Com. v. Norman, A. ( 2016 )


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  • J-S17041-16
    
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
    
    
                          v.
    
    ANDREW KENNETH NORMAN
    
                                 Appellant                No. 1404 WDA 2015
    
    
                        Appeal from the Order August 27, 2015
           in the Court of Common Pleas of Fayette County Criminal Division
                           at No(s):CP-26-CR-0002027-2012
    
    BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
    
    MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 09, 2016
    
            Pro se Appellant, Andrew Kenneth Norman, appeals from the order
    
    dismissing his petition to have the trial court reissue his sentencing order.
    
    Appellant claims the court had jurisdiction to grant his petition to reissue his
    
    prior sentencing order. He maintains he does not want a different sentence.
    
    Appellant opines that a reissued sentencing order would confirm to the
    
    Pennsylvania Department of Corrections (“DOC”) that the court sentenced
    
    him to a flat ninety days’ imprisonment, rather than the DOC’s interpretation
    
    of the order as imposing a sentence of ninety to 180 days’ imprisonment.
    
    We affirm.
    
    
    
    
    *
        Former Justice specially assigned to the Superior Court.
    J-S17041-16
    
            We glean the facts from the record.    On August 7, 2013, Appellant
    
    pleaded guilty to, inter alia, driving while operating privilege was suspended1
    
    (“DUS”). On September 3, 2013, the court docketed its sentencing order,
    
    which in pertinent part follows: “(5) undergo imprisonment at a State
    
    Correctional Institution for the mandatory period of ninety (90) days.”
    
    Order, 9/3/13. Appellant did not file a direct appeal. On July 2, 2014, the
    
    court docketed Appellant’s Post Conviction Relief Act petition, which the
    
    court denied on September 8, 2014.
    
            On October 28, 2014, and June 16, 2015, Appellant apparently
    
    contacted the DOC.     Ex. C to Appellant’s Petition for the Court to Reissue
    
    Corrected Sentencing Order. The DOC responded to Appellant’s contacts in
    
    a memo dated July 27, 2015:
    
               I am in receipt of your letter dated 10/28/2014 and
               06/16/2015. Your case has been computed using the
               attached information provided by the county. The [DOC]
               received a written order and DC300B for CP2027-2012.
               The written order does not clarify whether the 90 day
               sentence is to be applied to the minimum only. The
               DC300B does show the 90 day sentence is to be applied to
               the minimum and the maximum. Therefore it was applied
               to both. If you believe these orders are incorrect, please
               have the county send us corrected documents and we will
               adjust your case accordingly.
    
    Id.
    
    
    
    
    1
        75 Pa.C.S. § 1543(b)(1.1).
    
    
    
    
                                         -2-
    J-S17041-16
    
          On August 19, 2015, within a month of the DOC memo, Appellant filed
    
    the instant petition to reissue sentencing order. Attached to the petition was
    
    the DOC memo, a court form confirming Appellant’s sentence of ninety days’
    
    imprisonment, and a DOC form stating that for Appellant’s DUS conviction,
    
    he has a minimum sentence of ninety days and a maximum sentence of
    
    ninety days.    On August 27, 2015, the trial court dismissed Appellant’s
    
    petition on the basis that it lacked jurisdiction.      On August 31, 2015,
    
    Appellant timely appealed.2       Appellant also timely filed a court-ordered
    
    Pa.R.A.P. 1925(b) statement.
    
          Appellant raises the following issue:
    
             Did the lower court err in denying [Appellant’s] Motion for
             the Court to Reissue Corrected Sentencing Order where it
             concluded that it did not have jurisdiction to grant the
             motion?
    
    Appellant’s Brief at 7.
    
          Appellant argues that the court sentenced him to a flat ninety-day
    
    sentence of imprisonment. According to Appellant, the DOC construed the
    
    sentence as imposing a minimum term of ninety days and a maximum term
    
    of ninety days added to the minimum term of ninety days, for a total of 180
    
    days’ imprisonment.       Appellant therefore asked the court to “reissue” the
    
    sentencing order and forward a copy to the DOC. He asserts the court has
    
    2
     See generally Commonwealth v. Wilson, 
    911 A.2d 942
    , 944 n.2 (Pa.
    Super. 2006) (discussing prisoner mailbox rule).    The court docketed
    Appellant’s notice of appeal on September 14, 2015.
    
    
    
    
                                          -3-
    J-S17041-16
    
    jurisdiction to reissue an order without any changes “in the interest of
    
    making sure that the order is followed.” Id. at 11. We hold the trial court
    
    lacked jurisdiction and thus affirm the order below.
    
          We addressed our appellate jurisdiction in the seminal case of
    
    Commonwealth v. Perry, 
    563 A.2d 511
     (Pa. Super. 1989):
    
             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 was 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 was deemed cognizable as a due
             process claim in PCRA proceedings. A challenge to the
             [Department] of Correction’s computations or construction
             of the terms of sentences imposed is neither a direct nor
             even a collateral attack on the sentences imposed; and so,
             such claims were not deemed cognizable in PCHA
             proceedings. Because [the defendant] has not challenged
             the trial courts’ sentences, but has challenged the
             [Department] of Correction’s computations or construction
             of the sentences, it is unnecessary to determine whether
             the analysis in Commonwealth v. Walker, [
    428 A.2d 661
     (Pa. Super. 1981)], applies to actions brought under
             the new PCRA. It is enough, for the present, to note that a
             challenge to a [Department] of Corrections’ computation or
             construction of a sentence (or sentences) imposed may not
             be brought by a PCRA petition.
    
    
    
    
                                         -4-
    J-S17041-16
    
    Id. at 512-13 (some citations omitted).       Accordingly, the Perry Court
    
    affirmed the dismissal of the defendant’s PCRA petition seeking correction of
    
    an allegedly miscalculated sentence. Id. at 512.
    
         Instantly, Appellant filed a petition to have the court reissue his
    
    sentencing order to have the DOC construe his sentence as imposing a flat
    
    ninety-day term of imprisonment instead of a minimum term of ninety days
    
    and a maximum term of 180 days.        Appellant has challenged the DOC’s
    
    construction of the trial court’s sentence. See Perry, 563 A.2d at 512-13.
    
    Thus, Appellant should bring an action in the Commonwealth Court, and we
    
    affirm the order below.3 See id.
    
         Order affirmed.
    
    
    
    Judgment Entered.
    
    
    
    
    Joseph D. Seletyn, Esq.
    Prothonotary
    
    Date: 6/9/2016
    
    
    
    
    3
      We expressly leave for the Commonwealth Court to rule on the merits of
    Appellant’s issue. See generally Commonwealth v. Klingensmith, 
    650 A.2d 444
    , 447-48 (Pa. Super. 1994) (holding trial court could impose flat
    ninety-day sentence for DUS conviction).
    
    
    
    
                                        -5-
    

Document Info

DocketNumber: 1404 WDA 2015

Filed Date: 6/9/2016

Precedential Status: Precedential

Modified Date: 6/9/2016