Com. v. Navarro, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JUAN NAVARRO,
Appellant No. 1025 EDA 2017
Appeal from the PCRA Order Entered March 24, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0510181-2006
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 29, 2018
Appellant, Juan Navarro, appeals from the post-conviction court’s March
24, 2017 order denying his first petition filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Additionally, Appellant’s counsel,
Stephen T. O’Hanlon, Esq., has filed with this Court a petition to withdraw and
a ‘no-merit’ letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). After careful review, we agree with counsel that the issue Appellant
seeks to raise herein is meritless. Therefore, we affirm the order dismissing
Appellant’s petition and grant counsel’s petition to withdraw.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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The facts of Appellant’s underlying convictions are not pertinent to our
disposition of his appeal. The PCRA court summarized the procedural history
of Appellant’s case, as follows:
On April 25, 2011, following a jury trial before the Honorable
Renee Cardwell Hughes, [Appellant] … was convicted of one count
of third-degree murder (18 Pa.C.S. § 2502(c)). The [c]ourt
immediately imposed a sentence of twenty to forty years[’]
incarceration. Due to the retirement of Judge Hughes, this case
was reassigned to the undersigned judge for post-trial
proceedings on July 6, 2011. The [c]ourt denied post-sentence
motions on August 3, 2011. On November 2, 2012, the Superior
Court affirmed [Appellant’s] judgment of sentence. [Appellant]
was represented at trial, sentencing, and on appeal by David
Rudenstein, Esquire.
On October 4, 2013, [Appellant] filed a pro se petition under
the [PCRA]…. [Attorney] O’Hanlon … was appointed to represent
[Appellant] on August 15, 2014. On August 9, 2015, [Attorney]
O’Hanlon filed an Amended PCRA Petition (“Amended Petition”).
On October 29, 2016, [Attorney] O’Hanlon filed a Supplemental
Amended PCRA Petition (“Supplemental Amended Petition”). On
January 20, 2017, after reviewing [Appellant’s] Amended Petition,
Supplemental Amended Petition, and the Commonwealth’s Motion
to Dismiss, this [c]ourt ruled that the claims set forth in
[Appellant’s] petitions were without merit. That day, pursuant to
Pa.R.Crim.P. 907, the [c]ourt issued notice of its intent to dismiss
the petitions without a hearing (“907 Notice”). On March 24,
2017, the [c]ourt entered an order dismissing [Appellant’s] PCRA
petitions.
PCRA Court Opinion (PCO), 6/22/17, at 1-2 (footnote omitted).
Appellant filed a timely notice of appeal, and the PCRA court ordered
him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. In response, Attorney O’Hanlon filed a Rule 1925(c)(4) statement
indicating his intent to file a petition to withdraw with this Court, but stating
that the issue Appellant sought to raise on appeal was the following:
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1. The PCRA court erred in dismissing Appellant’s PCRA Petition
without a hearing because Appellant has not received sufficient
time credit rendering his present sentence illegal because it is
above the statutory maximum and the PCRA court had
jurisdiction to correct the issue pursuant to Commonwealth
v. Mann, 957 A.2d 746 (Pa. Super. 2008).
Rule 1925(c)(4) Statement, 4/15/17, at 1-2 (footnote omitted). The PCRA
court issued an opinion addressing the above-stated issue on June 22, 2017.
On September 26, 2017, Attorney O’Hanlon filed with this Court a
petition to withdraw and a Turner/Finley no-merit letter. In Turner, our
Supreme Court “set forth the appropriate procedures for the withdrawal of
court-appointed counsel in collateral attacks on criminal convictions[.]”
Turner, 544 A.2d at 927. The traditional requirements for proper withdrawal
of PCRA counsel, originally set forth in Finley, were updated by this Court in
Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006), abrogated by
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),1 which provides:
(1) As part of an application to withdraw as counsel, PCRA counsel
must attach to the application a “no-merit” letter[;]
2) PCRA counsel must, in the “no-merit” letter, list each claim the
petitioner wishes to have reviewed, and detail the nature and
extent of counsel’s review of the merits of each of those claims[;]
3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner’s issues are meritless[;]
____________________________________________
1 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the [Appellant] has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney O’Hanlon filed his
petition to withdraw and no-merit letter with this Court and, thus, our
Supreme Court’s holding in Pitts is inapplicable.
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4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that … the petitioner has
the right to proceed pro se, or with the assistance of privately
retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA counsel
to withdraw; and
6) the court must agree with counsel that the petition is meritless.
Friend, 896 A.2d at 615 (footnote omitted).
Here, Attorney O’Hanlon has filed a petition to withdraw and a no-merit
letter. In that letter, Attorney O’Hanlon sets forth the single issue that
Appellant wishes to have reviewed, and he indicates the nature and extent of
his review of that claim. He also explains why Appellant’s issue is meritless.
Attached to his petition to withdraw, Attorney O’Hanlon includes a letter
addressed to Appellant, informing Appellant that counsel is withdrawing,
stating that counsel has enclosed the no-merit letter, and advising Appellant
of his right to retain private counsel or proceed pro se. Accordingly, Attorney
O’Hanlon has satisfied the first four requirements for withdrawal under
Turner/Finley.
Next, we will conduct our own independent assessment of the record to
determine if the issue presented in Appellant’s petition is meritless. We begin
by noting that this Court’s standard of review regarding an order denying a
petition under the PCRA is whether the determination of the PCRA court is
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supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
As stated supra, Appellant seeks to argue that he has not received
adequate credit for time served, which he believes renders his sentence illegal
and subject to correction by the PCRA court under the rationale of Mann. In
rejecting this claim, the PCRA court explained:
In the issue that [Appellant] wishes to preserve for appeal,
he states that he did not receive “sufficient” credit for time served.
Because that claim is not cognizable under the PCRA, this [c]ourt
was without jurisdiction to address the issue.
It is true that if a defendant is entitled to credit for time
served, but the sentencing court fails to order such credit, the
sentence is illegal, and may be remedied through the PCRA.
Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super.
2007). However, where the sentencing court orders credit for
time served, but [the] defendant takes issue with the calculation
of the appropriate time credit by the Department of Corrections,
the appropriate forum for the claim is an original action in
Commonwealth Court. There is no jurisdiction under the PCRA to
challenge the calculations of the Department of Corrections. See
Commonwealth v. Heredia, 97 A.3d 392, 394-[]95 (Pa. Super.
2014), app[eal] denied, 97 A.3d 392 (Pa. 2014);
Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. Super.
1989).
Here, Judge Hughes’ sentencing order explicitly provided
that: “[] [Appellant] is to receive credit for time served.”
Sentencing Order, dated April 25, 2011. Judge Hughes left the
computation of the time credit to the Department of Corrections.
Since [Appellant] contends that the computation of the proper
credit was not correct, his only remedy is in the Commonwealth
Court. Heredia, 97 A.3d at 394-[]95; Perry, 563 A.2d at 512-
[]13.
The case cited by [Appellant], … Mann, … is not to the
contrary. In Mann, the defendant committed new crimes while
on state parole, and by law, was entitled to have credit for time
served applied to his sentence on those new crimes. The
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sentencing judge, who wanted the time credit to be applied to
[the] defendant’s back[-]time for his parole violation, explicitly
stated in the sentencing order that [the] defendant was to receive
no time credit for any time served and that the time should instead
be applied to the state parole violations. Mann, 957 A.2d at 748.
The Superior Court held that the trial judge’s order providing for
no time credit rendered the sentence illegal, and therefore, the
sentencing court had jurisdiction to correct that error. Id. at 748-
[]49. Unlike in Mann, in the case at bar, the sentencing court
awarded time credit, and any time credit error could only be
attributable to the Department of Corrections’ calculation of that
credit.
Accordingly, [Appellant’s] claim was not cognizable under
the PCRA, and the [c]ourt lacked jurisdiction to address it on the
merits. No relief is due.
PCO at 2-4.
After reviewing the cases relied upon by the PCRA court, we ascertain
no error in the court’s decision to deny Appellant’s petition because his claim
is not cognizable under the PCRA. In any event, we note that according to
Attorney O’Hanlon, Appellant has “received additional time credit during the
PCRA process and, despite requests from … counsel, [Appellant] has not been
able to show why he is entitled to further time credit.” Rule 1925(c)(4)
Statement at 2 n.1; see also Commonwealth’s Brief at 5 n.2 (pointing out
that Appellant received credit for time served).
Given this record, we agree with Attorney O’Hanlon that the PCRA court
did not err in denying Appellant’s petition. Therefore, we affirm the PCRA
court’s order and grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/18
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