J-S64026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT 

OF PENNSYLVANIA

Appellee

v.

JAMES A. DAVIS,

Appellant No. 528 MDA 2017

Appeal from the PCRA Order February 27, 2017

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0001537-2015, CP-35-CR-0001543-

2015, CP-35-CR-0001890-2014, CP-35-CR-0002227-2015

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 22, 2017

Appellant, James A. Davis, pro se, has filed an appeal at four separate 

docket numbers: CP-35-CR-0001537-2015 (“15-CR-1537”), CP-35-CR0001543-2015 (“15-CR-1543”), CP-35-CR-0001890-2014 (“14-CR-1890”), 

and CP-35-CR-0002227-2015 (“15-CR-2227”).1 After careful review, we 

affirm in part, and vacate and remand in part.

The trial court summarized the procedural history of the case at docket 

number 14-CR-1890 as follows:

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1

In 14-CR-1890, Appellant appears to appeal from the order denying his 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-9546.
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On November 9, 2015, [Appellant] pled guilty in case no. 

14-CR-1890 to one count of conspiracy to commit theft, and in 

exchange the other charges pending against [Appellant] were 

nolle prossed. The charges arose on August 12, 2014, when 

[Appellant] and Joseph Carter stole 300 railroad plates from the 

Canadian Pacific Railroad. On February 3, 2016, [Appellant] was 

sentenced in case no. 14-CR-1890, and also in case nos. 15-CR1537, 1543 and 2227. He was sentenced in case no. 14-CR-1890 

to one year of special probation consecutive to the sentences 

imposed in the other three cases. 

On August 9, 2016, [Appellant] filed a Motion for Correction 

of Illegal Sentence and/or to Construe under the Post Conviction 

Relief Act in case no. 14-CR-1890 which this court deemed a 

Petition for Post Conviction Relief. Kurt Lynott, Esq. was 

appointed to represent [Appellant]. On September 23, 2016, the 

Commonwealth filed an Answer and Motion to Dismiss. On 

December 29, 2016, Mr. Lynott filed a Motion to Withdraw as 

Counsel Pursuant to a Turner-Finley[2] Letter. 

Memorandum and Notice of Intent to Dismiss, 1/31/17, at 1-2.

On January 6, 2017, the PCRA court granted Mr. Lynott’s motion to 

withdraw. On January 24, 2017, Appellant filed a pro se pleading titled, “Pro 

Se Objection to Notice of Intent to Dismiss” at all four docket numbers. In 

this filing, Appellant presented multiple challenges to his sentences at all four 

docket numbers and requested a hearing on the matters. Pro Se Objection to 

Notice of Intent to Dismiss, 1/24/17, at 1. 

On January 31, 2017, the PCRA court issued a Memorandum and Notice 

of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907 to the PCRA petition filed in 

____________________________________________

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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14-CR-1890. Appellant filed an objection on February 15, 2017.3 Objection 

to Notice of Intent to Dismiss, 2/15/17, 1-4. The PCRA court dismissed 

Appellant’s petition on February 27, 2017. Order and Notice of Right to 

Appeal, 2/27/17, at 1. Appellant filed a notice of appeal on March 22, 2017, 

at all four docket numbers. Notice of Appeal, 3/22/17, at 1. The notice of 

appeal provides, verbatim, as follows:

Notice is hereby given to the herein Court, that Petitioner, 

James Davis - ,,pro-se named in the above capitation is appealing 

the lower court’s decision in this matter,to the Superior Courrt, 

where petitioner was not granted relief on any of his constitutional 

claims,under Pennsylvania Rules of Criminal Procedure.

Notice of Appeal, 3/22/17, at 1. Appellant and the trial court complied with 

Pa.R.A.P. 1925. 

Appellant presents the following issues for our review, which we have 

reproduced verbatim:

1. Whether the Judge erred when he imposed sentence’s with 

reguard to 2nd, 3rd, 4th DUI without a Drug/Alcohol Assessment 

that is a maditory component prior to sentencing pursuant to 75, 

PA. C.S. §3814 and ordering this Assessment Post-Sentence.

2. Whether the Judge erred when he imposed an Illegal sentence on 

Retail Theft (S).

3. Whether the Judge erred when he signed multiple backdated 

orders that contradict the first orders, stating on February 3rd, 

2016, is when the sentences were imposed, constituting fraud and 

perjury.

____________________________________________

3 Appellant’s objection filed February 15, 2017, apparently in response to the 

PCRA court’s January 31, 2017 notice of intent to dismiss, also included all 

four docket numbers.
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4. Whether the Court lacked jurisdiction over the sentence of 

Criminal Conspiracy to Commit Theft, to alter/modify the sentence 

long after the 30-days allowed pursuant to 42 PA. C.S.A. § 5505.

5. Whether the judge erred when he Altered/Modified the sentence 

of Criminal Conspiracy to Commit Theft after 30-days, by 

changing a concurrent sentence to a consecutive sentence 

increasing defendants punishment on this charge in violation of 

the Double Jeopardy Clause.

6. Whether the court violated the defendants Constitutional Rights 

by not holding a direct proceeding with the defendant present to 

modify the order, and failing to state on the record it’s reasons for 

the increased punishment pursuant to PA. R. CRIM. P. 704 (c) (2).

7. Whether the Court acted with Prejudice and abused it’s discretion 

by violating the law pertaining to an illegal modification of a 

sentence, violating Procedural and Substantive Due Process and 

Double Jeopardy protections.

8. Whether all Counsel of record were Constitutionally ineffective, 

based on record claims.

Suggested Answer for all issues: Yes

Is Appellant’s appeal frivolous?

Appellant’s Brief at 5-6. 

Before addressing Appellant’s issues, we must determine whether the 

appeals at all four docket numbers are properly before us. As noted, Appellant 

was sentenced at all four above-referenced docket numbers on February 3, 

2016. Appellant did not file a timely direct appeal from any of those 

sentences. Appellant had filed, however, a petition that the court of common 

pleas deemed a PCRA petition on August 9, 2016, at docket number 14-CR1890 only. Furthermore, Appellant filed a notice of appeal on March 22, 2017,
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as to all four docket numbers. Because docket number 14-CR-1890 has a 

different procedural posture, we address that docket separately.4

Docket Number 14-CR-1890

The record reflects that on August 9, 2016, Appellant filed a pleading in 

docket number 14-CR-1890, which the court of common pleas treated as a 

PCRA petition. PCRA Petition, 8/9/16, at 1-2. As noted above, counsel was 

appointed and was later permitted to withdraw on January 6, 2017. On 

January 31, 2017, the PCRA court issued a Memorandum and Notice of Intent 

to Dismiss Pursuant to Pa.R.Crim.P. 907, and Appellant filed an objection on 

February 15, 2017. The PCRA petition was ultimately dismissed on February 

27, 2017, and Appellant filed a timely appeal in this docket on March 22, 

2017.

5

 

A review of the issues raised on appeal by Appellant reflects that only 

issues three through eight pertain to docket number 14-CR-1890. Thus, we 

will address those claims here. 

____________________________________________

4 We note that this appeal consists of four separate docket numbers and 

related certified records. There is no indication in the record that these cases 

were consolidated for purposes of this appeal.

5 Appellant’s notice of appeal did not identify the order from which the appeal 

is taken. However, given the timeline, we conclude that the appeal was from 

the order denying his PCRA petition. See Commonwealth v. Williams, 106 

A.3d 583, 587 (Pa. 2014) (“A timely notice of appeal triggers the jurisdiction 

of the appellate court, notwithstanding whether the notice of appeal is 

otherwise defective.”); see also Pa.R.A.P. 902 (holding that “[f]ailure of an 

appellant to take any step other than the timely filing of a notice of appeal 

does not affect the validity of the appeal”).
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In his third issue, Appellant maintains that the trial judge erred when 

he “signed multiple backdated Orders that contradict the first orders, stating 

on February 3rd, 2016 is when the sentences were imposed, constituting fraud 

and perjury.” Appellant’s Brief at 17-18. In support of this claim, Appellant 

makes the following argument:

Judge Geroulo signed the Written Sentencing Orders and the 

original Sentencing Orders which correspond with eachother [sic] 

and were certified from the record on April 7th,2016 [sic] along 

with the Court Commitment Orders. He then signed the Corrected 

Sentencing Orders between April 7th and April 15th, 2016[,] stating 

that on February 3rd, 2016 is when he imposed the sentences 

which constitutes perjury. He knowingly signed new orders 

between the 7th and 15th of April that were untrue. A person who 

swearing under oath or affirmation to what is untrue constitutes 

perjury. The court used administrative back channels to change 

these sentencing orders and committed fraud by certifying these 

fraudulent documents.

Appellant’s Brief at 18. Attached to Appellant’s Brief is an Order from the 

Court of Common Pleas of Lackawanna County, dated February 3, 2016. 

Appellant’s Brief at 34. On the bottom of this order is a stamp that reflects 

“Certified from the Record April 7, 2016.” Id. That order states that Appellant 

was sentenced to confinement for a minimum period of 90 days and a 

maximum of 5 years. Id. Also attached to Appellant’s Brief, is an order with 

“Corrected” hand-written above the heading “Order”, also dated February 3, 

2016. Appellant’s Brief at 45. However, this order indicates that Appellant 

was sentenced to one year of probation, with special conditions, and includes 

a stamp reflecting the following: “Certified from the Record April 18, 2016.” 

Id. 
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“[F]or a trial court to exercise its inherent authority and enter an order 

correcting a defendant’s written sentence to conform with the terms of the 

sentencing hearing, the trial court’s intention to impose a certain sentence 

must be obvious on the face of the sentencing transcript.” Commonwealth 

v. Borrin, 12 A.3d 466, 473 (Pa. Super. 2011). “If, on the other hand, a trial 

court’s stated intentions during the sentencing hearing are ambiguous, then 

the terms of the sentence in the sentencing order control, and the trial court 

cannot correct its perceived mistake.” Id.

“It is well-settled in Pennsylvania that a trial court has the inherent, 

common-law authority to correct ‘clear clerical errors’ in its orders. A trial 

court maintains this authority even after the expiration of the 30 day time 

limitation set forth in 42 Pa.C.S.A. § 5505 for the modification of orders.

Borrin, 12 A.3d at 471 (internal citations omitted).

Here, the certified record reflects that at the February 3, 2016 

sentencing hearing Appellant was sentenced for criminal conspiracy to commit 

theft at docket number 14-CR-1890 to special probation for a period of one 

year, to “be consecutive to the sentences imposed on the 3 DUI’s” at the other 

docket numbers. N.T., 2/3/16, at 7. The court’s imposition of this sentence

was obvious on the face of the transcript. Id. Moreover, the certified record 
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includes a sentencing order, docketed February 3, 2016, reflecting this 

sentence. Order, 2/3/16, at 1.6 

Thus, there is no indication in the certified record that the sentence 

imposed for criminal conspiracy to commit theft was subsequently changed. 

Additionally, in addressing this claim as raised in Appellant’s PCRA petition, 

the PCRA court provided the following explanation:

[Appellant] alleges that on February 3, 2016, the court imposed a 

sentence in this case of 90 days to 5 years with the DUI 

convictions, but then changed this sentence to a one year of 

probation sentence in April 2016. As Mr. Lynott states in his 

Turney-Finley letter, this assertion is incorrect. On February 3, 

2016, [Appellant] was sentenced in this case to one year of special 

probation consecutive to the sentences imposed in the other three 

cases. Transcript of February 3, 2016 Sentencing at 7. The April 

18, 2016 Commitment Order also state[s] that the sentence is one 

year of special probation consecutive to the sentences in his other 

cases. Thus, contrary to his assertions, this court did not amend 

his sentence.

Memorandum and Notice of Intent to Dismiss, 1/31/17, at 2-3. To the extent 

that any order was issued contrary to that sentence, as suggested by the order 

attached to Appellant’s Brief, such would constitute a “clear clerical error” that 

____________________________________________

6 We note that this order indicates that it is a “Corrected Order”, but there is 

no previous sentencing order included in the certified record. Order, 2/3/16, 

at 1. The order attached to Appellant’s Brief that indicates he was sentenced 

to confinement for a minimum period of 90 days and a maximum of 5 years, 

is not included in the certified record. “[A]n appellate court is limited to 

considering only the materials in the certified record when resolving an issue.” 

Commonwealth v. McBride, 957 A.2d 752, 757 (Pa. Super. 2008). 

“Materials that have only been included in briefs, but are not part of the record 

cannot be considered.” Id. at 757-758. 
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the trial court has authority to correct at any time. Borrin, 12 A.3d at 471. 

Thus, we conclude that Appellant’s claim lacks merit.

In his fourth, fifth, sixth, and seventh issues, Appellant asserts that the 

trial court erred, abused its discretion and violated his constitutional rights by 

modifying his sentence at this docket number. Appellant’s Brief at 18-22. 

Because we have concluded that Appellant’s sentence at this docket number 

had not been modified, these claims lack merit.

Finally, Appellant argues that trial and PCRA counsel were 

“constitutionally ineffective.” Appellant’s Brief at 6, 22-23. Appellant asserts 

that trial counsel was ineffective for not advising the court that Appellant had 

a drug problem, for advising Appellant to plead guilty despite a Pa.R.Crim.P. 

600 violation, and for failing to discover the above-referenced errors. Id. at 

22-23. Furthermore, Appellant alleges that PCRA counsel was ineffective for 

failing to raise trial counsel’s ineffectiveness. Id. at 23. 

A review of Appellant’s PCRA petition reflects that Appellant did not raise 

claims of ineffective assistance in his PCRA petition. “[I]ssues not raised in a 

PCRA petition cannot be considered on appeal.” Commonwealth v. Lauro, 

819 A.2d 100, 103 (Pa. Super. 2003). Accordingly, these claims are not 

preserved for our review. 

Remaining Docket Numbers: 15-CR-1537, 15-CR-1543,

and 15-CR-2227
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Arguably, the notices of appeal as to the remaining docket numbers are

untimely. As noted, the notice of appeal filed in all four docket numbers was 

vague and did not identify the order from which the appeal was taken.

Because the only orders entered in these three docket numbers were 

sentencing orders, we conclude that in those cases, Appellant was appealing 

the judgments of sentences.7 Because Appellant was sentenced on February 

3, 2016, and he did not file his notice of appeal until March 22, 2017, these 

direct appeals were untimely. See Pa.R.A.P. 903 (A notice of appeal must be 

filed within thirty days after the entry of the order from which the appeal is 

taken). 

Review of the records in this case, however, reflects that on January 24, 

2017, Appellant filed a pro se pleading titled, “Pro Se Objection to Notice of 

Intent to Dismiss” at all four docket numbers. This filing provides as follows:

Objection to Notice of Intent to Dismiss

1. The court lacked jurisdiction over the sentence of Criminal 

Conspiracy CR-1890-2014 to modify the sentence after 30 

days. The sentence was 90 – Days to 5 years concurrent with 

3 counts of DUI, to a new sentence of 1 year special probation.

____________________________________________

7 We do not quash Appellant’s appeals at the remaining three docket numbers

on the basis of his failure to comply with Pa.R.A.P. 904, which outlines the 

elements to be included in the notice of appeal, but rather on the basis that 

they are untimely. Williams, 106 A.3d at 587 (“A timely notice of appeal 

triggers the jurisdiction of the appellate court, notwithstanding whether the 

notice of appeal is otherwise defective.”); see also Pa.R.A.P. 902 (holding 

that “[f]ailure of an appellant to take any step other than the timely filing of 

a notice of appeal does not affect the validity of the appeal”).
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2. The court only had jurisdiction over the illegal sentence on CR2227-2015 ct./2 Retail Theft. The original sentence of 1 year 

probation exceed the guidelines, therefore the court only had 

jurisdiction to correct that sentence which was corrected for 

45-90 days concurrent to 3 counts of DUI.

3. The [Appellant’s] presence at sentencing is a deeply rooted 

procedural protection and the sentence was changed after the 

30 days allowed without [Appellant] being present.

4. The court modified the sentence of Criminal Conspiracy which 

increased [Appellant’s] punishment therefore it is double 

jeopardy.

5. In reguards [sic] to CR1537-2015 (DUI) CR-1543-2015 (DUI) 

and CR-2227 ct/1 2015 (DUI) the sentences were ran [sic] 

concurrent. The PENNDOT records indicate the driver’s license 

suspension penelties [sic] were ran [sic] consecutive not 

concurrent.

I Ask that the court grant a hearing on the above mentioned 

matters.

Objection to Notice of Intent to Dismiss, 1/24/17, at 1. 

This Court has established that an untimely post-sentence motion may 

be considered a petition for relief under the PCRA regardless of how the 

petition is titled. Commonwealth v. Evans, 866 A.2d 442, 443–444 (Pa. 

Super. 2005) (citation omitted). As the PCRA is the sole means for obtaining 

collateral review and relief, this Court has provided that “any collateral petition 

raising issues with respect to remedies offered under the PCRA will be 

considered a PCRA petition.” Commonwealth v. Deaner, 779 A.2d 578, 580 

(Pa. Super. 2001); 42 Pa.C.S. § 9542. 

Although a petition seeks an available remedy under the PCRA, the

petition must also meet the PCRA’s timeliness requirements which are 
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“jurisdictional in nature and must be strictly construed.” Commonwealth v. 

Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011) (citations omitted). Our 

“courts may not address the merits of the issues raised in a [PCRA] petition if 

it is not timely filed.” Id. 

As outlined, in his January 24, 2017 filing, Appellant presented multiple 

challenges to his sentences at all four docket numbers, and requested a 

hearing on the matters. Pro Se Objection to Notice of Intent to Dismiss, 

1/24/17, at 1. These challenges included claims of the trial court’s lack of 

jurisdiction and illegal sentences, which are cognizable under the PCRA. See

42 Pa.C.S. § 9543(a)(2)(viii) (the eligibility criteria in Section 9543 of the 

PCRA include claims asserting that the proceeding was held in a tribunal 

without jurisdiction); see also Commonwealth v. Hughes, 865 A.2d 761,

776 (Pa. 2004) (petitioner’s challenge to criminal court’s refusal to transfer 

murder case to juvenile court was facially cognizable under the PCRA as the 

propriety of whether the charges should be prosecuted in the juvenile court 

or adult court system implicated jurisdictional concerns); 42 Pa.C.S. § 9542

(“The PCRA specifically ‘provides for an action by which ... persons serving 

illegal sentences may obtain collateral relief.’”).

Moreover, this document was filed one week prior to the filing of the 

PCRA court’s notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 in docket 

number 14-CR-1890, and therefore cannot be deemed a response to the PCRA 

court’s notice of intent to dismiss in that docket. Thus, this pleading should 
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have been interpreted as an amended PCRA petition as to docket number 14-

CR-1890,

8 and a first PCRA petition at the remaining three dockets. 

Furthermore, we need not discuss whether Appellant’s petition was 

timely because Appellant was never appointed counsel to assist him with the 

preparation of his first PCRA petition in these three docket numbers. This 

Court has held that an indigent petitioner filing his first PCRA petition may not 

be denied PCRA relief unless the petitioner was afforded the assistance of 

counsel. See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.

2011) (stating that “where an indigent, first-time PCRA petitioner was denied 

his right to counsel—or failed to properly waive that right—this Court is 

required to raise this error sua sponte and remand for the PCRA court to 

correct that mistake.”). Thus, because this filing constitutes a first PCRA 

petition at these docket numbers, Appellant was entitled to counsel. 

Accordingly, we remand this matter for appointment of counsel regarding the 

filing of the first PCRA petition at docket numbers 15-CR-1537, 15-CR-1543, 

and 15-CR-2227. 

Order at docket number 14-CR-1890 affirmed. Orders at docket 

numbers 15-CR-1537, 15-CR-1543, and 15-CR-2227 vacated and case 

____________________________________________

8 With regard to an amended PCRA petition at docket number 14-CR-1890, 

Appellant does not raise any new issues and had the benefit of counsel in filing 

his first PCRA in that case.
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remanded for proceedings consistent with this Memorandum. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2017