J-S11034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RAKIN MAYO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1185 WDA 2016

Appeal from the Order entered July 1, 2016

In the Court of Common Pleas of Blair County 

Criminal Division at No(s): CP-07-CR-0002813-2008

BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 14, 2017

Appellant Rakin Mayo1appeals pro se from the order entered in the 

Court of Common Pleas of Blair County purporting to grant, in part, 

Appellant’s pro se “Petition for Credit for Time Spent in Custody.” After a 

careful review, we vacate and remand for further proceedings consistent 

with this decision. 

The relevant facts and procedural history are as follows: Appellant 

pled guilty to two counts of possession with the intent to deliver a controlled 

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1 We note “Rakin Mayo” is also referred to in the certified record as “Rakim 

Mayo.”

*

Former Justice specially assigned to the Superior Court.
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substance, one count of criminal conspiracy, one count of dealing in the 

proceeds of an unlawful activity, and one count of corrupt organizations.2 

On September 21, 2009, the trial court sentenced Appellant to an aggregate 

of ten years to twenty years in prison. The trial court set November 13, 

2008, as the commencement date for Appellant’s sentence. Appellant filed 

neither post-sentence motions nor a direct appeal. 

On February 14, 2015, Appellant filed a pro se document entitled 

“Petition for Credit for Time Spent in Custody.”3 Therein, Appellant averred 

that he was entitled to credit for time served commencing on February 28, 

2008. Without appointing counsel, the trial court denied Appellant’s petition 

by order filed on March 13, 2015. However, there is no corresponding 

docket entry indicating the parties received notice of the trial court’s order. 

Thereafter, for reasons not clear from the record, Appellant’s pro se

“Petition for Credit for Time Spent in Custody” was finally entered on the 

docket approximately one year later, on February 24, 2016. Apparently 

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2 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. §§ 903, 5111, and 911, 

respectively. 

3 Appellant’s pro se motion was time-stamped on February 19, 2015; 

however, the motion was not docketed at this time. Instead, the motion 

was docketed on February 24, 2016. In any event, the record suggests that 

Appellant handed his pro se motion to prison authorities on February 14, 

2015, and thus, pursuant to the prisoner mailbox rule, we shall deem the 

motion to have been filed on February 14, 2015. See Commonwealth v. 

Patterson, 931 A.2d 710 (Pa.Super. 2007) (discussing prisoner mailbox 

rule). 
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believing Appellant had filed a second petition,4the trial court set a hearing 

on the petition. 

On June 23, 2016, Appellant appeared at the hearing pro se and 

argued that he was entitled to credit commencing on February 27, 2008.5 

N.T., 6/23/2016, at 1. Specifically, Appellant argued that, with regard to the 

instant charges, he was detained at the Rikers Island Correctional Facility in 

New York from February 27, 2008, to November 13, 2008, awaiting 

extradition to Pennsylvania. Id. at 2. Therefore, he argued that he was 

entitled to additional credit for time served. 

By order and opinion entered on July 1, 2016, the trial court purported 

to grant, in part, Appellant’s petition. Specifically, the trial court concluded 

that, while Appellant was not entitled to credit for time served commencing 

on February 27, 2008, Appellant was entitled to credit for time served 

commencing on October 27, 2008. Thus, the trial court entered an order 

indicating Appellant was granted “an additional period of credit for time 

served from October 28, 2008[,] to November 13, 2008.” Trial Court’s 

Order, filed 7/1/16. Appellant filed a pro se notice of appeal within thirty 

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4 There is no evidence Appellant filed a second “Petition for Credit for Time 

Spent in Custody.” 

5 We acknowledge that Appellant’s petition sought credit commencing on 

February 28, 2008, while his argument at the hearing was that he should 

receive credit commencing on February 27, 2008. 
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days of the trial court’s July 1, 2016, order,6and the trial court granted 

Appellant permission to appeal in forma pauperis. The trial court did not 

order Appellant to file a Pa.R.A.P. 1925(b) statement, and therefore, no such 

statement was filed. 

Initially, we must address the procedural anomalies presented in this 

case as they pertain to our jurisdiction. As indicated supra, Appellant 

purports to appeal in the instant case from the trial court’s July 1, 2016, 

order. However, the record reveals that, in February of 2015, Appellant filed 

the instant pro se petition, which the trial court denied by order filed on 

March 13, 2015. Generally, Appellant would have been required to file a 

notice of appeal therefrom within thirty days after the entry of the order. 

See Pa.R.A.P. 903(a). Nevertheless, the docket entries do not indicate the 

date of service. See Pa.R.Crim.P. 114(C). Further, the certified record does 

not reveal whether the clerk of courts complied with Pa.R.Crim.P 114(B), as 

there is no evidence of the method of service. Simply put, there is no 

indication that Appellant received proper notice of the trial court’s March 13, 

2015, order. 

To further complicate matters, the record reveals that, although 

Appellant’s petition was promptly time stamped upon receipt by the clerk of 

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6 The notice of appeal contains a time stamp of August 1, 2016, and a time 

stamp of August 3, 2016. In any event, applying the prisoner mailbox rule, 

Appellant’s pro se appeal must have been handed to prison authorities on or 

before August 1, 2016. Patterson, supra. 
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courts on February 19, 2015, the clerk of courts did not docket the petition 

until more than one year later, on February 24, 2016.7 Thereafter, not 

recognizing the petition had previously been denied on March 13, 2015, the 

trial court scheduled a hearing on what it apparently perceived to be a 

“newly docketed” petition, and ultimately purported to grant, in part, 

Appellant relief on July 1, 2016. 

Although the trial court’s confusion is understandable, we conclude the 

trial court did not have jurisdiction when it entered its July 1, 2016, order. 

42 Pa.C.S.A. § 5505 provides that “[e]xcept 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...if no appeal from such order has 

been taken or allowed.” Here, the trial court denied Appellant’s petition on 

March 13, 2015, but then without explanation purported to grant, in part, 

the same petition on July 1, 2016. Thus, the July 1, 2016, order, is a legal 

nullity. Commonwealth v. Liebensperger, 904 A.2d 40, 44 (Pa.Super. 

2006) (“If a court does not modify an order within [30 days], the court loses 

the authority to do so.”) (citations omitted)).

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7 Moreover, the corresponding docket entry incorrectly indicates the 

document was time stamped on February 19, 2016, as opposed to February 

19, 2015. Thus, the clerk of courts did not correctly “time stamp [the 

petition] with the date of receipt and make a docket entry reflecting the date 

of receipt” as required by Pa.R.Crim.P. 576(A)(3). 
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As to Appellant’s failure to file a notice of appeal within thirty days of 

the trial court’s March 13, 2015, order, we decline to quash this appeal as 

untimely. While an appellate court may not enlarge the time for filing a 

notice of appeal, see Pa.R.A.P. 105(b), we may permit extensions of the 

filing period in extraordinary circumstances, such as fraud or some 

breakdown in the court’s operation. Commonwealth v. Braykovich, 664 

A.2d 133 (Pa.Super. 1995). Here, a “breakdown” occurred, primarily from 

the clerk of courts’ departure from its obligations under the Rules of Criminal 

Procedure. Accordingly, we decline to quash this appeal as untimely and 

proceed to a review of the merits of Appellant’s appeal.

After a careful review, we conclude the trial court should have treated 

Appellant’s “Petition for Credit for Time Spent in Custody” as a collateral 

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 

9541-9546. Under established Pennsylvania precedent, “the PCRA is 

intended to be the sole means of achieving post-conviction relief.” 

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (citations 

omitted). Thus, issues that are cognizable under the PCRA must be raised in 

a timely PCRA petition. See id.

A claim is cognizable under the PCRA if it challenges the petitioner’s 

conviction, sentence, or the effectiveness of counsel during the plea process, 

trial, appeal, or PCRA review. 42 Pa.C.S.A. § 9543. In the case sub judice, 

Appellant’s petition sought credit for the time spent in custody prior to 
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sentencing. This presents a challenge to the legality of sentencing, which is 

cognizable under the PCRA. Commonwealth v. Fowler, 930 A.2d 586, 

595 (Pa.Super. 2007) (“A challenge to the trial court’s failure to award credit 

for time spent in custody prior to sentencing involves the legality of 

sentence[.]”) (citation omitted)). Accordingly, the PCRA is the sole avenue 

for Appellant to gain relief. 8

With this in mind, we note that this is Appellant’s first PCRA petition, 

and the petition is facially untimely.9 Nevertheless, we must address 

whether counsel should have been appointed to assist Appellant, since the 

instant matter constituted his first PCRA petition. 

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8

 We note that “[o]ur standard of review of the denial of PCRA relief is 

clear; we are limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and 

quotation marks omitted).

9 The PCRA provides that a PCRA petition shall be filed within one year of the 

date the underlying judgment becomes final, which occurs “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 

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3). See 42 Pa.C.S.A. 

§ 9545(b)(1). Here, Appellant’s judgment of sentence became final on 

October 21, 2009, upon expiration of the time to file a direct appeal to this 

Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, Appellant 

had until approximately October 21, 2010, to file a timely PCRA petition. 

Appellant filed the instant petition on February 14, 2015, and therefore, it is 

patently untimely. Further, Appellant did not plead any of the exceptions set 

forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 
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An indigent defendant is entitled to appointment of counsel for his first 

PCRA petition. Commonwealth v. Smith, 572 Pa. 572, 818 A.2d 494 

(2003). This rule-based right to counsel persists throughout the PCRA 

proceedings, even if the petition is facially untimely or the petition does not 

present a colorable claim. See id. Additionally, it is the PCRA court’s 

responsibility “before [disposing] of a first [PCRA] petition...[to] first make a 

determination as to the petitioner’s indigence and if the petitioner is 

indigent, the court must appoint counsel.” Commonwealth v. Van Allen, 

597 A.2d 1237, 1239 (Pa.Super. 1991) (citation and emphasis omitted). 

Here, the record reveals that Appellant is indigent. However, the 

record further reveals that the trial court neither appointed counsel to assist 

Appellant for purposes of the PCRA nor conducted a colloquy to determine 

whether Appellant waived his right to counsel. Accordingly, we are 

constrained to vacate the lower court’s March 13, 2015, order on this basis 

and remand for further proceedings consistent with this decision. 

March 13, 2015, and July 1, 2016, Orders vacated; Case remanded; 

Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/14/2017