J-S67016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. SCOTT ISAAC BOWRA Appellant No. 330 WDA 2014

Appeal from the PCRA Order February 20, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010997-2007
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J. * MEMORANDUM BY MUNDY, J.: FILED DECEMBER 09, 2014 Appellant, Scott Isaac Bowra, appeals from the Febr uary 20, 2014 order, denying relief in response to his self-title d “Post-Sentence Motion,” which we deem to be a denial of a motion filed purs uant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541- 9546. 1 After careful review, we affirm, albeit on a different basis than that relied on by the trial
court. We summarize the procedural history of the case as determined from the certified record as follows. On May 13, 2008, a jury found Appellant

____________________________________________ * Former Justice specially assigned to the Superior Court.

1 As discussed more fully within, Appellant purports to appeal from a February 6, 2014 judgment of sentence. As we concl ude Appellant’s characterization of the procedural posture of this case is faulty, we have amended the caption to reflect the true position of this appeal.J-S67016-14

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guilty of possession of a controlled substance, pos session of a controlled substance with intent to deliver (PWID), and conspi racy. 2 On August 28, 2008, Appellant was sentenced to an aggregate sente nce of five to ten years’ incarceration followed by two years’ probati on. Specifically, Appellant received three to six years for the PWID count, a c onsecutive two to four years for the conspiracy count, and a consecutive t wo years’ probation on the possession count. On direct appeal, this Court vacated the sentence and remanded because the trial court had not conducted a full suppression hearing in response to Appellant’s omnibus pre-tria l motion. See Commonwealth v. Bowra , 13 A.3d 987 (Pa. Super. 2010) (unpublished memorandum). On remand, the trial court, after a f ull hearing, denied Appellant’s suppression motion and reinstated the o riginal sentence on January 3, 2011. Appellant again appealed, and thi s Court affirmed the judgment of sentence on May 4, 2012. See Commonwealth v. Bowra , 50 A.3d 233 (Pa. Super. 2012) (unpublished memorandum) . Appellant did not seek allowance of appeal from our Supreme Court. On December 20, 2012, Appellant filed a pro se PCRA petition. Counsel was appointed and an amended PCRA petition was filed on January 31, 2013. Therein, Appellant raised the legality o f his sentence for the failure of the trial court to merge the possession of controlled substance and

____________________________________________ 2 35 P.S. § 780-113(a)(16), (30), 18 Pa.C.S.A. § 903 , respectively.J-S67016-14

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PWID counts. The PCRA court agreed and provided th e following relief on February 14, 2013.

[Appellant’s] PCRA Petition is GRANTED to the exten t that an amended sentencing order shall be entered, which shall sentence the Petitioner as follows: Cou nt 1: Possession of a Controlled Substance (Heroin) with Intent to Deliver Said Controlled Substance, 3 to 6 years incarceration; Count 2: Possession of a Controlled Substance (Heroin), merged for purpose of sentencing with Count I; and, Count 3: Criminal Conspiracy, 2 to 4 years of incarceration to be followed by a consecutive period of 2 years probation. PCRA Court Order, 2/14/13, at 1. No appeal was tak en from the PCRA court’s February 14, 2013 order. On February 10, 2014, Appellant filed a counselled post-sentence motion. Therein, Appellant references the trial co urt’s issuance, on February 6, 2014, of “a Form DC-300B Court Commitment State of County Correctional Institution” that he purports resenten ced Appellant in accordance with the February 14, 2013 PCRA order. Appellant’s PostSentence Motion, 2/10/14, at 3-4, ¶ 17. In his pos t-sentence motion, Appellant sought modification of his sentence in co nsideration of his rehabilitative efforts since his initial 2008 sente ncing. Id. at 4 ¶ 18. The trial court denied Appellant’s post-trial motion, w ithout hearing or accompanying reasons, on February 20, 2014. Appellant filed a notice of appeal on February 27, 2014, purportedly from the “judgment of sentence—amended February 6, 2 014.” Appellant’sJ-S67016-14

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Notice of Appeal, 2/27/14, at 1. Although not orde red to do so, Appellant filed a concise statement of errors complained of o n appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) co ntemporaneously with his notice of appeal. The trial court filed its Ru le 1925(a) opinion on July 14, 2014, addressing the merits of Appellant’s discreti onary aspects of sentencing issue. On appeal, Appellant raises the following issue fo r our review.

1. Whether the [trial court] failed to consider—in light of [Appellant’s] conduct since imposition of the August, 6, 2008 sentence in this matter—all of the factors contained in 42 Pa.C.S. §§ 9721(b) and/or 9781(d) prior to denying [Appellant’s] February 10, 2014 Post-Sentence Motion? Appellant’s Brief at 4. We first address the Commonwealth’s contention tha t the trial court’s apparent treatment of Appellant’s post-sentence mot ion as timely filed is erroneous. Commonwealth Brief at 9. The Commonwea lth asserts Appellant’s characterization of the trial court’s i ssuance of Pennsylvania Department of Corrections form DC-300B as a sentenc ing order is not

correct. 3 Id. at 9, n.7. We agree. The DC-300B form is not a court order imposing a s entence. It serves as a commitment form addressed to the Department of Corrections.

____________________________________________ 3 We note the DC-300B form referenced by Appellant i n his notice of appeal and appellate brief is not contained in the certifi ed record.J-S67016-14

- 5 - Form DC–300B is a commitment document generated by the Common Pleas Criminal Court Case Management System. See 37 Pa.Code § 96.4; 42 Pa.C.S.A. § 9764. Section 9764 of the Judicial Cod e sets forth the procedure associated with transfer o f an inmate into DOC custody and provides that, on commitment of an inmate, the transporting official must provide the DOC with a copy of the trial court ’s sentencing order and a copy of the DC–300B commitment form. See 42 Pa.C.S.A. § 9764(a)(8). Commonwealth v. Heredia , 97 A.3d 392, 394 n.3 (Pa. Super. 2014). The amended sentence in this case was imposed on F ebruary 14, 2013, by the PCRA court’s order granting relief and pronouncing the new sentence. “As a practical matter... a defendant begi ns to serve his or her sentence immediately after the pronouncement of sen tence. The pronouncement of sentence is not merely information al. It is the actual imposition of penalty.” Commonwealth v. Nahavandian , 954 A.2d 625, 630 (Pa. Super. 2008), quoting Commonwealth v. Green , 862 A.2d 613, 620 (Pa. Super. 2004). Accordingly, Appellant’s po st-sentence motion was untimely. See Pa.R.Crim.P. 720(A)(1) (requiring a post-sentence motion to be filed within 10 days of the imposition of senten ce). Further, absent the filing of a timely post-sentence motion, any direct appeal from the judgment of sentence must be filed within 30 days of the dat e of the imposition of the

sentence. Id. at 720(A)(3); Pa.R.A.P. 903(c)(3). Additionally, a sentencing court loses jurisdiction to modify a sentencing ord er more than 30 days after it is entered or after an appeal has been filed. 4 2 Pa.C.S.A. § 5505.J-S67016-14

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In light of the above, the Commonwealth recognizes that we must determine whether Appellant’s self-titled post-sent ence motion should have been treated as an untimely post-sentence motion or as a PCRA petition. Commonwealth’s Brief at 9. If treated as an untime ly post-sentence motion, Appellant’s appeal should be quashed as patently un timely, depriving this court of jurisdiction. “[T]he timeliness of an app eal implicates our jurisdiction and may be raised sua sponte .” Commonwealth v. Trinidad , 96 A.3d 1031, 1035 (Pa. Super. 2014) (citations omi tted). We note again that a timely appeal must be filed within 30 days o f the imposition of a judgment of sentence. Pa.R.A.P. 903(c)(3). The pe riod for filing an appeal may not be enlarged by this Court. Id. at 105(b). However, this Court has previously treated filings , raising discretionary aspects of sentencing claims, entered after the dir ect appeal period has expired, as PCRA petitions. See Commonwealth v. Taylor , 65 A.3d 462, 465-468 (Pa. Super. 2013) (recognizing “that an unt imely post-sentence motion filed after finality of judgment is to be tr eated as a PCRA petition[]”), citing Commonwealth v. Evans , 866 A.2d 442, 443 (Pa. Super. 2005), and Commonwealth v. Guthrie , 749 A.2d 502, 503 (Pa. Super. 2000). 4

____________________________________________ 4 The Taylor

panel recognized a tension between its holding and the holding in Commonwealth v. Wrecks , 934 A.2d 1287 (Pa. Super. 2007) (concluding the trial court properly treated Wrecks ’ filing, after his sentence was final, as an untimely post-sentence motion). Taylor criticized Wrecks for essentially ignoring Evans and Guthrie and relying on cases with analyses that are no longer applicable. See Taylor , supra at 467, n.4.J-S67016-14

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Accordingly, we conclude the trial court should hav e treated Appellant’s selftitled post-sentence motion as a timely PCRA petiti on. 5 Instantly, as noted above, Appellant filed a couns eled motion, and said counsel continues to represent Appellant. Thus, th ere is no need to remand for appointment of counsel. Cf. Evans , supra , Guthrie , supra (remanding for appointment of counsel when trial court failed to treat untimely pro se post-sentence motions as PCRA petitions). We there fore proceed to determine if the trial court’s order denying relief is nevertheless proper when Appellant’s motion is viewed as a PCRA petition. “ [W]e, as an appellate court, are empowered to affirm [the PCRA court’s] d ecision on any ground without regard to the ground relied upon by [the PC RA court] itself.” Commonwealth v. McKeever , 947 A.2d 782, 786 (Pa. Super. 2008) (internal quotation marks and citation omitted). We reiterate the following principles guiding our c onsideration of an appeal from the denial of PCRA relief.

“On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court’s findings are supported by the record and without legal error.” Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013) (citation omitted)[, cert. denied , Edminston v. Pennsylvania , 1345 S. Ct. 639

____________________________________________ 5 There being no direct appeal, Appellant’s amended sentence became final on March 16, 2013, 30 days after its imposition on February 14, 2013. See Pa.R.A.P. 903(c)(3). Accordingly, Appellant had un til March 16, 2014 to file a timely PCRA petition, unless an exception to the one-year time requirement applies. See 42 Pa.C.S.A. § 9545(b).J-S67016-14

- 8 - (2013)]. “[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level.” Commonwealth v. Koehler , 614 Pa. 159, 36 A.3d 121, 131 (2012) (citation omitted). “The PCRA court’s credibility determinations, when supported by the record, are binding on this Court.” Commonwealth v. Spotz , 610 Pa. 17, 18 A.3d 244, 259 (2011) (citation omitted). “However, this Court applies a de novo standard of review to the PCRA court’s legal conclusions.” Id. Commonwealth v. Medina , 92 A.3d 1210, 1214-1215 (Pa. Super. 2014) ( en banc ). Further, in order to be eligible for PCRA relie f, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors liste d at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previou sly litigated nor waived. Id. § 9543(a)(3). “A claim is waived under the PCRA i f, inter alia, it could have been raised on direct appeal.” Commonwealth v. Price , 876 A.2d 988, 993 (Pa. Super. 2005) (citation omitted), appeal denied , 897 A.2d 1184 (Pa. 2006), cert. denied , 549 U.S. 902 (2006). Instantly, Appellant’s sole issue is a challenge t o the discretionary aspect of his sentence. Appellant’s Brief at 12. This issue was not raised in a timely post-sentence motion or a timely direct ap peal. Consequently, the issue is “previously waived” and relief under the P CRA is unavailable. See 42 Pa.C.S.A. § 9543(a)(3); Price , supra . As no claim cognizable by the PCRA has been advanced by Appellant in his counsell ed February 10, 2014 motion, we conclude the denial of relief by the tri al court was legally correct.J-S67016-14

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In sum, we determine that Appellant’s characteriza tion of the trial court’s issuance of the Department of Corrections f orm DC-300B as an imposition of sentence is mistaken. We conclude th e trial court should have treated Appellant’s counselled motion as a petition filed pursuant to the PCRA. We nevertheless affirm the trial court’s dec ision to deny relief on the alternative ground that Appellant failed to assert a claim cognizable under the PCRA. Accordingly, we affirm the trial court’s February 20, 2014 order denying relief, albeit on other grounds. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/9/2014J-S67016-14

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