J-S47028- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. LEROY JACKSON, Appellant No. 3028 EDA 2013

Appeal from the PCRA Order of October 11 , 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- CR -0500841-2004 BEFORE: MUNDY, OLSON AND WECHT, JJ. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 05, 2014 Appellant, Leroy Jackson, appeals from the order enter ed on October 11, 2013 dismissing his petition filed under the Post-Co nviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 -9546. We affirm. The PCRA court accurately summarized the factual backgro und and procedural history of this case as follows: On January 20, 2006, [Appellant] pled guilty before th[e revocation c]ourt [ 1] to one count of forgery[. 2 Appellant] received a negotiated sentence of 6 to 23 mont hs’ imprisonment, plus three years[’] reporting probation. [Appellant] was granted parole on October 26, 2006. After two positive drug tests, he absconded from parole in May of 2007. On December 5, 2009, [Appellant] was arrested for rob bery and

1 For clarity, we refer to proceedings relating to Appel lant’s forgery charge, and subsequent probation revocation, before the Honora ble Glenn B. Bronson as the “revocation court.”

2 18 Pa.C.S.A. § 4101.J-S47028- 14

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related offenses (CP- 5I

- CR -0015961-2009). On October 25, 2010, following a non-jury trial before the Honorab le Roxanne Covington, [Appellant] was convicted of the robbery ch arges. On November 30, 2010, while awaiting sentencing on th e robbery charges, [Appellant] appeared before th[e rev ocation c]ourt for a hearing regarding alleged violations of the terms of his parole and probation, including technical violation s (failing drug tests and absconding) and direct violations (commit ting a robbery and related offenses). After finding [Appell ant] to be in violation of the terms of probation and parole, the [revocation c]ourt terminated [Appellant’s] parole, revoked his pr obation, and sentenced him to 111⁄2 to 23 months’ imprisonment in county jail plus three years reporting probation. Since the time of his arrest on December 5, 2009, [Appe llant] had been held in custody nearly one year due to both th[e revocation c]ourt’s detainer for the pending violatio n hearing, and for not posting bail on the pending robbery charg es. Nevertheless, th[e revocation c]ourt ordered, when impo sing sentence, and without objection from defense counsel, tha t [Appellant] not receive credit for time served. The r eason for this order was that the [revocation c]ourt believed tha t [Appellant] deserved more time in prison for his misbeh avior than the maximum county sentence that could be imposed. By imposing a county sentence of imprisonment of 111⁄2 to 23 months, but not awarding [Appellant] credit for time served, the [revocation c]ourt achieved a sentence that it thought t o be fair, while keeping [Appellant] in county custody, which wa s [Appellant’s] preference. The [revocation c]ourt’s effort to keep [Appellant] in the [c]ounty failed to come to fruition when on December 10, 2010, Judge Covington imposed a state sentence of two-and-one -half to five years’ imprisonment for the robbery, to be fo llowed by two years[’] reporting probation, to run concurrent to any other sentence [Appellant] was serving, and with credit for ti me served. [Appellant] did not file post-sentence motions or an appeal on either the case before th[e revocation c]ou rt or the case before Judge Covington. On January 20, 2011, a [r]ecords [s]pecialist from the Department of [] Corrections wrote to th[e revocation c]ourt, inquiring as to the proper time credit. Per the [revo cationJ-S47028- 14

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c]ourt’s direction at sentencing, the credit would have g one to Judge Covington ’s sentence, since th[e revocation c]ourt awarded no time credit when sentencing on the probatio n violation. Nevertheless, on January 25, 2011, th[e r evocation c]ourt responded by letter that credit for time served should be applied in accordance with the calculation of Christoph er Thomas, the Director of Classification, Movement, and Registration for the Philadelphia Prison System. Un der [] Thomas’[] calculation, all of the credit went to [Appel lant’s] forgery sentence on the violation of probation and no t to the robbery sentence.

* * * On July 25, 2011, [Appellant] filed a pro se PCRA petition [], claiming that his time credit was not properly applied. On February 3, 2012, [counsel] was appointed to represent [Appellant]. On December 18, 2012, [counsel] filed a n [a]mended PCRA [p]etition [], raising the time credi t issue and other claims. On September 13, 2013, after reviewin g [Appellant’s] [a]mended [p]etition, the Commonwealth ’s response, and supplemental pleadings by both sides, th[e PCRA c]ourt r uled that the claims set forth in [Appellant’s] petit ion were without merit and, pursuant to [Pennsylvania Rul e of Criminal Procedure] 907, the [PCRA c]ourt issued notice of its intent to dismiss the petition without a hearing []. [Appellant] did not resp ond to the [PCRA c]ourt’s [Rule] 907 [n]otice, and on October 11, 2013, the [PCRA c]ourt entered an ord er dismissing [Appellant’s] PCRA [p]etition. PCRA Court Opinion, 1/23/14, at 1-3 (citation and fo otnotes omitted). This timely appeal followed. 3 Appellant raises three issues for our review.

3 On October 31, 2013, the PCRA court ordered Appellan t to file a concise statement of errors complained of on appeal (“concise sta tement”). See Pa.R.A.P. 1925(b). On December 16, 2013 Appellant f iled his concise statement. On January 23, 2014, the PCRA court issued its Rule 1925(a) opinion. All issues raised on appeal were included in Appellant’s concise statement.J-S47028- 14

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1. Did the PCRA court err in dismissing [Appellant’s] a mended petition because his November 30, 2010 sentence was an i llegal sentence? 2. Did the PCRA court err in dismissing [Appellant’s] a mended petition because under Pennsylvania law the time served should have gone to [Appellant’s] new case and not his parol e detainer case? 3. Did the PCRA court err in dismissing [Appellant’s] a mended petition because the [revocation] court had the power t o order [Appellant] receive no time credit when the time was o wed to a different case? Appellant’s Brief at 4 (capitalization removed). We review a PCRA court’s findings of fact to determine if they are supported by the record and a PCRA court’s legal conclusio ns de novo

. See

Commonwealth v. Charleston , 2014 WL 2557575, *4 (Pa. Super. June 6, 2014) (citation omitted). Appellant’s amended petiti on and his claims on appeal implicate the legality of his sentence. “Issues rel ating to the legality of a sentence are questions of law.” Commonwealth v. Akbar , 91 A.3d 227, 238 (Pa. Super. 2014) (citation omitted). Ther efore, our standard of

review is de novo and our scope of review is plenary. See Commonwealth

v. Alicia , 92 A.3d 753, 760 (Pa. 2014). Appellant first contends that his sentence was illegal beca use the revocation court imposed a new sentence, instead of order ing him to serve the remainder of the sentence, for violating the term s of his parole. Appellant is correct that “a court faced with a parole vi olation must recommit the parolee to serve the remainder of the original se ntence ofJ-S47028- 14

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imprisonment[.]” Commonwealth v. Stafford , 29 A.3d 800, 804 (Pa. Super. 2011) (citation omitted). “There is no authori ty for giving a new

sentence with a minimum and maximum.” Commonwealth v. Holmes , 933 A.2d 57, 59 n.5 (Pa. 2007) (citation omitted). However, in the present case the revocation court did n ot revoke Appellant’s parole and impose a new sentence with a min imum and maximum for Appellant’s parole violation. Instead, t he record is clear that

the revocatio n court terminated Appellant’s parole. See N.T., 11/30/10, at 10 (“I’m going to terminate your parole”). Appellant relies upon the title of the sentencing order, which reads “Violation of Parole,” Sentencing Order, 11/30/10 (capitalization removed), in support of his argument that the revocation court imposed a new sentence for his parole vi olation. However, the sentencing order states that “Parole is terminated.” Id. Accordingly, it is clear that Appellant’s parole was terminated and he was not senten ced to a new minimum and maximum for his parole violation. Instead, the revocation court sentenced Appellant to a n ew minimum and maximum for his probation violation. See id. (“Probation is revoked . . . and the following sentence is hereby imposed”); N .T., 11/30/10, at 10 (“I’m going to . . . revoke your probation.”). The r evocation court had the authority to revoke Appellant’s probation. This Cour t has held that a defendant who violates the terms of his probation whil e still on parole, and prior to beginning his term of probation, may have h is parole terminated andJ-S47028- 14

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probation anticipatorily revoked. Commonwealth v. Castro , 856 A.2d 178, 180 n.1 (Pa. Super. 2004), citing Commonwealth v. Ware , 737 A.2d 251 (Pa. Super. 1999); see Commonwealth v. Miller , 516 A.2d 1263, 1265 (Pa. Super. 1986), appeal denied , 528 A.2d 956 (Pa. 1987), citing

Commonwealth v. Dickens , 475 A.2d 141 (Pa. Super. 1984). When revoking a defendant’s probation, a revocation co urt may impose any sentence that would have been lawful at the time the probationary sentence was imposed. See Commonwealth v. Tann , 79 A.3d 1130, 1132 (Pa. Super. 2013), appeal denied , 29 EAL 2014 (Pa. July 1, 2014) (citation omitted). In this case, the revocation court’s probation revocation sentence was lawful at the time it was impose d. Accordingly, Appellant’s sentence was legal. 4 In his second issue on appeal, Appellant argues that the PCRA court erred by dismissing his petition because he should have received credit for time served on his robbery conviction, and not his revo cation of probation sentence. As the PCRA court explained: The difference significantly affected [Appellant’s] mini mu m and maximum release dates. Because Judge Covington’s sentence

4 Appellant had a statutory right to credit for the ti me he spent incarcerated prior to his parole revocation hearing. S ee 42 Pa.C.S.A. § 9760(4). However, Appellant was being incarcerated for both the robbery charge and the parole detainer. Appellant is only entitled to credit against one of those two sentences. See Commonwealth v. Ellsworth , 2014 WL 3919729, *1 (Pa. Super. Aug. 12, 2014) (citation omitted). As J udge Covington eventually granted Appellant credit against his robber y sentence for the time he spent incarcerated prior to his revocation hearing, h is sentences were legal.J-S47028- 14

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on the robbery charges was longer than, and concurrent t o, the [revocation] sentence, the application of the time credi t to the [revocation] sentence did not affect [Appellant’s] aggr egate se ntence at all, whereas application of the credit to the robbery sentence would have resulted in nearly a one year redu ction in the minimum and maximum sentences. PCRA Court Opinion, 1/23/14, at 3. However, this claim is not cognizable under the PCRA. As this Court recently explained: [A] PCRA petition is not the proper method for contest ing the [Department of Corrections] calculation of sentence.

. . . If the alleged error is thought to be the result of an erron eous computation of sentence by the [Department] of Correcti ons, then the appropriate vehicle for redress would be an o riginal action in the Commonwealth Court challenging the [Department’s] computation. If, on the other hand, t he 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 sen tence is deemed cognizable as a due process claim in PCRA proceedin gs. Commonwealth v. Heredia , 2014 WL 3670010, *2 (Pa. Super. July 24, 2014) (internal alterations and citation omitted). In this case Appellant does not argue that the revocat ion court illegally failed to award him credit for time served. Instead, he argues that the Department of Corrections erred by awarding that credi t to his probation revocation sentence instead of his robbery conviction. U nder theseJ-S47028- 14

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circumstances, Appellant’s only recourse is the filing of a n original action in

the Commonwealth Court. Appellant also argues that the revocation court lacked jurisdiction to order that his time served credit be applied to his pro bation revocation sentence instead of his robbery conviction. However, the revocation court did not order that Appellant’s time served be applied to his revocation sentence instead of his robbery conviction. Instead, the revocation court merely responded to a letter sent by the Department o f Corrections and referred the Department to the Philadelphia Prison S ystem regarding the calculation of Appellant’s sentence. Although the revoca tion court could have clarified its sentencing order, see Barndt v. Pa. Dep't of Corr. , 902 A.2d 589, 597

– 598 (Pa. Cmwlth. 2006), it was not required to do so. It chose to rely upon the plain language of its sentencing order. This decision was not an error and does not entitle Appellant to re lief. In his third issue on appeal, Appellant contends that t he revocation court erred because it could not direct that Appellant’s time served be credited against his parole revocation sentence. This a rgument is without

merit for two reasons. First, the argument rests on the faulty premise that Appellant was sentenced for a parole violation. As we have explained above, the revocation court did not order that Appellant serv e back time for his parole violation. Instead, the revocation court t erminated Appellant’s parole and sentenced him for anticipatorily violating the ter ms of his probation.J-S47028- 14

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Second, the revocation court did not award Appellant cr edit for time served with respect to any sentence that it imposed. Instead, Judge Covington

awa rded credit for time served as to Appellant’s robbery conviction. Accordingly, the PCRA court properly dismissed Appellant’ s PCRA petition, which alleged that Appellant received an illegal sente nce following his probation revocation hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/5/2014