J-S02043-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRAHEEM BIVENS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1583 EDA 2020

Appeal from the Order Entered July 31, 2020

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0006525-2011

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: Filed: May 20, 2021

Appellant Braheem Bivens appeals pro se from the order denying his 

motion for modification of sentence nunc pro tunc. Appellant contends that 

he was deprived of the benefit of his plea bargain because the trial court stated 

that his sentence would begin running on a certain date. Appellant also alleges 

that his prior counsel was ineffective and that his sentence is illegal. For the 

reasons that follow, we affirm.

On March 6, 2012, Appellant entered a negotiated guilty plea to 

possession with intent to deliver cocaine. During its recitation of the terms of 

the plea, the Commonwealth stated that it understood that Appellant “wishes 

to report to commence his sentence next Tuesday . . . that being March 13, 

2012.” N.T., 3/6/12, at 5. During Appellant’s plea colloquy, he acknowledged

that he was on probation or parole for another case and discussed with counsel 

the possible consequences the instant conviction would have on the prior 
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case.

1

 See id. at 14. That same day, the trial court sentenced Appellant in 

accordance with the agreement to seven to fourteen years’ imprisonment. 

The sentencing order stated that Appellant would report for his sentence on 

March 13, 2012. The trial court also credited the time from March 28, 2011, 

to November 4, 2011. Appellant did not file a direct appeal.

On February 28, 2013, Appellant filed a timely, counseled, first Post 

Conviction Relief Act2 (PCRA) petition challenging the validity of his guilty plea. 

The PCRA court dismissed the petition on July 29, 2013, and on March 6, 2014, 

this Court affirmed. See Commonwealth v. Bivens, 2502 EDA 2013 (Pa. 

Super. filed Mar. 6, 2014) (unpublished mem.). 

On June 6, 2016, Appellant filed his second PCRA petition. The PCRA 

court issued notice of its intent to dismiss on October 20, 2016. See 

Pa.R.Crim.P. 907(1). The PCRA court dismissed the second PCRA petition on 

March 23, 2017, and Appellant did not appeal to this Court. 

Meanwhile, beginning in June of 2014, Appellant began raising claims 

for “time credit” and filed a motion alleging that he was not credited with the 

time from March 28, 2011, to November 4, 2011. He also requested that his 

sentence “run concurrent with any other sentence being served.” Mot. for 

Time Credit, 6/26/14. The trial court entered an order granting Appellant’s 

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1 The trial court stated that Appellant was previously paroled in a prior case in 

“docket no. 6443-2005.” Trial Ct. Op., 9/14/20, at 1. Based on Appellant’s 

instant conviction, it further appears that Appellant was recommitted to 

eighteen months’ backtime for the parole violation in his prior case.

2 42 Pa.C.S. §§ 9541-9546.
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motion, which the Department of Corrections refused to honor as an illegal 

sentence.

On July 13, 2017, Appellant filed a motion for credit for time served, 

which the trial court dismissed, explaining that it did not have jurisdiction to 

entertain the merits of the motion. See Trial Ct. Op., 9/14/20, at 5. Appellant 

subsequently filed two additional motions seeking to correct his sentence and 

to hold the Department of Corrections in contempt for miscalculating time 

served. The court denied both motions on January 1, 2018. Thereafter, 

Appellant sought relief in the Commonwealth Court, concerning his back time 

served. The Commonwealth Court denied Appellant’s motion on March 11, 

2020.3

On April 20, 2020, Appellant filed the instant pro se motion for 

modification of sentence nunc pro tunc. Following a hearing on July 21, 2020, 

the trial court denied Appellant’s motion. Appellant timely appealed. The trial 

court did not order Appellant to file a Pa.R.A.P. 1925(b) statement, but issued 

a Rule 1925(a) opinion addressing the claims raised in Appellant’s motion. 

See Pa.R.A.P. 1925(a).

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3 We note that the Commonwealth Court concluded that the trial court’s order 

granting Appellant’s June 26, 2014 motion for time credit was illegal because 

the trial court could not order Appellant’s instant sentence to run concurrently 

with Appellant’s backtime for his prior conviction. Notably, the 

Commonwealth Court added a footnote suggesting that Appellant “seek 

modification of his sentence nunc pro tunc before the trial court by asserting 

that he has not received the benefit of the negotiated guilty plea bargain that 

the court approved.” Bivens v. Pennsylvania Dep't of Corr., 192 M.D. 

2018, 2020 WL 1171089, at *3 n.1 (Pa. Cmwlth. filed Mar. 11, 2020) 

(unpublished mem.). 
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Appellant presents the following questions for review:

1. Did the trial court abuse its discretion in denying Appellant 

appropriate avenue for review to seek vacation/modification of 

his sentence nunc pro tunc before the trial court by asserting 

that he has not received the benefit of the negotiated guilty 

plea bargain that the court approved?

2. Whether Appellant’s plea of guilty was knowingly, voluntarily 

or intelligently made or rather induced as a result of threats, 

coercion and promises by the court.

3. Should Appellant be permitted to withdraw his plea or, in the 

alternative, vacate and modify from an illegal sentence 

pursuant to 61 Pa.C.S. § 6138(A)(5)(i) and 61 Pa.C.S. § 4503?

Appellant’s Brief at 4 (some formatting altered)

Appellant claims that because he did not receive the benefit of his plea 

agreement, his plea was unknowing and the court erred in refusing to allow 

him to withdraw his plea. Additionally, Appellant claims that his plea was 

unlawfully induced by the trial court and alleges the ineffectiveness of all prior 

counsel. In sum, Appellant contends that he is entitled to credit or to have 

his sentence restructured to conform to his belief that his sentence would 

commence as soon as he reported to prison. Alternatively, he claims that he 

is entitled to withdraw his plea. 

The Commonwealth contends that despite being titled as a motion to 

modify the sentence, Appellant’s motion was a PCRA petition because the 

PCRA subsumes all forms of collateral relief. See Commonwealth’s Brief at 7-

9. Further, the Commonwealth argues that Appellant is not entitled to review 
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of his claims because the petition is untimely on its face and Appellant does 

not establish any of the exceptions to the PCRA time bar. See id.

We first address whether Appellant’s claims must be raised within a 

PCRA petition. This issue raises a question of law for which our standard of 

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

v. Moore, --- A.3d ---, 14 EAP 2019, 2021 WL 1133063, at *2 (Pa. filed Mar. 

25, 2021); Commonwealth v. Montgomery, 181 A.3d 359, 367 (Pa. Super. 

2018) (en banc). 

“It is well settled that 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) (citing 42 Pa.C.S. § 9542). Claims that must be 

brought under the PCRA include a conviction or sentence that resulted from: 

(i) A violation of the Constitution of this Commonwealth or the 

Constitution or laws of the United States which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances 

of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could 

have taken place.

(iii) A plea of guilty unlawfully induced where the circumstances 

make it likely that the inducement caused the petitioner to plead 

guilty and the petitioner is innocent.

42 Pa.C.S. § 9543(a)(2)(i)-(iii). A claim that a sentence is illegal must also 

be brought under the PCRA. See Moore, 2021 WL 1133063, at *2. 
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If the PCRA applies, the petitioner must generally file a petition within 

one year of the date the judgment of sentence becomes final. See 42 Pa.C.S. 

§ 9545(b)(1). The timeliness requirements of the PCRA are jurisdictional in 

nature, and, thus, a PCRA court cannot hear untimely petitions. See 

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003). 

However, 42 Pa.C.S. § 9545(b) provides forth three statutory 

exceptions for reviewing a facially untimely PCRA petition:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this Commonwealth 

or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to 

the petitioner and could not have been ascertained by the exercise 

of due diligence; or

(iii) the right asserted is a constitutional right that was recognized 

by the Supreme Court of the United States or the Supreme Court 

of Pennsylvania after the time period provided in this section and 

has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). To invoke one of these exceptions, a 

petitioner must also file his petition within one year of the date the claim could 

have been presented. See 42 Pa.C.S. § 9545(b)(2) (as amended eff. Dec. 

24, 2018). It is the PCRA petitioner’s “burden to allege and prove that one of 

the timeliness exceptions applies.” Commonwealth v. Albrecht, 994 A.2d 

1091, 1094 (Pa. 2010) (citation and quotation marks omitted).

Instantly, to the extent Appellant’s motion implicated the ineffective 

assistance of his prior counsel and the withdrawal of an unlawfully induced 
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plea, such claims are cognizable under the PCRA. See 42 Pa.C.S. §

9543(a)(2)(i)-(iii); Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. 

Super. 2006). Appellant’s claims that his sentence is illegal are cognizable, 

as is his claim that the trial court erred in calculating the credit due for a 

sentence. See Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 

2007); see also Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. 

Super. 1989) (discussing challenges to sentencing credits). Because 

Appellant’s petition was facially untimely and Appellant neither pled nor 

proved a timeliness exception under the PCRA,4 he failed to meet the 

jurisdictional threshold for a court to consider the merits of these claims. See 

Robinson, 837 A.2d at 1161.

Appellant also claims that he was deprived of the benefit of his plea 

bargain. Generally, such claims fall outside the scope of the PCRA. See

Commonwealth v. Snook, 230 A.3d 438, 444 (Pa. Super. 2020) (noting that 

“a collateral petition to enforce a plea agreement is regularly treated as 

outside the ambit of the PCRA and under the contractual enforcement theory 

of specific performance” (citation omitted)); accord Perry, 563 A.2d at 512

(stating that if an alleged error concerns ambiguity in the trial court’s 

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4 Specifically, Appellant’s judgment of sentence became final on April 5, 2012, 

thirty days after the March 6, 2012 judgment of sentence. See 42 Pa.C.S. §

9545(b)(3). Appellant had one year from that date to file a timely PCRA 

petition. The instant motion, filed over seven years after his judgment of 

sentence became final, is facially untimely under the PCRA. 
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sentence, then a trial court may consider a petition for writ of habeas corpus

for “clarification and/or correction of the sentence imposed”). 

As our Supreme Court noted: 

[T]he convicted criminal is entitled to the benefit of his bargain 

through specific performance of the terms of the plea agreement. 

Thus, a court must determine whether an alleged term is part of 

the parties’ plea agreement. If the answer to that inquiry is 

affirmative, then the convicted criminal is entitled to specific 

performance of the term.” 

Commonwealth v. Martinez, 147 A.3d 517, 532-33 (Pa. 2016) (citations 

omitted). Our courts demand “strict compliance” with the Commonwealth’s 

duty to honor the terms of plea agreement “in order to avoid any possible 

perversion of the plea bargaining system.” Id. at 532. 

Here, we conclude that the trial court’s consideration of Appellant’s

motion as a nunc pro tunc post-sentence motion was improper. Nevertheless, 

the trial court retained jurisdiction to consider Appellant’s claims that he did 

not receive the benefit of his plea bargain outside of the framework the PCRA. 

See Snook, 230 A.3d at 444; Perry, 563 A.2d at 512. 

Critical to Appellant’s plea enforcement claim is the trial court’s 

statement that “[t]he possible consequences of Appellant’s violation of parole 

were not part of the negotiated plea agreement” in the instant case. See Trial 

Ct. Op. at 3; Martinez, 147 A.3d at 533. Specifically, the terms of the plea 

agreement were that Appellant would plead guilty to possession with the 

intent to deliver as an ungraded felony; the Commonwealth’s recommended 

sentence was seven to fourteen years, which is a non-mandatory sentence; 
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Appellant was to forfeit $13,778 and two cell phones; the Commonwealth was 

to dismiss the remaining charges; and Appellant “wishes to report to 

commence his sentence . . . March 13, 2013.” N.T., 3/6/12, at 4-5. There 

was no term in the plea agreement discussed at sentencing with respect to 

either credit for time served, or how this sentence would run with respect to 

the prior case. Thus, the sentence imposed by the court comported with the 

terms of the plea agreement and Appellant was not deprived of the benefit of 

the bargain. See Martinez, 147 A.3d at 533.

Therefore, we conclude that Appellant’s motion, which raised trial 

counsel’s ineffectiveness and the legality of his guilty plea, should have been 

treated as a PCRA petition. Further, because Appellant did not plead and 

prove an exception to the PCRA time bar, it was untimely. Finally, because 

Appellant was sentenced in accordance with the terms of the plea agreement, 

Appellant’s claim that he did not receive the benefit of his plea agreement 

lacks merit. Accordingly, we affirm the order of the PCRA court.5

Order affirmed.

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5 The PCRA court addressed the merits of Appellant’s petition. However, 

because the petition was untimely, it lacked the jurisdiction to do so. “[W]e 

may affirm the decision of the PCRA court if there is any basis on the record 

to support the PCRA court’s action; this is so even if we rely on a different 

basis in our decision to affirm.” Commonwealth v. Wiley, 966 A.2d 1153, 

1157 (Pa. Super. 2009) (citation omitted and some formatting altered).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/21