J-S25027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDRE B. HERRING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2041 EDA 2016

Appeal from the Judgment of Sentence July 23, 2012

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0012419-2009, 

CP-51-CR-0012797-2009, CP-51-CR-0015763-2009

BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOT, P.J.E.

MEMORANDUM BY RANSOM, J.: FILED JULY 19, 2017

Appellant, Andre B. Herring, appeals from the judgment of sentence of 

ten to twenty years of imprisonment followed by ten years of probation, 

imposed on July 23, 2012, following his open plea to two counts of 

burglary,1one count of attempted burglary, 2and one count of conspiracy.3 

We affirm.

The relevant facts and procedural history are as follows:

Defendant, Andre Herring, has appealed nunc pro tunc from the 

July 23, 2012, order of this [c]ourt imposing judgment of 

sentence. On July 23, 2012, defendant appeared before this 

[c]ourt and entered non-negotiated guilty pleas to various 

charges pursuant, inter alia, to the above bill and term numbers. 

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1 18 Pa.C.S. § 3502

2 18 Pa.C.S. § 901

3 18 Pa.C.S. § 903
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As of CP-51-CR-0012419-2009, defendant pleaded guilty to the 

charge of burglary and received a sentence of ten to twentyyears’ incarceration. As of CP-51-CR-0012797-2009, defendant 

pleaded guilty to burglary and received a sentence of ten to 

twenty years’ incarceration, which sentence was ordered to be 

served concurrently with the sentence imposed as of CP-51-CR0012419-2009. Finally, as of CP-51-CR-00157763-2009, 

defendant pleaded guilty to the charge of attempted burglary 

and received a sentence of two to four years’ incarceration, 

which sentence was ordered to be served concurrently with the 

sentences imposed on the other two charges. When imposing 

[the] sentence, this [c]ourt ordered that defendant should 

receive credit for time served. Defendant filed neither a postsentence motion nor a notice of appeal following the imposition 

of sentence.

On March 11, 2013, defendant filed a pro se petition under the 

Post-Conviction Relief Act, 42 Pa.C.S. § 9741 et seq. Counsel 

was appointed to represent defendant and on March 27, 2015, 

counsel filed an amended petition requesting that defendant be 

granted the right to file a direct appeal from the judgment of 

sentence nunc pro tunc. On May 26, 2016, this [c]ourt issued 

an order granting defendant the right to file a notice of appeal 

nunc pro tunc from the judgments of sentence and denying him 

the right to file post-sentence motions. Defendant filed notice of 

appeal on June 22, 2016, followed by a court-ordered 1925(b) 

statement.

Trial Court Opinion, 7/21/16, at 1-2.4

The trial court issued a responsive opinion. On appeal, Appellant 

raises the following issues for review:

I. Should [A]ppellant’s sentence be vacated and the case be 

remanded to the Court of Common Pleas with direction 

that Appellant be afforded an opportunity to file a nunc pro 

tunc petition to withdraw his guilty plea?

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4 The trial court opinion omits any reference to the conspiracy charge, 

docketed at CP-51-CR-0012419-2009.
J-S25027-17

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II. Should [A]ppellant’s case be remanded to the Court of 

Common Pleas with direction that Appellant be afforded an 

opportunity to file a nunc pro tunc post-sentence motion 

challenging the legality of his sentence?

Appellant’s Brief at 3.

Appellant’s first claim challenges the validity of his guilty plea. 

Appellant does not dispute that he failed to file timely a post-sentence 

motion to withdraw his plea. However, Appellant asserts that the lower 

court failed to advise him that a motion was required in order to preserve his 

challenge. According to Appellant, this failure renders his plea unknowing 

and involuntary. Appellant seeks remand so that he may be permitted to file 

a petition to withdraw his plea nunc pro tunc.

Written post-sentence motions shall be filed no later than ten days 

after the imposition of sentence. Commonwealth v. Green, 862 A.2d 613 

(Pa. Super. 2004); Pa.R.Crim.P. 720(A)(1). Failure to file a post-sentence 

motion will result in waiver. See, e.g., Commonwealth v. Kinney, ---

A.3d ---, *5 (Pa. Super. 2017) (concluding that issues arising from a plea 

were waived because the defendant failed to preserve them in a postsentence motion). A PCRA court may reinstate a petitioner’s right to file 

post-sentence motions nunc pro tunc, provided the petitioner may plead and 

prove “that he was deprived of the right to file and litigate said motions as a 

result of the ineffective assistance of counsel.” Commonwealth v. Liston, 

977 A.2d 1089, 1094 n.9 (Pa. 2009).
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In his PCRA petition, Appellant sought only to reinstate his direct 

appeal rights nunc pro tunc; he made no request to reinstate his right to file 

post-trial motions and thus challenge the validity of his guilty plea. 

Appellant’s claim is therefore waived. See Liston, 977 A.2d at 1094;

Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004) (“Claims not 

raised in the PCRA court are waived and cannot be raised for the first time 

on appeal in this Court. Pa.R.A.P. 302(a).”).

Appellant’s next claim is that this case should be remanded to afford 

Appellant the opportunity to file a nunc pro tunc motion challenging the 

legality of his sentence. Appellant’s Brief at 11. According to Appellant, the 

sentencing court failed to properly calculate his time credit. Id. 

Challenges to the legality of a sentence cannot be waived. 

Commonwealth v. Dickson, 918 A.2d 95, 98 (Pa. 2007) (“[I]f the 

sentence clearly implicates the legality of sentence, whether it was properly 

preserved below is of no moment, as a challenge to the legality of sentence 

cannot be waived.”). A challenge to the failure to award credit for time 

served prior to sentencing does involve the legality of the sentence and as 

such cannot be waived. See Commonwealth v. Beck, 848 A.2d 987, 989 

(Pa. Super. 2004) (“An appellant’s challenge to the trial court’s failure to 

award credit for time spent in custody prior to sentencing involves the 

legality of sentence.”).
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However, here it appears that Appellant’s contention is with the 

computation of his time credit. This Court is not the appropriate venue for 

challenging the computation of time.

If the alleged error is thought to be the result of an erroneous 

computation of sentence by the Bureau of Corrections, then the 

appropriate vehicle for redress would be an original action in the 

Commonwealth Court challenging the Bureau’s computation. If, 

on the other hand, the alleged error is thought to be attributable 

to ambiguity in the sentence imposed by the trial court, then a 

writ of habeas corpus ad subjiciendum lies to the trial court for 

clarification and/or correction of the sentence imposed.

It [is] only when the petitioner challenges the legality of a trial 

court’s alleged failure to award credit for time served as required 

by law in imposing sentence, that a challenge to the sentence 

[is] deemed cognizable as a due process claim in PCRA 

proceedings.

Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014), citing, 

Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. Super. 1989). 

The record reflects that Appellant was given credit for time served 

from 7/28/09 to 12/9/10 and from 7/1/11 to 7/23/12. Open Guilty Plea, 

7/23/12 at 1; Notes of Testimony, Sentencing 7/23/12 at 21-22. It appears 

that the trial court gave Appellant all of the time credit he requested. Id. 

Thus, Appellant’s characterization that he challenges the legality of his 

sentence is inaccurate, and this Court is not the proper venue to address 

Appellant’s miscalculation claims. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/19/2017