Com. v. Pabon, A., Jr. ( 2022 )

J-S41014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEXANDER PABON, JR. :
:
: No. 891 MDA 2022
Appeal from the Order Entered May 19, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001539-2021
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY LAZARUS, J.: FILED DECEMBER 13, 2022
Alexander Pabon, Jr., appeals from the order, entered in the Court of
Common Pleas of York County, dismissing his pro se petition seeking credit
for time served. Both the trial court and the Commonwealth concede that
Pabon’s petition should have been treated as a timely first petition under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Accordingly,
we vacate and remand for further proceedings.
On December 14, 2020, Pabon was arrested and charged with one count
of possession with intent to deliver cocaine.1 On November 8, 2021, Pabon
entered a negotiated guilty plea and was immediately sentenced to 21 to 48
months’ incarceration. Prior to Pabon entering his plea, there was extensive
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
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discussion on the record regarding the proper application of his nearly-one-
year credit for time served. On the advice of his counsel, Pabon ultimately
decided to accept the Commonwealth’s plea offer and to ask the court to make
his sentence effective that day, thereby foregoing his credit on the instant
matter in the hope that the Pennsylvania State Parole Board would apply the
time to his violation, even though there was no guarantee that that would
happen.
Pabon did not file post-sentence motions or a direct appeal and the
parole board failed to grant him a credit towards his back time. On November
24, 2021, Pabon filed a pro se motion to withdraw his guilty plea on the basis
that the trial court should have applied his time credit to the instant sentence
pursuant to Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008)
(holding that if defendant is incarcerated prior to disposition on new charges
and has both a parole board detainer and has failed for any reason to satisfy
bail on new charges, credit for time served must be applied to new sentence
as sentencing condition by sentencing court).
On March 8, 2022, Pabon filed a pro se petition for credit for time spent
in custody. On March 25, 2022, plea counsel filed a motion to withdraw as
counsel, which the court granted on March 28, 2022. Pabon filed another pro
se petition for credit for time spent in custody on March 29, 2022. Pabon
alleged that he had been “ill-advised” by plea counsel regarding the
application of his time credit. On April 27, 2022, Pabon filed a third pro se
petition for credit for time served in custody, again alleging that he had been
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“ill-advised” by counsel. On May 19, 2022, the trial court denied the third
petition.2
Pabon filed a timely notice of appeal. On June 28, 2022, the trial court
appointed counsel to represent Pabon on appeal. Counsel filed a Pa.R.A.P.
1925(b) statement as ordered by the court. Pabon raises the following claim
for our review:
Whether the trial court erred in dismissing [Pabon’s] petition for
time credit, which should have been treated as a PCRA [petition]
affording [Pabon] the right to counsel?
Brief of Appellant, at 4.
It is well-settled that the PCRA is intended to be the sole means of
achieving post-conviction relief. See 42 Pa.C.S.A. § 9542; Commonwealth
v. Haun, 32 A.3d 697 (Pa. 2011). A collateral petition raising an issue that
is cognizable under the PCRA is to be considered a PCRA petition.
Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001).
Here, Pabon filed multiple petitions in which he alleged that, due to the
ineffectiveness of plea counsel, he did not receive the time credit to which he
was entitled. Allegations of ineffectiveness of counsel are cognizable under
the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii); see also Commonwealth v.
Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014) (claim for ineffective
assistance of counsel in connection with advice rendered regarding whether
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2It appears from the certified record that the trial court did not dispose of any
of Pabon’s other filings.
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to plead guilty cognizable under section 9543(a)(2)(ii) of PCRA). Claims
involving the legality of a sentence are also cognizable under the PCRA. See
42 Pa.C.S.A. § 9543(a)(2)(vii); see also Commonwealth v. Menezes, 871
A.2d 204, 207 (Pa. Super. 2005) (“[A] challenge to the trial court’s failure to
award credit for time spent in custody prior to sentencing involves the legality
of sentence and is cognizable under the PCRA.”).
Accordingly, here, the proper course of action for the trial court would
have been to treat Pabon’s petition(s) as filed under the PCRA and appoint
counsel to represent him. See Pa.R.Crim.P. 904(C) (court shall appoint
counsel to represent indigent defendant on first PCRA petition). Therefore,
we vacate the order of the trial court and remand for the appointment of
counsel to either pursue Pabon’s claims under the PCRA or file a
Turner/Finley3 “no-merit” letter, should counsel deem it appropriate.
Order vacated; case remanded with instructions; jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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