Com. v. Franklin, A.

• Court: Superior Court of Pennsylvania
• Decided: August 20, 2020
• Docket: 2985 EDA 2019
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY J. FRANKLIN : : Appellant : No. 2985 EDA 2019

Appeal from the Order Entered September 19, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007203-2006

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: Filed: August 20, 2020

Anthony Franklin appeals, pro se, from the order entered in the Court

of Common Pleas of Montgomery County denying his “Petition for Credit for

Imprisonment while in Custody prior to Sentence.” We affirm.

Franklin entered a negotiated guilty plea to robbery and conspiracy to

commit robbery.1 In exchange for his plea, the trial court sentenced Franklin

to eight and a half to twenty years’ incarceration. He did not file a post-

sentence motion or direct appeal.

Franklin filed a timely pro se petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court appointed

counsel, who filed a Turner/Finley no merit letter and was permitted to

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* Retired Senior Judge assigned to the Superior Court. 1 See 18 Pa. C.S.A. §§ 3701(a)(1)(v) and 903(a)(1). J-S29005-20

withdraw. The court issued a notice of its intent to dismiss the petition without

a hearing pursuant to Pa.R.Crim. 907, and later dismissed it. Franklin did not

appeal that ruling.

In the years that followed, Franklin filed successive petitions for

collateral relief, none of which merited relief.2 He filed the instant petition,

alleging he was not awarded credit for time served. The trial court denied

Franklin’s petition on the basis that his claim was previously litigated.3

Franklin filed this timely pro se appeal.

Franklin raises four issues on appeal, all of which claim he was denied

credit for time served. See Appellant’s Brief, at 10-13. In each issue, the

assignment of error oscillates between his plea counsel, the Commonwealth,

and the trial court. See id.

At the outset, we note Franklin identified the filing underlying this appeal

as a “Petition for Credit for Imprisonment while in Custody prior to Sentence”

and the trial court construed the petition as such. Our Supreme Court has

held, however, that the PCRA subsumes all forms of collateral relief. See

Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007). A challenge to the

trial court’s failure to award credit for time served is a collateral attack upon

the legality of the sentence and is cognizable under the PCRA. See

2Following the dismissal of his first PCRA petition, Franklin filed subsequent PCRA petitions as well as a Writ of Habeas Corpus.

3Franklin filed a petition on the same matter, which the trial court dismissed. See Trial Court Opinion, 11/27/19, at 2.

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Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007). Therefore,

we must address Franklin’s petition under the framework of the PCRA. See 42

Pa.C.S.A. § 9542.

We begin by addressing the timeliness of Franklin’s petition. Generally,

the PCRA grants jurisdiction to hear a collateral attack on a conviction only if

a petition is filed in the year after the judgment of sentence becomes final.

See Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). The judgment of

sentence is finalized when the petitioner’s direct appeal rights have been

exhausted. See id., at 17. After the expiration of the one-year period, a

petitioner must plead and prove one of three enumerated exceptions to the

time bar in order to establish jurisdiction under the PCRA. See id.

In this case, the trial court sentenced Franklin for his crimes on

December 5, 2007. Franklin had thirty days from the date of the judgment of

sentence to file a notice of appeal to this Court. See Pa.R.A.P. 903(a) (“Except

as otherwise prescribed by this rule, the notice of appeal required by Rule 902

(manner of taking appeal) shall be filed within 30 days after the entry of the

order from which the appeal is taken.”). Franklin did not pursue a post-

sentence motion or direct appeal. As such, his judgment of sentence became

final on January 4, 2008. See 42 Pa.C.S.A. § 9542(b)(3).

Franklin filed a timely pro se PCRA petition on October 10, 2008, which

the PCRA court ultimately dismissed. He filed the instant PCRA petition

(“Petition for Credit for Imprisonment while in Custody prior to Sentence”)

almost eleven years later on September 5, 2019. Therefore, Franklin’s petition

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is facially untimely, and we lack jurisdiction to decide this appeal unless

Franklin pled and proved one of the three enumerated exceptions to the one-

year time bar in the PCRA.

Franklin did not attempt to plead or prove any of the timeliness

exceptions in his petition. Accordingly, we are without jurisdiction to address

the merits of Franklin’s petition.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/20

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