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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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-51-CR-0500841-2004 

BEFORE: MUNDY, OLSON AND WECHT, JJ. 

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 05, 2014 

Appellant, Leroy Jackson, appeals from the order entered on October 

11, 2013 dismissing his petition filed under the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

The PCRA court accurately summarized the factual background 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 months’ 

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 robbery and 

 

1

For clarity, we refer to proceedings relating to Appellant’s forgery charge, 

and subsequent probation revocation, before the Honorable Glenn B. 

Bronson as the “revocation court.”

 

2

 18 Pa.C.S.A. § 4101. 
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related offenses (CP-5I-CR-0015961-2009). On October 25, 

2010, following a non-jury trial before the Honorable Roxanne 

Covington, [Appellant] was convicted of the robbery charges. 

On November 30, 2010, while awaiting sentencing on the 

robbery charges, [Appellant] appeared before th[e revocation 

c]ourt for a hearing regarding alleged violations of the terms of 

his parole and probation, including technical violations (failing 

drug tests and absconding) and direct violations (committing a 

robbery and related offenses). After finding [Appellant] to be in 

violation of the terms of probation and parole, the [revocation 

c]ourt terminated [Appellant’s] parole, revoked his probation, 

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, [Appellant] 

had been held in custody nearly one year due to both th[e 

revocation c]ourt’s detainer for the pending violation hearing, 

and for not posting bail on the pending robbery charges. 

Nevertheless, th[e revocation c]ourt ordered, when imposing 

sentence, and without objection from defense counsel, that 

[Appellant] not receive credit for time served. The reason for 

this order was that the [revocation c]ourt believed that 

[Appellant] deserved more time in prison for his misbehavior 

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 to be fair, 

while keeping [Appellant] in county custody, which was 

[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 followed by 

two years[’] reporting probation, to run concurrent to any other 

sentence [Appellant] was serving, and with credit for time 

served. [Appellant] did not file post-sentence motions or an 

appeal on either the case before th[e revocation c]ourt 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 [revocation 
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c]ourt’s direction at sentencing, the credit would have gone to 

Judge Covington’s sentence, since th[e revocation c]ourt 

awarded no time credit when sentencing on the probation 

violation. Nevertheless, on January 25, 2011, th[e revocation 

c]ourt responded by letter that credit for time served should be 

applied in accordance with the calculation of Christopher 

Thomas, the Director of Classification, Movement, and 

Registration for the Philadelphia Prison System. Under [] 

Thomas’[] calculation, all of the credit went to [Appellant’s] 

forgery sentence on the violation of probation and not 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 an 

[a]mended PCRA [p]etition [], raising the time credit issue and 

other claims. On September 13, 2013, after reviewing 

[Appellant’s] [a]mended [p]etition, the Commonwealth’s 

response, and supplemental pleadings by both sides, th[e PCRA 

c]ourt ruled that the claims set forth in [Appellant’s] petition 

were without merit and, pursuant to [Pennsylvania Rule of 

Criminal Procedure] 907, the [PCRA c]ourt issued notice of its 

intent to dismiss the petition without a hearing []. [Appellant] 

did not respond to the [PCRA c]ourt’s [Rule] 907 [n]otice, and 

on October 11, 2013, the [PCRA c]ourt entered an order 

dismissing [Appellant’s] PCRA [p]etition.

PCRA Court Opinion, 1/23/14, at 1-3 (citation and footnotes omitted). This 

timely appeal followed.3

 

 Appellant raises three issues for our review. 

 

3

 On October 31, 2013, the PCRA court ordered Appellant to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On December 16, 2013 Appellant filed 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. 
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1. Did the PCRA court err in dismissing [Appellant’s] amended 

petition because his November 30, 2010 sentence was an illegal 

sentence? 

2. Did the PCRA court err in dismissing [Appellant’s] amended 

petition because under Pennsylvania law the time served should 

have gone to [Appellant’s] new case and not his parole detainer 

case? 

3. Did the PCRA court err in dismissing [Appellant’s] amended 

petition because the [revocation] court had the power to order 

[Appellant] receive no time credit when the time was owed 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 conclusions de novo. See

Commonwealth v. Charleston, 2014 WL 2557575, *4 (Pa. Super. June 6, 

2014) (citation omitted). Appellant’s amended petition and his claims on 

appeal implicate the legality of his sentence. “Issues relating to the legality 

of a sentence are questions of law.” Commonwealth v. Akbar, 91 A.3d 

227, 238 (Pa. Super. 2014) (citation omitted). Therefore, 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 because the 

revocation court imposed a new sentence, instead of ordering him to serve 

the remainder of the sentence, for violating the terms of his parole. 

Appellant is correct that “a court faced with a parole violation must recommit 

the parolee to serve the remainder of the original sentence of 
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imprisonment[.]” Commonwealth v. Stafford, 29 A.3d 800, 804 (Pa. 

Super. 2011) (citation omitted). “There is no authority 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 not revoke 

Appellant’s parole and impose a new sentence with a minimum and 

maximum for Appellant’s parole violation. Instead, the record is clear that 

the revocation 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 violation. However, 

the sentencing order states that “Parole is terminated.” Id. Accordingly, it 

is clear that Appellant’s parole was terminated and he was not sentenced to 

a new minimum and maximum for his parole violation. 

Instead, the revocation court sentenced Appellant to a new 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 revocation court had the 

authority to revoke Appellant’s probation. This Court has held that a 

defendant who violates the terms of his probation while still on parole, and 

prior to beginning his term of probation, may have his parole terminated and 
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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 court 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 imposed. 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 revocation of probation 

sentence. As the PCRA court explained: 

The difference significantly affected [Appellant’s] minimum and 

maximum release dates. Because Judge Covington’s sentence

 

4

 Appellant had a statutory right to credit for the time he spent incarcerated 

prior to his parole revocation hearing. See 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 Judge Covington 

eventually granted Appellant credit against his robbery sentence for the time 

he spent incarcerated prior to his revocation hearing, his sentences were 

legal. 
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on the robbery charges was longer than, and concurrent to, the 

[revocation] sentence, the application of the time credit to the 

[revocation] sentence did not affect [Appellant’s] aggregate 

sentence at all, whereas application of the credit to the robbery 

sentence would have resulted in nearly a one year reduction 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 contesting the 

[Department of Corrections] calculation of sentence. . . . If the 

alleged error is thought to be the result of an erroneous 

computation of sentence by the [Department] of Corrections, 

then the appropriate vehicle for redress would be an original 

action in the Commonwealth Court challenging the 

[Department’s] computation. If, on the other hand, 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. 

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 sentence is 

deemed cognizable as a due process claim in PCRA proceedings. 

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 revocation court illegally 

failed to award him credit for time served. Instead, he argues that the 

Department of Corrections erred by awarding that credit to his probation 

revocation sentence instead of his robbery conviction. Under these 
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circumstances, Appellant’s only recourse is the filing of an 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 probation 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 of Corrections and 

referred the Department to the Philadelphia Prison System regarding the 

calculation of Appellant’s sentence. Although the revocation 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 relief. 

In his third issue on appeal, Appellant contends that the revocation 

court erred because it could not direct that Appellant’s time served be 

credited against his parole revocation sentence. This argument 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 serve back time for his 

parole violation. Instead, the revocation court terminated Appellant’s parole 

and sentenced him for anticipatorily violating the terms of his probation. 
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Second, the revocation court did not award Appellant credit for time served 

with respect to any sentence that it imposed. Instead, Judge Covington 

awarded 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 sentence following his 

probation revocation hearing. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/5/2014