colon’s petition as a challenge to the 

legality of his sentence, concluding it was thus an untimely PCRA petition, and 

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7 Our review of the transcript from the sentencing hearing reveals that the 

matter of credit for time served was not addressed, which lends credence to 

Colon’s claim that his sentence was ambiguous. See generally N.T., 4/7/06. 

We are unable to find the sentencing sheet in the certified record.
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then dismissing the petition on jurisdictional grounds. Accordingly, we vacate 

the order dismissing Colon’s petition and remand for the trial court to resolve 

the ambiguity in Colon’s sentence, namely, to determine whether Colon’s

sentence includes credit for time served in custody prior to sentencing. See 

Perry, 563 A.2d at 513; Wyatt, 115 A.3d at 879.

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Order vacated. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished.

Judge Murray joins in this decision.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/13/2022

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8 Because we vacate and remand based on Colon’s first issue, we need not 

reach the merits of his second and third issues.