J-S36035-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

MICHAEL JOSEPH EVANICSKO,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Nos. 2020 WDA 2014

Appeal from the PCRA Order Entered November 10, 2014,

in the Court of Common Pleas of Somerset County,

Criminal Division, at No(s): CP-56-CR-0000792-2012 

BEFORE: PANELLA, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 17, 2015

Michael Joseph Evanicsko (Appellant) appeals from an order which 

denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. We vacate the order and remand for proceedings 

consistent with this Memorandum.

The background underlying this matter can be summarized as follows. 

On February 12, 2013, [Appellant] entered a counseled 

guilty plea to one count of criminal attempt to acquire or obtain 

substances by fraud, 35 P.S. [§] 780-113(a)(12), a felony. [The 

trial court] ordered a modified presentence investigation[.]... 

[Appellant] was ultimately sentenced by video on May 31, 2013 

to not less than four nor more than eight years in a State 

Correctional Institution. [The court’s] order further provided 

that this sentence was to be served concurrently with another 

sentence [Appellant] was then serving and granted 289 days 

credit for time served. No direct appeal was filed.... 
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PCRA Court Opinion, 11/10/2014, at 1-2 (unnecessary capitalization 

omitted).

On February 25, 2014, Appellant pro se timely filed a PCRA petition, 

and the PCRA court appointed counsel to represent Appellant. However, 

Appellant retained Michael F. Walthier, Esq. (PCRA counsel) to represent 

him, and PCRA counsel entered his appearance on behalf of Appellant.

On May 28, 2014, the PCRA court held a hearing on the matter. No 

evidence was received at the hearing. Rather, PCRA counsel informed the 

court of the issues he believed to be pertinent. According to counsel, there 

were two possible issues in the case. PCRA counsel stated that “one issue is 

whether or not [plea] counsel gave [Appellant] erroneous advice about the 

[offense gravity score (OGS)], and whether that erroneous advice would 

invalidate his guilty plea.” N.T., 5/28/2014, at 4-5. As to the other issue, 

counsel asserted that the district attorney present at Appellant’s guilty plea 

and sentencing hearings previously had represented Appellant as defense 

counsel in criminal matters. Appellant maintained that such a situation 

constituted a conflict of interest, requiring the district attorney to recuse 

herself. Both of these issues, at least arguably, were raised in Appellant’s 

pro se PCRA petition. The PCRA court granted PCRA counsel’s request for 

additional time to file an amended PCRA petition.

The certified record does not contain an amended PCRA petition. 

Moreover, the PCRA court’s docket does not reflect that Appellant filed an 
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amended PCRA petition. Nonetheless, on August 7, 2014, the PCRA court 

entered an order scheduling a hearing for September 19, 2014, on an 

amended PCRA petition. 

Prior to that hearing, Appellant filed a document entitled “Addendum 

to Amended PCRA Petition.” Therein, Appellant noted that he filed his 

Amended PCRA petition on June 30, 2014, and asked the PCRA court to 

consider two additional issues. First, Appellant contended that his sentence 

is illegal. In this regard, Appellant highlighted that, when the court 

sentenced him, he was serving a sentence based upon the revocation of 

parole. According to Appellant, 

[b]ecause [Appellant] was then-serving a sentence resulting 

from the revocation of parole, the Pennsylvania Department of 

Corrections has subsequently refused to honor [the sentencing 

court’s] order, citing 61 Pa.C.S.A. § 6138(a)(5), which requires 

that any new sentence be served consecutive to the parole 

revocation sentence. Moreover, because [Appellant] was thenserving a parole revocation sentence, he did not receive the 

credit for time served as ordered by the [c]ourt.

Addendum to Amended PCRA Petition, 9/10/2014, at 2. Regarding the 

second issue raised in the addendum, Appellant asserted that plea “counsel 

was ineffective for failing to raise a claim regarding the validity and 

enforceability of the terms of the sentence imposed by the [c]ourt.” Id. at 

3. 

The PCRA court did not receive any evidence at the September 19,

2014, hearing. Instead, PCRA counsel asserted that four issues were before 
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the court. N.T., 9/19/2014, at 2. The parties discussed at length 

Appellant’s sentencing issue, id. at 4-10, and PCRA counsel made passing 

reference to his belief that plea counsel should have caught the sentencing 

issue. Id. at 10. PCRA counsel also addressed a claim that Appellant 

involuntarily entered his guilty plea, essentially because the factual basis for 

the charge against Appellant was stated inadequately on the record. Id. at 

10-11. Lastly, PCRA counsel briefly mentioned Appellant’s conflict-ofinterest claim regarding the district attorney. Id. at 12-14.

On November 10, 2014, the PCRA court denied Appellant’s petition. 

Appellant timely filed a notice of appeal. On December 8, 2014, the PCRA 

court directed Appellant to comply with Pa.R.A.P. 1925(b) within 21 days of 

the court’s order. On January 2, 2015, Appellant filed a motion in which he 

requested an extension of time to file a 1925(b) statement. According to

PCRA counsel, the court’s prothonotary mailed a copy of the 1925(b) order 

to counsel’s previous address, and counsel did not receive the order by 

forwarded mail until January 2, 2014. The PCRA court granted that motion 

on January 6, 2015, giving Appellant until January 16, 2015 to file a 1925(b) 

statement. Appellant timely filed a 1925(b) statement, and the PCRA court 

subsequently issued an opinion pursuant to Pa.R.A.P. 1925(a). 

In his brief to this Court, Appellant asks us to consider the questions 

that follow.
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1. Whether the plea colloquy was constitutionally deficient 

because the record lacked an adequate factual basis?

2. Whether the plea colloquy was constitutionally deficient 

because the court failed to advise [] Appellant that he faced a 

mandatory consecutive term of imprisonment?

3. Whether the sentence imposed was illegal because it called 

for a concurrent term of imprisonment contrary to 61 Pa.C.S.A. 

§ 6138 (the “Parole Act”)?

4. Whether the District Attorney for Somerset County was 

legally or ethically prohibited from participating in Appellant’s 

case in a prosecutorial capacity because she had previously 

served as his defense counsel in other cases?

5. Whether plea/sentencing counsel was ineffective as 

evidenced by his failure to object or file appropriate postsentence motions or appeals regarding the deficiencies in the 

plea colloquy, the illegal sentence imposed by the court, and/or 

the District Attorney’s conflict of interest?

Appellant’s Brief at 4 (PCRA court’s and suggested answers omitted).

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the court’s rulings are supported by the evidence of 

record and free of legal error. Commonwealth v. Anderson, 995 A.2d 

1184, 1189 (Pa. Super. 2010).

As an initial matter, Appellant’s brief fails to indicate where in the 

record he preserved his multiple issues, in violation of Pa.R.A.P. 2117(c) and 

2119(e). These violations are significant because, while Appellant may have 

presented the PCRA court with an amended PCRA petition, the certified 

record and the PCRA court’s docket demonstrate that he did not file of 

record an amended PCRA petition. “Our law is unequivocal that the 
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responsibility rests upon the appellant to ensure that the record certified on 

appeal is complete in the sense that it contains all of the materials necessary 

for the reviewing court to perform its duty.” Commonwealth v. 

Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006). Moreover, 

[a]n appellate court is limited to considering only the materials 

in the certified record when resolving an issue. In this regard, 

our law is the same in both the civil and criminal context 

because, under the Pennsylvania Rules of Appellate Procedure, 

any document which is not part of the officially certified record is 

deemed non-existent—a deficiency which cannot be remedied 

merely by including copies of the missing documents in a brief or 

in the reproduced record.

Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (citation 

omitted). With these principles in mind, we will address Appellant’s issues.

Under his first two issues, Appellant argues that his guilty plea was 

involuntary because the factual basis offered during the plea colloquy was 

insufficient and because he was not informed that a direct consequence of 

his guilty plea included a mandatory consecutive term of imprisonment. 

Under his fourth issue, Appellant reasserts his claim that the district attorney 

should have recused herself from Appellant’s plea and sentencing hearings 

due to a conflict of interest. Assuming arguendo that Appellant raised these 

issues in the PCRA court, they still are waived.

For purposes of the PCRA, “an issue is waived if the petitioner could 

have raised it but failed to do so before trial, at trial, during unitary review, 

on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. 
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§ 9544(b). Appellant could have raised his challenge to the voluntariness of 

his guilty plea in a post-sentence motion to withdraw his plea. See, e.g.,

Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002) 

(observing that a defendant can challenge the voluntariness of his guilty plea 

in a post-sentence motion to withdraw a guilty plea). In addition, to the 

extent that the district attorney’s presence at the plea and sentencing 

hearings created a conflict of interest, the conflict existed at the plea and 

sentencing hearings and could have been raised then. Consequently, 

Appellant waived these issues for purposes of the PCRA. 

We now consider Appellant’s fifth issue. Under this issue, Appellant 

presents four claims of ineffective assistance of counsel. First, he argues 

that plea counsel was ineffective for failing to file a motion to withdraw his 

guilty plea due to the lack of an adequately-stated factual basis for his 

charges during the plea colloquy. Secondly, he maintains that plea counsel 

was ineffective for failing to file the same motion because, during the plea 

colloquy, Appellant was not informed that he would receive a consecutive 

sentence since he already was serving a sentence based upon a revocation 

of parole. Next, Appellant essentially claims that plea counsel was 

ineffective for failing to object to the previously-discussed illegality of his 

sentence. Lastly, Appellant contends that plea counsel was ineffective for 

failing to object to the district attorney’s participation in his plea and 

sentencing hearings based upon her alleged conflict of interest.
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“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302(a). Based upon the record 

before us, we conclude that Appellant raised in the PCRA court only one of 

the claims of ineffective assistance of counsel he presents in his appellate 

brief. Specifically, in his “Addendum to Amended PCRA Petition,” Appellant 

contended that plea counsel was ineffective for failing to object to the 

illegality of his sentence. Appellant has waived the claims that he failed to 

raise in the PCRA court.

Concerning the claim that Appellant did preserve for our review, we 

need not analyze it under the rubric of a claim of ineffective assistance of 

counsel, as Appellant presents the underlying illegal-sentence claim under 

his third issue; such an issue is cognizable under the PCRA; and such an 

issue is reviewable even if Appellant would not have raised it in the PCRA 

court. See, e.g., Commonwealth v. Davis, 760 A.2d 406, 409 (Pa. Super. 

2000) (finding Davis’ challenges to the legality of sentence to be cognizable 

under the PCRA and noting that such challenges cannot be waived). 

Appellant’s challenge to the legality of his sentence is based upon the 

following statutory language found at 61 Pa.C.S. § 6138.1

 

1 To the extent that we must interpret section 6138 in order to resolve this 

issue, we are guided by the following principles of law.

Statutory interpretation implicates a question of law. Thus, our 

scope of review is plenary, and our standard of review is de 

novo. 
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(a) Convicted violators.--

(1) A parolee under the jurisdiction of the board released from a 

correctional facility who, during the period of parole or while 

delinquent on parole, commits a crime punishable by 

imprisonment, for which the parolee is convicted or found guilty 

by a judge or jury or to which the parolee pleads guilty or nolo 

contendere at any time thereafter in a court of record, may at 

the discretion of the board be recommitted as a parole violator.

***

(5) If a new sentence is imposed on the parolee, the service of 

the balance of the term originally imposed by a Pennsylvania 

court shall precede the commencement of the new term imposed 

in the following cases: 

(i) If a person is paroled from a State correctional 

institution and the new sentence imposed on the person is 

to be served in the State correctional institution. 

61 Pa.C.S. § 6138. 

Thus, pursuant to the clear and unambiguous language of this statute, 

if a parolee receives a new sentence, then the parolee must serve his or her 

original sentence before beginning to serve his or her new sentence, when, 

inter alia, the parolee was paroled from a state correctional institution and 

 

Pennsylvania’s Statutory Construction Act informs our 

analysis, establishing, “The object of all interpretation and 

construction is to ascertain and effectuate the intention of the 

General Assembly.” 1 Pa.C.S.A. § 1921(a). “When the words of 

a statute are clear and free from all ambiguity, the letter of it is 

not to be disregarded under the pretext of pursuing its spirit.” 1 

Pa.C.S.A. § 1921(b)....

Commonwealth v. Van Aulen, 952 A.2d 1183, 1184-85 (Pa. Super. 2008) 

(some citations omitted).
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the new sentence imposed on the parolee is to be served in the state 

correctional institution. 

Here, the record establishes the following. At his guilty plea colloquy, 

Appellant stated that he currently was serving a sentence at S.C.I. Cresson. 

N.T., 2/12/2013, at 6. At his sentencing hearing, the court sentenced 

Appellant to 4 to 8 years in prison, to be served at a state correctional 

institution. N.T., 5/31/2013, at 6. The court also ordered that this sentence 

was to be served concurrently to the sentence Appellant was then serving. 

Id. The court further noted that Appellant was being supervised by the 

State Board of Probation and Parole when he committed the offense to which 

he pled guilty. 

In its Pa.R.A.P. 1925(a) opinion, the PCRA court acknowledged that 

Appellant “was serving a state parole revocation sentence at the time” he 

received his new sentence. PCRA Court Opinion, 2/4/2015, at 2. The court 

also determined that, due to Appellant’s circumstances, it was bound to 

follow 61 Pa.C.S. § 6138. Id. The court then concluded, 

At the time of sentencing, despite the fact that [the court] had a 

Pre-Sentence Investigation Report prepared by the Adult 

Probation Department, [the court] missed the fact that 

[Appellant] was on State Parole and, as a result, failed to order 

the sentence to run consecutively with the revocation back-time 

[Appellant] was then serving.

Id. 
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The court, however, ultimately rejected Appellant’s claim that his 

sentence is illegal. The court seemed to believe that, because 61 Pa.C.S. 

§ 6138 mandates that Appellant serve his new sentence consecutively to his 

original sentence, the court’s stated desire for the sentences to run 

concurrently is of no significance. We are unconvinced by the court’s 

reasoning. 

Pursuant to the clear and unambiguous language of 61 Pa.C.S. 

§ 6138(a)(5)(i), if Appellant was paroled from a state correction institution 

and his new sentence must be served in a state correctional institution, then 

Appellant must serve the entirety of his original sentence before he can 

begin serving his new sentence. Stated somewhat differently, if Appellant 

was paroled from a state correction institution and his new sentence must be 

served in a state correctional institution, then the portion of his new 

sentence requiring him to serve his new sentence concurrently with his state 

parole sentence is illegal.2 The certified record strongly suggests that 

 

2 According to Appellant’s “Addendum to Amended PCRA Petition,” the 

Department of Corrections refused to “honor [the trial court’s] sentencing 

order, citing 61 Pa.C.S.A. § 6138(a)(5), which requires that any new 

sentence be served consecutive to the parole revocation sentence.” 

Addendum to Amended PCRA Petition, 9/10/2014, at 2 (footnote omitted). 

We observe that, in Fajohn v. Department of Corrections, 692 A.2d 1067 

(Pa. 1997), “the Supreme Court held that the Department [of Corrections] 

cannot be compelled by a writ of mandamus to enforce an illegal sentencing 

order.” Sturgis v. Doe, 26 A.3d 1221, 1224 (Pa. Commw. 2011). “In 

accordance with Fajohn, [the Commonwealth Court] has repeatedly and 

consistently held that mandamus is not available to compel the Department 

to enforce an illegal sentencing order.” Id.
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Appellant was serving a sentence stemming from the revocation of state 

parole when he received his new sentence; however, the record is not 

definite on this point. Consequently, we vacate the PCRA court’s order. We 

remand the matter for the court to make a determination of this fact. If 

indeed Appellant was serving a term of incarceration stemming from the 

revocation of state parole when he received his new sentence, then the court 

shall grant Appellant’s PCRA petition, vacate his judgment of sentence, and 

order a new sentencing hearing. If he was not serving such a sentence, 

then the court shall deny Appellant’s PCRA petition.

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015